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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 6290
Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi I am a South African in my mid 20s and have overstayed

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Hi – I am a South African in my mid 20’s and have overstayed my working holiday visa and would like to know what my chances are on obtaining indefinite leave to remain based on my individual case? I entered the UK legally on a working holiday visa right at the start of 2004 and round about the time of my visa expiring two years later I made the choice, due to personal circumstances, to overstay my visa. During that year of 2006 I started studying towards a paralegal qualification and passed in November of the same year, however in order to have been able to continued studying with the awarding body I had to take out a personal loan to fund my studies (since I was foreign national I had to fund my studies) and in the spring of 2008 I qualified with a research based law degree (LLB 2.2). Now I had every intention of returning home for good as soon as my loan was paid off which was in March of this year however, in June of last year I started seeing a woman whom with I’d been acquainted with since 2007 and now want to settle and build a life with her here in the UK. As you can see that is almost a year we’ve been involved, but I must stress that I have no intention of marrying her in order to stay I would like to be living here legally before I do that. During my whole stay since 2004 until the present I have been making my legally required National Insurance contributions and have paid tax all the way through. I have never claimed benefits off the government and have an excellent command of the English language. Due to the nature of my work (hospitality in Scotland as a deputy bar & restaurant manager) I am also a fully qualified first aider and I hold a Personal Licence after passing a police background check. I have held this licence awarded by the local council since mid 2009 which qualifies my by law in Scotland to permit the sale of alcohol legally in accordance with the Licensing (Scotland) Act of 2005. As you can see I have made the wrong decision a few years ago, but I would also like to point out that in spite of my bad judgement, I have contributed to the local economy, I have maintained myself this whole time without help from the government and I have made lifelong friends whom which I would be terribly sad to leave behind. What are my chances?
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 3 years ago.

 

Hi,

 

Thanks for your Question.

 

Whilst I appreciate the level of detail you have gone in to and it's plain to see that you have made a notable contribution to society in this country I'm afraid that it will get little traction with the UKBA if you attempt in some way to apply for most types of visas. An overstay of this type is grounds for refusal for most types of visas.

 

If a person has been in the UK with a mixture of legal leave to remain and having no legal leave to remain then they must complete 14 years of continuous residence in the UK in order to make an application based on residency. I assume you do not have this and it would be imprudent to attempt to stay and attain this for any considerable length of time because it may be that the rules are revised by the time you come to apply.


If you leave the country and make another application for a Tier 2 visa then it will be rejected on the basis of the overstay.


If you end up being deported by the UKBA at their cost then you will receive a ban.

 

Your best possible chance of obtaining leave to remain in this country is on the basis of your relationship with the woman you are seeing. Overstays are not permitted to form a general reason for refusal in cases based on relationships under Immigration Rules 320.

 

In order for you to be eligible to apply for an unmarried parent's visa you would have had to have been cohabiting (ie. actually physically living together) for a period of two years. If you attain this period of time with your partner and are able to demonstrate this to the UKBA by documentary evidence (eg. Correspondence, shared tenancy agreements, shared utility bills etc) then you may be able to apply for settlement provided she is a UK citizen or has ILR and you meet the following criteria:-

  • you have suitable accommodation which is owned or lived in only by you and your household, and where you and your dependants can live without any help from public funds
  • you can support yourselves and any dependants without any help from public funds
  • you intend to live together permanently
  • your partner is not under 21, and
  • you are not under 21 at the date of arrival in the UK.

The UKBA would require you to return home to make the application from there, however there is nothing to stop you seeing an immigration solicitor and preparing the application prior to your leaving so that you can submit it to the UK embassy in SA straight away. You would have to submit it as soon as you return to limit the effect of the break in cohabitation in any event..

 

In summary your chance of success in apply for a non-relationship based visa in country are zero.


Your chances of applying (out of country) for an unmarried partners visa if you meet the eligibility criteria are decent.

 

I would also keep quiet about you being illegal to your employer. They can be fined up to £10, 000.00 if they employ someone within legal leave to remain.

 

I am very sorry it could not be better news, I hope you are able to see that there is little point in my sugar coating your position for you.

 

If this has been useful please kindly click accept so that I may be rewarded for my time. It will be gratefully received and you will be free to ask follow up questions.

Kind regards,


Tom

Thomas, Solicitor
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Experience: BA (Hons), PgDip, Practising Solicitor
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