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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 6298
Experience:  BA (Hons), PgDip, Practising Solicitor
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ILR

Resolved Question:

Hi there, Details: On wife’s children’s passports (South African) visa states: Type:VISA TO ACC MOTHER/CYR mother’s name Observations: No recourse to public funds. On wife’s passport (South African): Type: VISA SETTLEMENT/CP (KOL REQ) my name Observations: NO RECOURSE TO PUBLIC FUNDS Number of dependents: 0 History: My wife and I were married April 2000 in South Africa and have been living together since. My wife has two children aged 14 and 17 when first entered the UK in August 2009.I am British born. I have supported my wife and children throughout the marriage. In 2001, the surnames of her children were changed to my surname. In May 2009 I officially adopted her children. Visas on my wife’s passport and the children expire Nov 2011. We also have an eight year old daughter who has a British passport and is not affected by the current situation. All children are at schools/college in the UK now. In a nutshell, the move to England was a necessity for financial reasons and also an attempt to fix a broken marriage. Unfortunately, it did not help and the marriage is beyond repair. My wife has an alcohol problem, is violent and abusive when drunk and is unreliable. I have full support of her children and they always choose to stay with me. My wife has since Aug 2009, left to return to South Africa twice and is now living at an unknown address nearby the family home in the UK. She is also living with another man whom we are told, is gay. She is also working full time for more than four months now. I have finally managed to have the children's adoptions entered into the GRO register so they should now be able to apply for British passports - for this I had to engage a legal firm. We do not see much of her and as she has practically alienated her eldest daughter (19) and has issues with her son (16), most of her attention is foucused on our nine year old daughter. My wife has to apply for her ILR now which requires my signature. I have refused to sign this as I would be declaring that we are living together as man and wife which at the moment is not true. It is not my desire to see her deported even though she probably doesn't deserve to stay her but I have to think of the two youngest children. Her son who is turning seventeen soon tends to stand on his mother side. However, he also does not think I should sign the ILR form if it means I am breaking the law. Whilst she isn't actively supporting the children or sharing the financial burden, I am prepared to confirm that she is if it will mean that she will do so in the future if she sucessfully receives her ILR. Questions: With the above facts in mind, does she have a good chance of getting her ILR based on the fact that her children are here? (if I do not sign the ILR application) Do I inform UKBA of the breakdown in the marriage and that she is no longer living in the family home? With thanks, XXXXX XXXXX
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 2 years ago.
Hi Nick

How old are the children now please?

What did the law firm that spoke to advise you?

Kind regards

Tom
Customer: replied 2 years ago.

 

Hello Tom,

 

Children are:

19F (adopted by me, biological mother is my wife) - 01/07/1992

16M (adopted by me, biological mother is my wife) - 16/9/1994

9F (my wife and I are the biological parents) - 09/08/2002

 

I engaged a law firm to assist me with securing the children's right to stay in the UK independantly of their mother as we were all uncertain of her plans and actions.

At that time, she was still living in the family home. The law firm advised at that point it may well be easier for everyone to go ahead with my wife's ILR and address any marriage/divorce issues afterwards in that in order for the ILR to be granted, a marriage doesn't necessarily have to be a good one but merely subsist.

 

Since then, she has moved out as I have mentioned. The law firm has yet to comment on my current situation.

 

I am also in conflict here as if I am also being penalised regarding my tax credit status in that I ambeing taxed as a parent with a partner where in fact I not. If I change my tax credit status I am confirming that she is no longer my partner (even tough we are still married) and this would go against her ILR.

 

I would like to think that she would be granted ILR as we did move to the UK together and that as she has no qualifications, no home in South Africa, she really doesn't have anywhere to go. I would also like to think that she would be granted ILR for the sake of the children - the two youngest at least.

 

I really need to make a decision on this ASAP.

 

thanks

XXXXX XXXXXg

 

 

 

 

 

Expert:  Thomas replied 2 years ago.
Hi Nick,

Thanks for your question.

If you are sure that the relationship is over and that the marriage is no longer subsisting then you could not, in good conscience, confirm this to the UKBA obviously. This is the simple view.

If you still at a point where the marriage is conceivably recoverable in time then you could say that the marriage is subsisting.

Either way would be difficult for the UKBA to prove that you genuinely knew the marriage to be at an end if you did not send the tax form off effectively confirming it to be at an end. Once you send the form off then it is evidence of your either a present belief that the marriage is no longer subsisting OR of your intention to effectively commit benefit fraud if you then sign the ILR forms.

If you choose not to sign the forms then your wife will not be able to apply for ILR on the basis of your marriage obviously. She would therefore be left with the prospect of applying for discretionary leave to remain on the basis that he children are UK citizens and there permanent lives are here. There is recent case law based on EEA law for similar situations as here. Her argument would be that she and the children would have their right to a family and private life prejudiced were she to be removed from the country.

If it can be shown that she is an intergral part to their lives and that their lives shall remain here after separation then her chances are good if the application is drafted by a solicitor. If it is not drafted by a solicitor then her chances and much decreased because it is an application technically outside the traditions immigration rules.

You need to speak with your previous lawyers about this and perhaps encouraging her to pursue this route. You could offer to pay her legal fees for the application as a compromise.
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Kind regards,


Tom
Customer: replied 2 years ago.

Hello Tom,

Thanks for reply.

 

To clarify the situation regarding tax credits.

My wife returned to South Africa in December 2009 barely four months after we arrived.

I applied in Jan 2010 as a married person for tax credits. I was contacted by the HMRC where I informed them that my wife had returned to South Africa and was told to re-submit my application as a single parent.

She returned in March then left for SA again a month later.

She then returned to the UK again in June 2010 and as far as I know, has been in the UK since.

I informed the HMRC that she had returned (in June) and had my TC status changed again (from applying as a married person, re-submitting as single parent and now back to a married person or, living with a partner). I may have mentioned to the HMRC telephonically that the marriage had problems and she had left for SA but then many marraiges have problems resulting in temporary breakups.

 

As a result of this, I have incurred a lesser TC figure which effectively means I have to repay money.

 

My wife can state that she had good grounds to return to SA in 2009 and 2010 as her father was sick and passed away in 2010 after she returned to the UK; she was unable to attend the funeral simply due to financial limitations.

 

I do not know whether she is officially paying rent where she lives now or is merely "working" for her rent by cleaning, washing etc for the people that live there.

She is working full time as a care worker at a home for disabled. Her mail is still received here and as she is still listed here on the voters roll.

 

Neither she nor I can afford any more legal expenses but I also do not want to put myself on the wrong side of the law. Having said that, the fact that there is a good chance she would be allowed to remain based on family rights etc does remove some of the weight on my consciance should I sign the ILR application as the end result would hopefully be the same.

 

I suppose everything has to be verbal as any signed agreements between my wife and I would be evidence to contradict the application.

 

So, by changing my status with the HMRC to single parent but informing the UKBA that we are living together would be fraud, what would it amount to by not changing the status with HMRC and informing the UKBA that we are living as man and wife even though I have not informed them that she has temporarily moved out? (I have read on the UKgov sites that I am obliged to inform the UKBA of any chnages in the marriage).

 

Unfortunately, the lawyer I have dealing with is on holiday until end of August and I don't want his partners to take up the case.

 

In fact I will have to make a decsion today.

 

With thanks,

XXXXX XXXXXg

 

 

 

 

 

Expert:  Thomas replied 2 years ago.
Hi Nick

If your HMRC status remain as married and you signed the ILR forms stating that your relationship was still subsisting when she had in fact moved out then there would only be consequences if the UKBA found out.

Presumably she has kept her occupation of her current premises very informal and has not told the UKBA that she is living there. It would therefore be difficult for them to find out. Many persons in your position have done this before.

If they did find out then they could revoke your wife's ILR and it would also be a criminal offence for which you could conceivably be charged. The sentence if potentially up to two years.

Having said that they only time criminal proceedings have arisen in my experience is in the case of a sham marriage where no subsisting relationship has EVER existed. I have not had experience of a "rocky" marriage having been supported by one party and then criminal proceedings occurring upon that person therafter.

I'm afraid I can't put it plainer than that.

Trust this clarifies, if so please click accept.

Kind regards,

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