Overstaying?

[whats_in_a_name]

Hello,

Forgive the loooooong-winded post but I need all factors considered...

Firstly,

I applied for a student visa (in country) before my Working Holiday Visa expired, however this was refused. I then appealed on the advice of the immigration solicitors (also visa agents - the swines) who had handled the innitial application. I suspect they processed my application in the hope that I would use their appeal service (£1000 approx) when it went pear-shaped because they knew that it was not possible to apply for leave to remain by switching from WH to Student status and were therefore expecting the refusal. Enough of that.

I ended up appealing to the AIT without legal representation; the immigration judge dismissed the appeal on 18 December on the basis of no right of appeal and because I was not allowed to switch in the first place. He said that I was still in the country legally until the dismissal was promulgated and I received paperwork from the AIT, after which I will have 10 days to appeal or leave the country. These papers have not arrived as yet.

Am I correct to assume that I will not be classed as an overstayer on the basis that I had applications and appeals going through since before my WH Visa expired in October? The judge said it was okay but I obviously have no way of proving this to an IO (I don't know what the awaited paperwork is going to say so that might clarify).

In general, does overstaying start the day one's visa expires or is there an amount of leaway in case you need time to book a flight , etc

I plan to leave at the end of January (or for that matter no more than 10 days after I get the stuff from the AIT).

Secondly,

When I arrive back home I plan to apply promptly for a fiancee/proposed civil partnership visa to return and form a civil partnership with my boyfriend, a UK citizen, whom I have known for two weeks shy of 1 year. We have lived apart for most of this time, including the past six months.

In the light of the abovementioned visa refusal and subsquent appeal and its dismissal, will it be difficult for me to get a fiancee visa, assuming I have all the paperwork and evidence required when I apply? I need to get back to the UK by mid-March as we have booked a holiday in Switzerland.

Thank you in advance, and forgive me if I've missed answers to these questions elsewhere in the forum.

*stu*

[Jeff Albright]

I applied for a student visa (in country) before my Working Holiday Visa expired, however this was refused. I then appealed on the advice of the immigration solicitors (also visa agents - the swines) who had handled the innitial application. I suspect they processed my application in the hope that I would use their appeal service (£1000 approx) when it went pear-shaped because they knew that it was not possible to apply for leave to remain by switching from WH to Student status and were therefore expecting the refusal. Enough of that.

Sorry to hear about that - there are too many crooks over here and all newcomers are really naive thinking everything is up to scratch in this country... had been myself in the similar situation.

I ended up appealing to the AIT without legal representation; the immigration judge dismissed the appeal on 18 December on the basis of no right of appeal and because I was not allowed to switch in the first place.

If there was no right of appeal, how did your case turn up before the Tribunal?

He said that I was still in the country legally until the dismissal was promulgated and I received paperwork from the AIT, after which I will have 10 days to appeal or leave the country. These papers have not arrived as yet.

Did the AIT dismiss your appeal at the hearing? This does not happen very often. Have you actually been told that your appeal was dismissed?
The determination should have been sent to you within 10 working days, however, sometimes it may take months before you get it. Bearing in mind Christmas and New Year, I would wait 1-2 more weeks.

Am I correct to assume that I will not be classed as an overstayer on the basis that I had applications and appeals going through since before my WH Visa expired in October?

If you followed the correct procedure in a timely fashion - you should be ok. If your appeal is unsuccessful you will be able to apply for reconsideration to a Senior Immigration Judge within 10 days although it only makes sense if you can clearly see that something has not been considered properly or overlooked, i.e. there has been a material error of law. You must understand the Immigration Law and Tribunal Rules very well in order to pinpoint any error of law. If it is not the case, it is pointless to pursue the matter - your application for reconsideration will be turned down. However, if that happens there is still an opportunity to apply to the High Court or Court of Appeal for review. If the High Court or Court of Appeal reject your application - there will be no further right of appeal and you will have to leave the country.

The judge said it was okay but I obviously have no way of proving this to an IO (I don't know what the awaited paperwork is going to say so that might clarify).

What IO?

In general, does overstaying start the day one's visa expires or is there an amount of leaway in case you need time to book a flight , etc

I would not advise you to rush immediately and leave the country. Get your determination, study it carefully and if there is nothing more to argue, just plan your trip, get yourself ready and leave. Call the IND to tell them that you are leaving.

In the light of the abovementioned visa refusal and subsquent appeal and its dismissal, will it be difficult for me to get a fiancee visa, assuming I have all the paperwork and evidence required when I apply? I need to get back to the UK by mid-March as we have booked a holiday in Switzerland.

I am not sure about fiancee visa but for the spouse one, your relationship should have a lot more substance than just knowing each other and leaving apart. Ideally, if you have been living together for 2 years that would be good enough to show that you intend to live that relationship. Perhaps the criteria for fiancee visa are not that strict. Find out by going to UK Visas website about the requirements. Sometimes Embassies tend to be slow and if they refer for a decision in the UK it may take a month or two before you get a decision.

[whats_in_a_name]

Thank you Jeff, for your time and the carefully considered advice.

To answer a few of your questions -

The judge said that the case had ended up at the Tribunal due to an oversight by the AIT themselves, and that they often only realise these mistakes once a case reaches the hearing itself. I find this appalling, but I was not going to pay a Grand for the privelage of having a rogue solicitor sit next to me when finding this out (don't mind if I rant but I've wasted so much time, money and effort over the past six months!).

The judge did tell me at the hearing that the appeal would be dismissed; I did fact receive notice of this today through the post (giving me five days to lodge an appeal, no ten as the judge had mentioned).

The IO I was referring to - I know it's rare for passports to be checked on exit but if this does happen when I leave I am concerned that an IO could serve an IS151A as a result of an apparent overstay. I shall have all relevant docs with me and contact the IND as recommended to avoid this.

Regarding the proposed partnership visa, I have done my homework - it is sufficient for proposed partners to have met previously. My partner and myself have in fact lived together for a period of six months (this was however during last year, from February to August - we have a lease agreement to support). Since August I have lived with the family friend who is (still) acting as my sponsor under the Student Visa rules & regs. I decided to make this move because my studies, accommodation and transport were being funded by my sponsor and I would not have afforded the course etc otherwise. My partner and I do however speak daily and see each other at weekends - so we will be able to prove the substance of the relationship.

What I am concerned about is that the application is not going to seem credible in the light of a previous refusal, and given the timing since I need to apply expediently when I arrive home. I am sure that previous refusals are taken into account even when applying for a different visa?

Thanks again for the advice.

Stuart