Spouse Visa Expired By Accident, What Are The Options?

[shouldbeworking]

Evening All,

I have viewed several threads and still not clear on what the options are, very worried

So, my wife is a US Citizen, she lived in the UK for 5 years while we were married on a ILR, we then moved to the US for ten years, before moving back to the UK. We applied for a spouse visa for our return which was granted....

...unfortunately I had no idea there was an expiration date on the Visa, I had thought it was an ILR. Anyway, we went off on holiday and on returning back to the UK, immigration highlighted that this as huge problem and my wife has been an illegal immigrant for five or so months within the UK.

They still let us back into the UK, I would assume as we have a couple of kids and they realized it was a very stupid mistake. However she only has been granted temporary admission for a period of one week, at which point she has been asked to return to the US, they have held her passport.

Question, what are our options? We have two children, both of which are UK citizens, myself who is a UK citizen (same job for 15 years, income circa £50k), married since 2000, she is a housewife.

I cannot return to live in the US due to there immigration requirements.

As I understand, if she were to return to the US and we were to reapply for her VISA as a spouse this would more than likely be declined due to her illegal stay in the UK and deportation.

Last thing I want is for our family to be broken up. I did read somewhere there is an article 8 I believe, from 1998 which states the right to family life. I am assuming I may need to look into this.

Any help would really be appreciated, whats a nightmare this has been .

[Casa]

As you're already aware, you're in a sticky situation. As far as I can see, you have two options:
1. Your wife returns to the US within the week she has been allowed and submits a new Spouse Settlement visa from there. She shouldn't be refused under 320(7b) of the Immigration Rules due to the overstay.
OR
2. Try submitting a FLR(FP) Partner route application, explaining that the HO are holding her passport. However, this is a lengthy process (up to 12 months wait for a decision), during which time she will be unable to travel outside of the UK. If granted, this would be a 10 year route to settlement (ILR) and there's no guarantee of success.

https://www.gov.uk/government/uploads/s ... _04-17.pdf

[Obie]

The Temporary Admission may create an issue for FLR(FP), but she may be granted leave outside the rules.

It may be wise to read any documents sent to you by the immigration authorities.

[Casa]

Further to Obie's excellent advice, when does the 1 week's entry admission expire?

[shouldbeworking]

Thank you both very much for your replies and advice, so very much appreciated.

I looked over the immigration documents she was sent home was, to be honest there really is not much on them. The HO in London were actually exceptionally nice hence the weeks entry, normally they told me she would just be sent right back, however it was totally obvious we made a mistake.

If the fact she has not stayed here illegally (without our knowledge) on an expired VISA, then the Spouse Settlement VISA sounds like the fast way to go. Gotta admit though, really worried about her going back then for some crazy reason they refuse entry, don't think our family could go through that.

The other option as you mentioned would be the FLR(FP), that way she is here and were not separated which is something I would rather have. Of course, as mentioned, she maybe declined on that, however I cannot see any reason why she would be. This would involve the HO office however returning her passport and cancelling the temporary admission....not sure how likely that would be?

Oh my, no fun, worried like crazy.

[Tamandua]

Based on my own experience, if the FLR(FP) application is unsuccessful the HO will ask your wife to go to a reporting centre where she will be detained. They've already asked her to leave the country and apply for a settlement visa from the US. She won't necessarily be removed as the officer will give her the option to leave voluntarily.

Her application, however, will likely to succeed if the kids are very young and there are 'insurmountable obstacles' that prevent her from returning to the US to apply for a visa.

She will only get her passport back at the airport (unless it's clearly stated they will return her passport) or if the visa is granted outside the rules.

[Obie]

It is highly unlikely if not impossible, that the mother who a British child, who is not a Foreign Criminal, will be detained.

[Tamandua]

If the British kids are all grown up the enforcement team will detain her.

I wouldn't say it's highly unlikely. I met parents of British kids (at the removal centre) who had their FLR(FP) refused -mainly because they applied for a visa without a valid leave and refused to leave the UK by submitting an FLR(FP) application. I made bail because the judge determined I was having a private life in the UK (I didn't apply as a tourist), I have no criminal record, and my husband proved he is a British citizen in the UK even though the HO keep saying he is not.

We are all familiar with Mrs. Irene Clennell case, a mother of UK citizens who got detained and removed to her country of origin.

[Obie]

That woman's case and this case are very different.

Exception 1 was not engaged. Her children were not residing and studying in the UK. Even if they were, at the time of the decision, they were 25 and 27 respectively. I am not an expert in Maths, but I can comfortably say that 25 and 27 is clearly over the age of 18.

Their whole life was in Singapore. She had no dependent children in the Jurisdiction.

[Tamandua]

She doesn't say where her kids are. She did say she lived in the UK for almost 30 years.
Her ILR lapsed because she spent a couple of years abroad.

Anyway, based on what I saw at the detention centre and visitors' room, they detain parents of British kids who apply as tourists or are here on a temporary admission and refuse to apply from outside the UK by submitting an FLR(FP) application.

There are a few cases like this one as well where there are British kids involved: https://www.buzzfeed.com/emilydugan/thi ... .klYv60V1P

Everybody has a story. So, I wouldn't say they can't detain a parent that applied for a visa on a temporary admission. The judge will decide whether that is unlawful or not.

[doctorsholly]

She doesn't say where her kids are. She did say she lived in the UK for almost 30 years.
Her ILR lapsed because she spent a couple of years abroad.

Anyway, based on what I saw at the detention centre and visitors' room, they detain parents of British kids who apply as tourists or are here on a temporary admission and refuse to apply from outside the UK by submitting an FLR(FP) application.

There are a few cases like this one as well where there are British kids involved: https://www.buzzfeed.com/emilydugan/thi ... .klYv60V1P

Everybody has a story. So, I wouldn't say they can't detain a parent that applied for a visa on a temporary admission. The judge will decide whether that is unlawful or not.

Sorry are you saying temporary admission does not allow you to apply for flr fp within the UK ? I understand if one applied on a vititors visa but what I don’t get is why you can’t apply on temporary admission ? Pls explain

[vinny]

E-LTRP.2.2. The applicant must not be in the UK –

(a) on temporary admission or temporary release, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or

[doctorsholly]

E-LTRP.2.2. The applicant must not be in the UK –

(a) on temporary admission or temporary release, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or

Perfectly answers my question; I had the idea that applying on a visitors visa or 6 months visa is not accepted but not temporary admission altogether. For example someone who arrived in the UK on a student visa and then placed on temporary admission after expiration of the student visa, and EX1 applies would be fine to apply. Thanks Vinny.

But what if the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX1 is not applicable, would there still be a valid application ?

[vinny]

For the "unless" exception to be true, both conditions (i) and (ii) must be true. If (ii) is false, then the exception is not engaged.

[Obie]

She doesn't say where her kids are. She did say she lived in the UK for almost 30 years.
Her ILR lapsed because she spent a couple of years abroad.

Anyway, based on what I saw at the detention centre and visitors' room, they detain parents of British kids who apply as tourists or are here on a temporary admission and refuse to apply from outside the UK by submitting an FLR(FP) application.

There are a few cases like this one as well where there are British kids involved: https://www.buzzfeed.com/emilydugan/thi ... .klYv60V1P

Everybody has a story. So, I wouldn't say they can't detain a parent that applied for a visa on a temporary admission. The judge will decide whether that is unlawful or not.

That woman dont have kids, she has adult sons. That is different from our case on this thread.

Since Nick Clegg and David Cameron days, I.have not seen the parents of British child, with whom they have genuine and subsisting parental relationship, being detained in circumstances where they had not served a Prison sentence and where the authorities are aware of the existence of the child.

One or two flaws happens now and again, I must appreciate that, but I work in this area, and I would comfortably state that what you are saying is not a regular or routine exercise.

[michali]

What an awful situation to be in! It was obviously a genuine oversight on the part of this couple. It was so much easier to attain ILR years ago that I can imagine this scenario happening. My husband's spousal visa was given before the issuance of BRP's and it was only the stamp on his passport that indicated an expiry date. Unlike when he received his FLR(M), he did not get a letter explaining how long the visa was for, just the stamp in his passport.

Hopefully this can be resolved and I hope we hear back from the OP. Personally, I would probably choose to apply for a spousal visa even if it means as few weeks apart. I doubt whether the application would be refused in these circumstances once an accompanying letter, explaining what happened and expressing remorse, is attached to the application. The fact they have young children must help.

[Tamandua]

We informally say 'kids' to refer to our adult children as well. Sometimes we just say children.

So, doctorshelly, are your 'kids' minors? Obie says your wife won't get detained. If the application is unsuccessful I think she will be able to lodge an in-country appeal considering she didn't apply as a mere visitor and the decision can be overturned. But it's a long way to ILR.

[Tamandua]

(...) even if it means as few weeks apart. I doubt whether the application would be refused in these circumstances once an accompanying letter, explaining what happened and expressing remorse, is attached to the application. The fact they have young children must help.

A few weeks? Based on the refusal letters I read at the detention centre, the HO claims the parent/spouse will be separated from their family for 'only' 3 months while they are applying for a settlement visa abroad. If they wrote that it's probably true. That's far from a few weeks.

[shouldbeworking]

Good Morning All,

Looks like a flurry of activity here, so thanks all for your input. Trying to understand it all...I of course will keep you updated on the situation as it unfolds. I have contacted an immigration solicitor so fingers crossed we get the ball rolling.

Anyway, as for Children, they are two and four, so young ones. One is a UK citizen from birth, the other is born in the US but holds a UK passport.

It appears, on a Spouse Settlement VISA it can now take five years to get an ILR? If we go the other route, FLR(FP) it will be 10 years. However, if I understand correctly, all the ILR is basically claiming benefits int he UK? If that is the case, I don't care if its 5 or 10 years, never claimed for anything in my life.

Looking at the FLR(FP) route, it appears it can take up to a year for the HO to make there decision. Unless there are any options to expedite this....I read that it can be but maybe in this situation its not an option. I cannot see how they could decline us on the FLR(FP), the only other option is deport her back to the US, however I cannot live in the US as I do not have a suitable sponsor or funds to go back to live there. Still blows my mind that we didn't know about the expiration on her VISA......crazy....however when we applied for her VISA we had a company in the US do all the work so we didn't know all of the steps involved (unlike here original ILR back in 2000 when we got married, we did it ourselves).

Anyway, as above, Ill keep you all updated and hopefully this thread will help others.

[michali]

Is there any further news?

[shouldbeworking]

Well we had a conference with a immigration solicitor yesterday. As what has been mentioned, he basically confirmed all of the above, two options. If she was to go back, she could apply again which could take two to three months....the idea of trying to find a place for her to stay for that long, the fact I cannot leave my work for that long, who would watch our kids, etc...just a logistical nightmare....

So we are going to go the FLR FP route. From the information we were given yesterday, chances are with how busy immigration is in Sheffield, its likely to take a year.

Going down this route is tricky though, as far as I understand, we have to argue why she should stay, in that Home Office takes the view that she should leave and we have to prove otherwise.

Its certainly an eye opener on how the immigration policies have changed throughout the years and the stresses that it inflicts on families. One mistake and everything starts to fall apart, crazy.

[shouldbeworking]

Also, the good news is that the HO in London extended her stay and gave us additional week without us even asking. The solicitor has stated he will send them a letter, let them know what we are doing along with filling the application, that will be enough to stop the immediate deportation which will release some pressure.

[michali]

That is good news! I understand why the FLR(P) route might be challenging but the fact that you have two young children and the failure to extend the visa was due to an honest misunderstanding, I would think your chances of approval are good. I am sure your solicitor will include a supportive letter with your application, along with your own letter expressing remorse and giving reasons why you cannot return to the US.

As you say, the rules have become much stricter and even one small mistake can result in the refusal of a visa application. Some say it is just a tick box process and if you meet the requirements, you get the visa. But it is not as simple as that. One missing document or not in its original form and you can be refused.

Please keep us updated and, once the application is submitted, try not to worry too much! Though that may be impossible!

[shouldbeworking]

So just a quick wee update to the situation.

The HO extended her temporary admission till the end of January which allowed us to work with a solicitor to get the paperwork completed and a nice long cover letter arguing our case. Oddly the HO had us send the paperwork directly to the Airport, rather than Sheffield. They then informed us that she can stay while they go over her FLR FP, first bit of good news!

That was a couple of weeks a go. Nothing has happened since, however I now realize that the law changed on the 15th of January, no longer do we offer temporary admission, rather a bail system. The solicitor is assuming she will be transitioned into the bail system which may delay things regarding her application.

I had half thought that if they requested the paperwork directly at the Airport this might speed things up, however who knows, I guess there is quite a backlog.

Looks like the waiting game......

[shouldbeworking]

Great news!

Approved yesterday, so that wasn't long at all in our case. I am assuming there were a number of factors that helped pushed our case through quickly, not to mention the solicitors cover letter was over nine pages of arguments for our case (not cheap but well worth it).

Anyway, now we can put that behind us and move forward. Good luck to everyone waiting.