change to spouse visa or wait?

[dave_r_scott]

Hi all, hope someone can offer advice

my wife is South African, I am British by birth. We have been together 6 years, married for nearly 2, + have 2 British kids (ages 4 +2)

we've been waiting over 3 years for my wife's leave to remain to be granted--and she's getting more and more depressed about it (Dispatches didn't help!)

problem is she was originally an overstayer on her student visa, I assume that's why it's now taking so long.

is it now quicker for her to return to South Africa + to apply for a spouse visa? Am paranoid she'll just get stuck in limbo again

[Lucapooka]

Her visa application will take 12 weeks and perhaps even longer (there is nothing to suggest it will be emitted sooner as her extensive irregular overstay in the UK will require a complete investigation - she will have to wait for that). It's not possible to say if that is quicker than your current application, as your current application is outside the norms of the immigration rules.

[dave_r_scott]

Hi Lucapooka, thanks for your reply

I guess that's the point--her new application would be within immigration rules surely (applying from outside the UK etc)--certainly her current one isn't, I agree with that

I'm just not convinced any sort of investigation or review IS going on at the moment anyway, and it's just buried a store room somewhere

anyone else had any experience along these lines?

[Lucapooka]

Regardless of what is happening currently, anyone who has an adverse immigration history will experience a delay in their settlement application. The case, which begins with the application at a visa post outside the UK, will be sent to the UK for further enquiries on the activity and circumstances of the applicant's previous presence in the UK. Even for someone who otherwise meets the requirements of the rules, there is a delay while these enquires are made.

[dave_r_scott]

do the circumstances of the 'overstaying' make a difference? she'd applied for LTR years before we met--2002 in fact--and never heard any response, nor received her passport back.

It was only when we went through citizens' advice that HMBA finally responded, saying she was an overstayer. As far as we were concerned, her application was still being processed

any thoughts on this subject would be gratefully received!

[MPH80]

I saw the question in the other thread.

An overstay by itself will not result in a rejection of a spouse visa application unless there are other aggravating circumstances (google "ukba 320(11)" and read that rule)

But the point being that while it won't be a reason to decline the spouse visa - it doesn't mean it won't take a while to get.

[dave_r_scott]

Hi MPH80

thanks for the info. any guide on typical wait times? months? years?!

[MPH80]

Luca's already provided some guidelines up thread.

[dave_r_scott]

thanks MPH80. Any thoughts on whether a judicial review on my wife's existing application would be a good idea? I know next to nothing about the process, other than that it seems a way of at least forcing a review of our application.

[MPH80]

None at all.

You'll need good legal help to do that.

[dave_r_scott]

thanks MPH80, we'll consider that

if the passport is expired while the application is being considered, will that delay things? My wife's passport was still with the UKBA and it expired 2008, whereas we applied for LTR in 2009

(this is slightly off-topic, so apologies if I should be posting in another thread)

[alf32]

My husband was an overstayed on a visitors visa, we applied for FLRM but got refused as a unmarked couple and then re applied when we got married as a married couple. Both applications got refused on the grounds that he overstayed. This has cost us a great deal of money, we have been now forced for him to return to his country to apply for a spouse visa, since finding out this news I feel we are being torn apart, we have been fletcher for 6 years and now I'm being forced to live without my husband for I don't know how long! You have children which surely works in your Cavour, unfortunately we don't yet so hindered our case, as It was stated I the refusal we did not have children together. I'm hoping my husbands visa application will not take long, but according to info I have read it can take anything upto 6 months from his country, especially as he overstayed. I haven't stopped crying since this all happend, it's a terrible situation but hopefully for the best. We were advised before we started this whole FLRM process that my husband should return home and apply and now wish he would have done it along time ago. As it has been a painful wait of over 3 years for this terrible out outcome. I agree with you about the Dispatches programme, I feel that we were one of those cases that had to be thrown out quickly as we recieved this outcome at the end of march when they said they should have worked through the back log from Sheffield.
I wish your wife the best of luck, and hope everything works out soon

[dave_r_scott]

Hi alf32, sounds awful + I can only sympathize

although it was expensive, we ended up changing lawyers + submitting a new application from within the UK, this time it was approved within 6 months or so (limited leave to remain for 30 months) which is a massive load off our minds

the UKBA letter with the approval made pretty clear that the only reason this application was approved was because we had children + that it was unreasonable to expect them to leave the UK. Had we 'only' been married it would have been rejected on the grounds of my wife overstaying longer than 28 days (incorrect, but our word against theirs).

PS had we not submitted the new application, I suspect we would have been waiting indefinitely--seems our 1st application wasn't even under active consideration, despite what our 1st lawyer had said.

[alf32]

That's great news, very happy for you. I think it's disgusting how they judge people on weather they have children or not, I find it discriminatory in a way as not everyone wants children or can even have children.
My husband has been in his country now for 3 months and our spouse application has been in for a month so now we just play the waiting game. It's very hard to live apart from eachother, I have visited him but cannot do his all the time as its very costly, I pray to god that the case officer will see the genuiness of our case and grant him his visa.
I wish you much happiness together and hope that the next appliaction will be straight forward for you both.