Student visa curtailed, really need advice

[a8878219]

Hi all, I really need your advice.

Long story short: I was reported by my college to UKBA Nov 2011 for low attendance while here on a student visa. I was re-admitted to college a couple of days later but the college neglected to tell UKBA I had been re-admitted. My visa was curtailed around May 2012 (although I didn't discover this until July 2012 as mail was going to the wrong address) and I was granted temporary admission to remain. I wrote to UKBA immediately to explain I was still attending the college. UKBA confirmed visa had been curtailed, but gave me time to submit a fresh student visa application.

That's the background done! Now my questions:

1. Am I an "overstayer" even though I have not been given a date to leave the UK (my temporary admission is still valid)?

2. I am planning to return to my home country with my fiance (who is a British citizen) to marry, then apply for a spouse visa. I know I have the curtailment to explain, but do people think that plan makes sense?

Thank you for reading

[Mr Rusty]

1. Am I an "overstayer" even though I have not been given a date to leave the UK (my temporary admission is still valid)?

Read carefully all the documents with which you have been served. The phrase "temporary admission" suggests that you have been notified as an overstayer - the power to grant temporary admission as an alternative to detention flows from the power to set removal directions following service of a notice of illegal entry or overstay. Thus if you weren't notified as an overstayer, there is no formal grant of temporary admission. Are you also required to report to a reporting centre?

2. I am planning to return to my home country with my fiance (who is a British citizen) to marry, then apply for a spouse visa. I know I have the curtailment to explain, but do people think that plan makes sense?

Even if you have been formally treated as an overstayer, this does not automatically disbar you from a spouse visa application. There is a discretionary power to refuse under Para 320(11) on the grounds that someone has "contrived to frustrate the intentions of the Immigration Rules." However, it requires more than a simple immigration offence to trigger this, there have to be "aggravating factors" such as illegal working or failing to comply with removal directions, etc. The info you have given suggests little in the way of "aggravating factors" - non-attendance at college isn't specifically listed but it might depend on the extent of your absences. All in all, whilst you might expect your application to receive the closest scrutiny, there's a good chance it would be treated on its merits.

[a8878219]

Thank you so much Rusty! To follow up:

1. I have reeieved an IS.96 notice. It refers to me as "a person who is liable to be detained". It follows with "I hereby authorise your (further) temporary admission to the UK subject to the following restrictions". These are: no work; fortnightly reporting at a reporting centre; and I must stay at the same address. I assume I've been given this temporary status to give me time to submit a new student visa application

2. My period of college absence was because my mother died and I had to go home for her funeral - I missed a few lessons when I got back as well as I was pretty low.

New Q3. So does the automatic re-entry ban for overstayers (it sounds like I'm an overstayer then...) not apply to spouse visa applications?

Thank you again!

[MPH80]

IMPORTANT NOTE: See my post 2 steps down - the information below is not correct.

MrRusty - my understanding was that the 320(7c) 'allowance' for spouse visas not to be given a ban had been removed as part of the new rules.

So my understanding was that, spouse visa or not, all overstayers departing at their own expense were automatically under a 1 year ban.

(edit: checking the statement of changes - this would look like the case: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary - see paragraphs 105 and 107.)

M.

[a8878219]

Eek! I can't even see 320(7c) on UKBA's immigration rules site, it just goes from 7b straight to 7d!

(edit: thanks for the link, that explains the deletion)

Paragraph A320 says "Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM..."

Does that mean para 320 doesn't apply to my spouse visa application?

Thanks again

[MPH80]

Ok - I understand my mistake now.

http://www.ukba.homeoffice.gov.uk/sitec ... verstayers

This was the announcement I read and I remembered it badly (and the removal of 7c only helped to confound my understanding).

The adjustment was to FURTHER leave to remain - not to entry clearance - so it shouldn't stop you going back to your country of residence and applying from there.

So - A320 is now the override.

I stand corrected - apologies for giving mis-information.

M.

[a8878219]

Thanks M, I appreciate your help

So to sum up:

A. It seems like I am an overstayer despite UKBA not actually branding me one in their correspondence

B. There's no re-entry ban on former overstayers applying to enter UK as a spouse of a British citizen

I think I'll have a job to explain all the background to my application, but will give it a go!

Thanks both, it's so good to have a (free) resource like this

[a8878219]

Well, having ploughed through Appendix FM, I can't believe UKBA would abandon simple paragraph numbering for the crazy E-ECP, S-EC etc...!