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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Good evening , My fiancee had overtstayed her visa by 2 years

Resolved Question:

Good evening ,
My fiancee had overtstayed her visa by 2 years . She went back home to Malawi on her own accord and was stopped as she went through into departures her name was taken and am sure that she is now logged as an overtstayer . The reason for the overstay was primarily due to myself being a Diabetic and having a huge ulcer covering the whole length of my shin area , i had a degree of immobility and the wound has taken the whole 2 years to heal . I can subtantiate on the medical aspect by getting all the records and doctors appointment etc , i was visiting on average twice a week for wound dressing and seeing a specialist dermatology clinic where pictures were taken periodically of the wound . She is now back in Malawi and i would like to know what the probability of her beiing allowed back in and what action we should take .
Best regards
Phil
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 3 years ago.

Hi,

 

 

Thanks for your question.

To enable me to answer your question could you please respond to the following:-

  • 1. Do you intend still to marry
  • 2. When did she leave
  • 3. Did you cohabit and if so for how long and was this up to the date of her departure.

Kind regards.

Tom

Customer: replied 3 years ago.

Yes we do intend to marry .

She left the UK on the 23rd July 2011.

We did co-habit for the dration of her stay , right up to her departure . Ans at no stage did she work .

Expert:  Thomas replied 3 years ago.

Hi,

 

Where do you plan to marry?


Kind regards,


Tom

Customer: replied 3 years ago.
we had planned to marry in the UK
Expert:  Thomas replied 3 years ago.

 

Hi,

 

Thanks for your reply.

 

The overstay in any of itself is not a sufficient reasons for them to refuse her a fiancé or spouse visa because it is contrary to Article 8 Rights to Family and Private Life. Provided there are no other defects in her application then she will be successful but her Article 8 rights must be argued. Sometimes the UKBA try and shoehorn an overstay in to Deception in to a ground for refusal so you would have to disclose the overstay and mitigate it by explaining it.

 

You can either marry outside the UK and then apply directly for a spouses visa. Once application, one application fee.


Alternatively, she can apply for a fiance visa so that she can come here specifically for the purpose of marrying him. Once married she would then have to apply for a spouses visa (settlement). Two applications, two application fees.

 

The eligibility criteria is largely similar for both applications.The advantage is that if your fiance visa is refused then you are not married. If you marry and you spouses visa application is refused initially and then on appeal then you are stuck being married but in different countries.

 

Here is the criteria you would need to fulfill for a fiance visa, as I say the criteria is largely the same for a spouses visa. If you meet this you will almost certainly not be refused a spouses visa:-

 

  • You plan to marry within 6 months of her arriving here (egg. statements from you and others, possibly a booking of a church/venue)
  • You plan to live permanently together here (statements, correspondence)
  • You have met each other before (eg. statements from you both and others, correspondence)
  • You can support each other without the need for public funds (bank statements, evidence of income, evidence of jobs available that your husband could do)
  • You have suitable accommodation which is owned or lived in only by you or your household and where you and your dependents can live without any help from public funds (tenancy agreement, land registry docs if you your own home)
  • That neither of you are younger than 21 years of age. (birth certificates, passports)

The application will have to be supported by evidence proving the above eligibility criteria. I have suggested basic documents above, but the list is not exhaustive. They key to a successful application is producing well-collated documentary evidence for the above criteria.

 

He will also have to pass and english language test showing he has a basic command of spoken and listening English. She can find out approved test providers in his area by contacting the UK embassy nearest to her

 

You will need to apply for fiance/spouses visa using form VAF4 which is available for download from the UKBA website

 

You should consider instructing a immigration solicitor based here in the UK to prepare an application for her (whichever way you decide to do it). You can find local solicitors via:-

 

http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law

It should cost around £1000-1500+ VAT.

If this has been useful please kindly click accept so that I may be rewarded for my time. If you do not click accept your money stays with the site and I do not receive any credit for the time I have taken to answer your question.

 

I will answer your follow up questions you may have.


Kind regards,


Tom

Customer: replied 3 years ago.
Thanks for that information , We have been together since late 2007 , i have documented evidence that i have been to malawi on a few occassions , we have many pictures as well as many emails to and from each other . Also will the fact that she primarily overstayed because of my ulcerated leg , would that be an acceptable fact to put her application in good light ? and that i was unemployed during that period . If she had gone back earlier , due to me being unemployed this would certainly have hampered and most probably resulted in a refusal.
Expert:  Thomas replied 3 years ago.

Hi,


Yes, it would in terms of mitigation and convincing the UKBA that there will be no further deception but the important point is that the overstay is not a sufficient enough reason alone for them to refuse the application in any event..

 

It will also help to convince them that your relationship is genuine and the more documentary evidence provided the likelier you application is to be accepted.


If there are no other defects with her application other than the overstay then she will likely be fine provided the application is well drafted and you enclose appropriate supporting documentation.

 

 

Trust this clarifies, if so please click accept.

Kind regards.


Tom

Thomas, Solicitor
Satisfied Customers: 6594
Experience: BA (Hons), PgDip, Practising Solicitor
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