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[Janey142]

Hi, to cut a loooong story short, my fiancee is a south african overstayer. He came in to the uk on his mum's british passport as she was born in the uk. she never bothered to sort out his paperwork when he was 16 or even offer to help him and now he is stuck in a loophole of being too old to apply for a british passport based on his parents and having to apply as an individual, when he himself is south african. His whole family is british, he just so happened to be born in south africa. We have been trying for so long to sort out what he can do but he has been told by his lawyer that if he goes back to south africa, he wont be allowed back. He has also been told that we CAN'T get married because he doesn't have a status. It's a catch 22.

Anyway I have been thinking article 8 since his parents and grandparents are british and he has a british fiancee. He also has been through the scottish education system and could get into uni with his grades.

My question is, his lawyer has said that he has to try EVERY application before he can apply via an FLR form (right to home and personal life), this means about 3 years and £12000 of probably useless applications that aren't relevant to him. she says if he sends it and hasn't tried everything then they wont even consider it. Is this true? Or is she after money, because this is his best chance and he is wasting his life enough already.

Thank you for all your help

[vinny]

If he was born in 1983 or after, then he is automatically British.

Else, see also Can I register as a British citizen if I was born before 1983 to a British mother? and Chapter 7: Registration by entitlement of certain people born before 1983 to women who were citizens of the United Kingdom and colonies.

[Greenie]

In additional to vinny's post- what your solicitor is saying about exhausting every application before applying on form FLR O is nonsense. If he doesn't meet the requirements for citizenship-which you should check using the links provide above, and doesn't fit in any relevant categories for leave to remain under the rules then applying for discretionary leave on form FLR O is his best option.
There's no point 'trying every other application first' if he doesn't meet the rules for that application.
Has she said what applications she is referring to?

When was your fiance born? When did he come to the UK?

[Greenie]

In additional to vinny's post- what your solicitor is saying about exhausting every application before applying on form FLR O is nonsense. If he doesn't meet the requirements for citizenship-which you should check using the links provide above, and doesn't fit in any relevant categories for leave to remain under the rules then applying for discretionary leave on form FLR O is his best option.
There's no point 'trying every other application first' if he doesn't meet the rules for that application.
Has she said what applications she is referring to?

When was your fiance born? When did he come to the UK?

[Janey142]

In additional to vinny's post- what your solicitor is saying about exhausting every application before applying on form FLR O is nonsense. If he doesn't meet the requirements for citizenship-which you should check using the links provide above, and doesn't fit in any relevant categories for leave to remain under the rules then applying for discretionary leave on form FLR O is his best option.
There's no point 'trying every other application first' if he doesn't meet the rules for that application.
Has she said what applications she is referring to?

When was your fiance born? When did he come to the UK?

He was born in 1989 and came into the uk 8 years ago.

[Janey142]

If he was born in 1983 or after, then he is automatically British.

Else, see also Can I register as a British citizen if I was born before 1983 to a British mother? and Chapter 7: Registration by entitlement of certain people born before 1983 to women who were citizens of the United Kingdom and colonies.

That's the problem, he came in after 1983 with his british mother but they are not saying he is automaticly british. The wont issue him a passport.

[vinny]

Why won't they issue a British passport?

If there's doubt, then apply for confirmation of British nationality status.

[Janey142]

Why won't they issue a British passport?

If there's doubt, then apply for confirmation of British nationality status.

We have no idea. And his british nationality confirmation application was rejected.

[Greenie]

Why won't they issue a British passport?

If there's doubt, then apply for confirmation of British nationality status.

We have no idea. And his british nationality confirmation application was rejected.

for what reasons did they reject his british nationality confirmation application?

[Janey142]

Why won't they issue a British passport?

If there's doubt, then apply for confirmation of British nationality status.

We have no idea. And his british nationality confirmation application was rejected.

for what reasons did they reject his british nationality confirmation application?

I think it was because his mum's birth was registered with the british consulate within south africa and not actually in the uk. They moved to the uk when she was a week old and she has always been classed as british. It should have made no difference as she was registered at birth as british, by a british family. To be honest the letter was quite generic and just stated that he didn't meet the grounds based on his family. It's such a mess.

[newperson]

I'm not sure you're being clear with your information, which is easy to do. British nationality law is complicated.

You say here that your fiancé's mother was born in the UK:

Hi, to cut a loooong story short, my fiancee is a south african overstayer. He came in to the uk on his mum's british passport as she was born in the uk.

But then more recently, you say that she was born in South Africa:

I think it was because his mum's birth was registered with the british consulate within south africa and not actually in the uk. They moved to the uk when she was a week old and she has always been classed as british. It should have made no difference as she was registered at birth as british, by a british family.

There actually is a world of difference in where the mother was born. Had she been born in the UK, she would have been "British otherwise than by descent". This would have allowed her to pass UK citizenship on to her son. However, unless the mother's parents were on official UK government business ("Crown service") at the time of her birth in South Africa, her registration at the UK consulate in ZA would have rendered her "British by descent". People who are British by descent ARE British, but they are not able to pass to automatically pass that nationality on to the next generation...i.e., your fiancé.

Section 3(2) of the British Nationality Act 1981 does make provision to register children of British by descent parents if (1) the parent has lived in the UK for three years prior to the child's birth AND (2) the registration application is lodged before the child's first birthday. (This was changed to the 18th birthday a few years ago, but that doesn't help things here). It seems as if your fiancé's family unfortunately dropped the ball on this one. So he's not British, although he could've been had the proper papers been filed before his turning one in 1990.

I can see how you're irritated by all this. But most British people don't get that there's a difference between British by descent and British otherwise than by descent (e.g., by birth, naturalisation, etc.). There are consequences to the difference. Have a look at this Wikipedia article to bring you and his family generally up to speed:

http://en.wikipedia.org/wiki/British_nationality_law

He will likely need to go back to ZA and get a fiancé/spouse visa to be with you here. His overstaying won't be a bar for that. The solicitor who told you that he won't be let back in is rubbish. Unless your fiancé is some sort of mega-criminal, it will probably be a very straight-forward application. Making an application in the UK, on the other hand, would be a very long, drawn-out process that would generate some nice legal fees along the way.

Alternatively, he might apply for an Ancestry visa if he can get a UK-born grandparent's birth certificate and other paperwork. But again, he'll have to go back to ZA. His overstaying might be an issue in that application.

http://www.ukba.homeoffice.gov.uk/visas ... -ancestry/

This sounds like a trying situation. I hope you all find a way through it.

[Janey142]

I'm not sure you're being clear with your information, which is easy to do. British nationality law is complicated.

You say here that your fiancé's mother was born in the UK:

Hi, to cut a loooong story short, my fiancee is a south african overstayer. He came in to the uk on his mum's british passport as she was born in the uk.

But then more recently, you say that she was born in South Africa:

I think it was because his mum's birth was registered with the british consulate within south africa and not actually in the uk. They moved to the uk when she was a week old and she has always been classed as british. It should have made no difference as she was registered at birth as british, by a british family.

There actually is a world of difference in where the mother was born. Had she been born in the UK, she would have been "British otherwise than by descent". This would have allowed her to pass UK citizenship on to her son. However, unless the mother's parents were on official UK government business ("Crown service") at the time of her birth in South Africa, her registration at the UK consulate in ZA would have rendered her "British by descent". People who are British by descent ARE British, but they are not able to pass to automatically pass that nationality on to the next generation...i.e., your fiancé.

Section 3(2) of the British Nationality Act 1981 does make provision to register children of British by descent parents if (1) the parent has lived in the UK for three years prior to the child's birth AND (2) the registration application is lodged before the child's first birthday. (This was changed to the 18th birthday a few years ago, but that doesn't help things here). It seems as if your fiancé's family unfortunately dropped the ball on this one. So he's not British, although he could've been had the proper papers been filed before his turning one in 1990.

I can see how you're irritated by all this. But most British people don't get that there's a difference between British by descent and British otherwise than by descent (e.g., by birth, naturalisation, etc.). There are consequences to the difference. Have a look at this Wikipedia article to bring you and his family generally up to speed:

http://en.wikipedia.org/wiki/British_nationality_law

He will likely need to go back to ZA and get a fiancé/spouse visa to be with you here. His overstaying won't be a bar for that. The solicitor who told you that he won't be let back in is rubbish. Unless your fiancé is some sort of mega-criminal, it will probably be a very straight-forward application. Making an application in the UK, on the other hand, would be a very long, drawn-out process that would generate some nice legal fees along the way.

Alternatively, he might apply for an Ancestry visa if he can get a UK-born grandparent's birth certificate and other paperwork. But again, he'll have to go back to ZA. His overstaying might be an issue in that application.

http://www.ukba.homeoffice.gov.uk/visas ... -ancestry/

This sounds like a trying situation. I hope you all find a way through it.

Sorry that I got so confused.. his mother is the type of person that asking things like where she was born or got married etc is like squeezing blood from a stone. Hence why we are in this awful position. Your guidance has been so helpful I am so incredibly grateful.

Can I ask if there is some way I can get confirmation that he would be fine coming back in? Is it written somewhere or can I contact someone? I am just very concerned about him leaving and finding out he is stuck out there. He has no one over there and no prospects, everything he has is here.

I guess my next step is to save money so he can go back and support himself while this application processes. We haven't been living together because I simply cannot afford a home for 2 when he doesn't work, will this matter? Thanks again.

[newperson]

Have a look here:

http://www.ukba.homeoffice.gov.uk/polic ... /rfl/rfl5/

Paying particular attention to "RFL5.4 When does rule 320(7B) not apply":

Under paragraph 320(7C) of the immigration rules, you must not refuse an applicant under 320(7B) if they are applying in the following categories:

- Spouse, civil partner, unmarried or same-sex partner (Paragraphs 281 or 295A);
- Fiancé(e), or proposed civil partner (Paragraph 290);

Be careful with your finances. You need to be able to show that you and your fiancé will be able to support yourselves without his relying on public funds. I don't know much about the application practicalities of that. The "family members" section of this forum might be able to offer you more help with that.

Good luck!

These links may also be helpful:

http://www.ukba.homeoffice.gov.uk/polic ... e/ecg/set/
http://www.ukba.homeoffice.gov.uk/visas ... spouse-cp/
http://www.ukba.homeoffice.gov.uk/visas ... oposed-cp/

[vinny]

Can I ask if there is some way I can get confirmation that he would be fine coming back in?

320(11) may be considered.

Didn't he apply for a child settlement visa before initially entering the UK?

[Janey142]

Can I ask if there is some way I can get confirmation that he would be fine coming back in?

320(11) may be considered.

Didn't he apply for a child settlement visa before initially entering the UK?

Nope he was 14 when he came here and his mum told him that she had done everything that was needed. Turns out she did nothing.

[vinny]

When and how did he enter the UK?