Firstly, you can either marry in an Anglican church whereby you will not need to apply for permission to marry to the UK Border Agency (UKBA). If you cannot marry in a church, then you need to apply for a certificate of approval to marry because your partner is an overstayer. There is no Home Office fee for this application. The UKBA is not concerned about whether he is here legally or not, they focus on whether your relationship is genuine. You will need evidence to prove that you have been living together, eg utility bills, phone bills, mortgage details etc. It is also good to provide photographs of the two of you. If permission to marry is granted, he can then apply to remain on the basis of the marriage. However, you would need to show what are the obstacles for him returning to Jamaica to apply for entry clearance. The application to remain on the basis of your marriage will be outside the immigration rules because he is an overstayer. If granted, he would get 3 years discretionary leave to remain (he will be here lawfully and can work and travel etc). You need 6 years of discretionary leave before he would be able to apply for settlement (permanent stay) . If the application is refused, there would not be a right of appeal, unless human rights grounds are also raised. However, the UKBA are tending to issue only refusals to vary leave and not immigration decisions which would give you a right to appeal. You would have to challenge them to issue an immigration decision if this happens. You can also raise human rights grounds under Article 8 of the European Convention on Human Rights. This would be based on the family life you have established in the UK eg. his relationship with you and his child. The private life argument would be the length of time he has been in the UK, and his employment. If his child is a British Citizen then you would have stronger grounds to be argued. If the child is not British then you can still argue Article 8 family life. You mentioned that the child's mother has regular contact, so this is a fact that would be relevant to his human rights application.
To conclude, the only way to remain would be to make an application based on your marriage and raise human rights grounds. However, although he does not want to return to Jamaica to apply for entry clearance, if he did and he satisfies all the requirements of the rules, ( the main ones being intention to leave together, maintenance and accommodation without public funds) he would be given 2 years leave to enter. Before the 2 years is due to expire, he would be able to apply for settlement. Therefore, to remain in the UK and make an application will take him longer to obtain settlement than if he applied for entry clearance. Also, the fact that he overstayed cannot be used against him as a mandatory refusal because he is applying to return in a settled capacity.
I hope this is of help to you.
Discretionary leave is leave outside of the immigrton rules that can be granted to people who suceed in their human rights claim. Once you marry, he will then need to make an application to regularise his stay here on the basis of the marriage and also raising human rights arguments based on his family life with you and his child. It will be up to the UKBA whether they allow him to remain or not. Alternatively, he can return to Jamaica and apply under the rules for entry clearance to come back to the UK on the basis of his marriage.
Hope thats clear.
Hi Yvonne, thanks for that, it certainly clears up a lot of questions we have been asking. Just wanted to get one last piece of advice from yourself.
If we were to marry and then wait for another 4 years for my partner to apply for leave to remain as he will be of been living in the uk for 14 years then. Is it fairly straight forward for this type of application to be accepted, or are there also risks involved??
Apologies for not getting back to you sooner. Regarding your question, if he applies under the long residence rule, you have to provide evidence for each of the 14 years to prove that you have been in the UK. Correspondence such as telephone bills, utility bills, bank account statements, medical records, evdience of employment etc. He must not have been issued with a decision to remove otherwise that will stop the clock for proving the 14 years. If you cannot provide evidence then the application will be refused. The UKBA are very strict when it comes to 14 year applications, so evidence will be crucial to any application.
In your case, once you marry, he will have a basis to make an application to remain as I have said before, raising human rights grounds.
Thank you for your reply we would be able to show proof of his whole time spent in the UK, as he has been living and working here as himself all that time.
We have also been advised that the unmarried partner visa would be something worth considering and he wouldn't have to go back to Jamaica to gain clearance, once we were married we could then apply for a spouse visa in the uk, would you agree that this is also an option we could look into or not??
I am more than happy to pay you further for your advice as you have been the most helpful of anyone I have spoken too so far.
You do not satisfy the requirements of the rules as an unmarried partner because your partner is an overstayer. There are two points that he does not satisfy they are 1. your partner has limited leave to remain in the United Kingdom. 2. he has not remained in breach of the immigration laws. Your partner does not have leave and is in breach because he is an overstayer. Therefore, if you made an application on this basis, it is likely to be refused. If you still wanted to go ahead with this application, you would have to raise human rights arguements along side it. Again, if accepted, he would be granted discretionary leave to remain for 3 years.
You can apply for a Certificate of Approval to marry and from the facts of your case there are no reasons why you should not be granted permission. If granted, you have to register the marriage within 3 months. Once you are married, you can apply to remain on the basis of the marriage and also raise human rights grounds as I have said before. If you do not want to apply for permission to marry, then you can make a human rights application under Article 8 family life. If granted, he will be given 3 years discretionary leave. If refused and if you are issued with an immigration decision there will be a right of appeal. If there is no immigration decision, then you need to make representations for one to be issued. Or wait for a decision to remove to get an appeal right. Since your partner is an overstayer, he would not be deported, he would be removal as an overstayer. However, you do have a strong case to be argued under Article 8 so apply to marry and then make the application to remain as stated.
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