Overstayer from NZ/Wrong Visa/Bad Advice, please help us!!

[KiwisGirl]

Hi everyone,

We really need your help and advice right now.. i will try to explain our situation as quickly as i can..

I am a uk citizen and always have been. My boyfriend is from New zealand and have dual citizenship with australia, He met his ex wife about 13 years ago and they married over 6 years ago (in the uk) and at the time were living in australia, she is a uk citizen and after a couple of years they moved back to the uk to be near her family. By this time they had 2 baby girls.

They paid $1500 (australian dollars) for a visa for Matt (my boyfriend), the visa they requested was one to come to live in the uk indeffinately. They had to prove their relationship and so on which they did and he was given a visa saying "settlement/spouse" ~ they were both under the impression that the to and from dates on this visa were the time in which they had to come to the uk and settle.
(it might be worth mentioning here that his ex wife is a cop so the fact that even she was under this impression suggests that this is catogorically what they were told!)

Since then their marraige has broken down and they are in the final stages of divorce (although legally still married as decree absolute hasnt been declared yet).. they have 2 girls who are british citizens and are 6 and 3 years old.

In the last week through applying for a new job, Matt has discovered that his visa is no longer valid and he is an overstayer, that he was suppose to take a knowledge of life int he uk test by may of this year. (he has no idea this was the case until calling immigration. He also made a call to them a few months ago to find out his visa status due to the divorce and was assured that he had no issues regarding remaining in the country!)

he has done all the right things in contacting UKBA and immigration both here and in australia where the visa was issued and told them that the 2 year conditional visa he was given is not what he asked for and even so he was never informed that he had to take the test and no-one will help him, they all basically say it's not their problem and to leave the country!

He is getting legal advice but that tends to just be "apply for ILR" which is all well and good but...

1) from what we've read his marraige for 4+ years prior to coming to the UK should have given him IRL to begin with?
2) the UK high commision in Oz have basically agreed that he should have taken the text before he left Oz and then been given ILR.. he wasnt offered this or even told about it.. surely this is their fault? but they wont take responsibility
3) the divorce is going to be an issue? ... although his ex wife and myself of course, will back him up in trying to keep him in this country and the young kids are reason for him to stay too? (his current employer will support him too) will this affect his rights?
4)he's from a commonwealth country and his first and only language is english.. some websites seem to say this exempts him from the test and others say it doesnt
5) prior to meeting his wife her worked here for 2 years (knowledge of uk life?)
6) we dont have the kind of money required to spare to fix this mistake!

no-one will help us.. it seems like he's been given the wrong visa and/or the wrong information and the only advice we can get is to leave the country and/or apply for a new visa.

this is affecting us massivly because it means he's it about to lose a job, and his kids are about to lose a dad, i am about to lose my boyfriend/rock and no-one will help us... any advice would be amazing

Thank you,
Lina

[PaperPusher]

Does the visa say "KOL required"?

The test is only offered in the UK by the way, hence the visa issued outside the UK that is conditional on the test being taken later.

It is not an English test, but a test of knowledge of the UK.

If he has legal advice he should listen to his advisors.

Having children in the UK makes his case stronger.

[KiwisGirl]

hiya thanks so much for replying, i'm going out of my mind worrying here.

it does say KOL REQ .. which we now know means the test is required but with all due respect to the immigration people, that means abosultely nothing to the average joe unless you are told or informed of it's meaning or that you will have to take a test ... we knew nothing of the test until this last week when he rang UKBA to check his visa was ok... surely they have an obligation to tell you this stuff?

[KiwisGirl]

and surely his 4+ year (prior to moving here) marraige makes the "KOL REQ" void anyway?

[PaperPusher]

No it does not.

[KiwisGirl]

ok, thank you, that makes more sense about the uk test only being offered in the uk ~ thank you ~ god knows why no-one could tell us this in our recent phone calls!!

has anyone else got any advice?

especially for making the new application, regarding his ex wife/friend, the kids, our relationship, his work, anything that will help back his case.

sooo appreciated, thank you

[geriatrix]

SET(M) (i.e. - settlement on the basis of marriage to a settled person / British citizen) does not require valid leave, but the problem here is that the relationship based on which he was granted leave has now broken down .. and therefore he cannot apply for settlement on the basis of that relationship.

Questions:
1. Does he live with you? If so, since when have you two been living together?
2. Subsequent to divorce coming through, who will the children stay with? If the mother, will the father have access rights?

[KiwisGirl]

Hiya thank you for replying to me.

In answer to your questions, we've been living together for 1 year but other than friends/ his boss' testimony we can only prove recent abode together.

as far as the kids, currently the kids live with his ex wife but we have them on average every two weeks for a weekend, she is willing o support his claim
Though if that helps?

We are also (obviously?) a genuine couple in a genuine relationship... As was his previous marriage (they were together 13 years in total) and we have been discussing marraige and trying for children of our own anyway and I'm pretty sure I can get evidence of both these cases from before we discovered he's an overatayer. Would this help?

Thanks again xx

[vinny]

Child access may be an option. However, he cannot apply in-country without valid spouse leave.

[KiwisGirl]

thank you vinny, i will look into that too

we have a list of things to get together as proof for his application, is there anything anyone can advise me would be particularly useful?

it's heartbreaking to have to use personal letters and pictures that the little ones have drawn/written us as evidence that they're his and that we love them/they love us.

fine invade our privacy as a couple but the kids.. *sigh*