British citizen starting relationship with overstayer

[perplexed]

I am a newbie here, seeking advice. Apologies if this thread is posted in the wrong section.

My circumstances are that I met a Chinese citizen in March 2012, who works in the UK, and struck up a friendship. Over a period of time, this friendship blossomed and we became more like boyfriend / girlfriend. Gradually, as we became close and wanted to have no secrets from each other (my failed past marriage, etc), she confessed that she has overstayed, her visa having expired in January 2012 (not sure which visa type at this stage) . This was a like a body-blow, but I still love her, and I believe her when she says she loves me too. Marriage was even discussed, prompting her tears and her confession of her status.
So now I am in fear that she will be deported, the thought of which is unbearable.
What are our options, if we want to get married? How do we go about normalising her status, so that we don't live in fear of her deportation?
She has her passport with her. Can we get married, if she is technically living here illegally? How do we do this? Registry office wedding? If so, would her becoming my wife improve her chances of being granted permission to remain in the uk? What if - and we do not have plans to do so - she were to fall pregnant with my child? We are planning for her to move in with me at my house shortly, but the fear of her deportation is a huge cloud hanging over us.
Any advice given would be greatly appreciated.

[MPH80]

Ok - you're doing the right thing and working through the options - I'm going to answer the first set of questions for you.

Can we get married, if she is technically living here illegally?

Yes - absolutely.

How do we do this? Registry office wedding?

However you want!

If so, would her becoming my wife improve her chances of being granted permission to remain in the uk?

I'll come back to this in a second.

What if - and we do not have plans to do so - she were to fall pregnant with my child?

Can I please stress that you DO NOT DO THIS without regularising her stay first. It would improve her chances to remain - but the stress of this type of application are simply not worth it and you are involving other people - the children - who do not have any say in it. You are relying on discretionary leave in this circumstance.

So - now on to the general advice.

The first thing to keep in mind is that it's unlikely she'll be deported. First she has to be found and if she hasn't been served with a notice - she has to come to UKBA's attention.

She and you have four basic options to regularise her stay - almost all involve her returning to China for a period.

1) You get married, she returns, you apply for a spouse visa (her overstay - providing she doesn't have other aggravating factors - won't count against her). Check you qualify financially here: http://www.ukba.homeoffice.gov.uk/visas ... financial/

2) She returns, you get a fiancee visa (same as above), she comes back, you get married within 6 months and convert it to a spouse visa - same financial rules.

3) You find an alternative category for her to apply in - e.g. a sponsored work visa or a student visa. She will have to return to China to do this - her overstay may count against her in these categories

4) You make a chance attempt to apply for her to remain from the UK - probably post marriage under a discretionary application - probably using article 8. But it's unlikely to succeed. You would be looking at months of wait for a response, then months of wait for an appeal - all of which would probably ultimately fail. If you think the pressure of deportation is bad now ...

Oh - there is option 5 - you both return to China.

There isn't a 'girlfriend' visa in the UK - so there's no option there - and the one relationship visa which doesn't involve marriage ('unmarried partner') requires you to have lived together for 2 years.

There's one final option post marriage - the EU route. This involved moving to another EU country for a period of time and exercising your treaty rights (working or studying). This would allow you to apply for a family permit for her. Once she has this and has joined you in the country of choice - you could return with her to the UK and settle back down again. The benefit of this route is that a) it's free - ignoring the cost of moving twice and b) it doesn't have the financial requirements.

M.

[perplexed]

Ok - you're doing the right thing and working through the options - I'm going to answer the first set of questions for you.

What if - and we do not have plans to do so - she were to fall pregnant with my child?

Can I please stress that you DO NOT DO THIS without regularising her stay first. It would improve her chances to remain - but the stress of this type of application are simply not worth it and you are involving other people - the children - who do not have any say in it. You are relying on discretionary leave in this circumstance.

So - now on to the general advice.

The first thing to keep in mind is that it's unlikely she'll be deported. First she has to be found and if she hasn't been served with a notice - she has to come to UKBA's attention.

She and you have four basic options to regularise her stay - almost all involve her returning to China for a period.

1) You get married, she returns, you apply for a spouse visa (her overstay - providing she doesn't have other aggravating factors - won't count against her). Check you qualify financially here: http://www.ukba.homeoffice.gov.uk/visas ... financial/

Option 1) appears to be the best route for us, but I am unclear from the UKBA site whether it is my income that has to be £18600 or greater.

Please be assured, I don't intend to get the lady pregnant before we sort out whether she can stay. I could not bear to have a child, then have her mother take the infant back to China in order to facilitate a new application. It would be difficult enough to deal with missing her, without adding-in pining to see our child!

Thanks for getting back to me, it is appreciated

[MPH80]

It is your income that is taken into account.

M.

[perplexed]

It is your income that is taken into account.

M.

Thanks for clarifying that.
Well, at least that's one good thing. My income is about 33% above the threshold, so even if they raise the threshold a bit, we should be ok on that score

[dave_r_scott]

Hi MPH80

I'm interested in your comment about previous overstaying not counting against the application?

My wife has been waiting >3years for leave to remain, so now we're considering her returning to South Africa + making a new spouse visa application (financially this wasn't an option before, but is now).

We meet all other requirements + have 2 British kids--my fear is whether her previous 'bad record' would hinder or delay the new application?

[MPH80]

I've answered in your other thread.

[dave_r_scott]

can I just echo the comments above about regularizing the stay before having children--we're in exactly that situation now, and it's very stressful indeed

[perplexed]

Further to my initial post, my girlfriend and I were at a gathering of her friends at the weekend, with other couples who are / have been in a similar situation. One of her friends was asserting that if my girlfriend and I go to China, and get married there, that my (then) wife would have an automatic right to settle here. My brain was saying 'it can't be that simple, surely?', but the lady was a little drunk. so with the lack of common language and the effects of the alcohol, I am not sure I interpreted her correctly. She also alluded to the human rights of a spouse, to live with her husband. All of this flies in the face of the very good advice of MPH80.
I do not want to have any false hope that the process could be that easy.

One thing that I wondered, though. If my girlfriend has not come to the attention of the UKBA, could we just get married and she live quietly 'under the radar', so to speak. Or would the marriage itself bring her to the attention of the UKBA? If we can live together for 2 years or more 'undetected', would that not improve our chances of her gaining leave to remain?

[MPH80]

It's not I'm afraid.

You do have a right to a family life under article 8 - which is what she's referring to.

HOWEVER, the article doesn't say where that family life has to take place. So UKBA takes the stance that, in general, it can take place anywhere unless there are damn good reasons why not. Those reasons might include children who are of school age and settled, or medical reasons, or a dangerous 'alternative' country. So the qualification of the visa for that family life to occur in the UK is not automatic.

As a result, you do have to qualify through the requirements as we've already outlined.

It's worth noting that the spouses do get several breaks which others on the tier systems don't - for example:

1) Any ban is automatically overlooked (providing you don't fall foul of 320(11))
2) A tourist schengen visa becomes free

M.

[MPH80]

One thing that I wondered, though. If my girlfriend has not come to the attention of the UKBA, could we just get married and she live quietly 'under the radar', so to speak. Or would the marriage itself bring her to the attention of the UKBA? If we can live together for 2 years or more 'undetected', would that not improve our chances of her gaining leave to remain?

Just noticed this.

Well - yes - it's possible that the marriage might bring her to UKBA's attention. It is a possibility.

However, as for living under the radar ... think of this:

No visa = no ability to work legally
No visa = no access, without charge, to the NHS
No visa = no ability to travel
No visa = constant worry

In terms of living together two years - having a subsisting relationship would help - but it doesn't stop it being that if you apply for her here in the UK, she would be applying for discretionary leave. It is far far harder to achieve than a spouse visa.

We've already outlined the easiest process - marry/return to china (in either order) - apply for spouse visa. You meet the financial qualifications.

M.