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Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7600
Experience:  BA (Hons), PgDip, Practising Solicitor
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my partner is an overstayer and a solicitor advised him that

Customer Question

my partner is an overstayer and a solicitor advised him that he can apply for visa to exercise right of access to our son. I moved back to my parents' house because we were struggling financially after the baby was born but we are still in a relationship. The solicitor asked him to get a copy of my visa so that he can know my status and then assess whether he should apply for right of access or apply for discretionary leave. What is your advice on this? I have my reservations about the whole process since I did not attend the meeting with the solicitor, furthermore, I have read the home office guidelines on applying for right of access and he doesnt meet the criteria. Secondly, I am my parents' dependant and my visa states that. Will this interfere in any way with my visa as a dependant or my parents since we have not informed home office that I have a child yet?
Submitted: 5 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 5 years ago.

Thanks for your question.

What visa are you parents on?

When does your visa expire and are you eligible to apply to extend it or to apply for indefinite leave to remain?

What nationality are you?

Do you intend to marry your partner?

Kind regards,

Customer: replied 5 years ago.
My mum has sent an application for ILR under the 10 year rule. My siblings and I came here as her dependant s when she was a student and renewed our visas last year as her post study work visa dependants. we are on residence permits and will need to apply for further leave to remain in february 2013 when our visas expire. My partner and I are engaged and hope to get married, however, this would mean I no longer fit the criteria of being a dependant as I will have formed an independent family unit. We planned to wait until I reach my 10 years and apply for ILR then we could get married then. I have been reading the decision on Chikwamba and Bekeou Betts on in country applications in the event that Article 8 might be breached by requiring the other party to leave the country and applyfor entry clearance. Is this applicable to us? I am Kenyan.
Expert:  Thomas replied 5 years ago.

What sort of documentary evidence do you have that he has been actively involved in the child's upbringing?

Customer: replied 5 years ago.
none. Will this process interfere with my visa renewal or my siblings as my mother's dependants next year? I would not want anything that would jeopardise their applications including mine and my son's.
Expert:  Thomas replied 5 years ago.

Very quick meeting I will be able to answer for you in ten minutes..

Expert:  Thomas replied 5 years ago.


Thanks for your patience.

As an overstayer he does not meet all the eligibility criteria require in order to obtain leave as a person exercising a right of access to a child in the UK so whether he applies under this category or as a formal discretionary application he would inevitably be asking the UKBA to exercise discretion in either case.

His chances are not great if he is an overstayer, I have to be honest. If you can show in your evidence that he has been involved in the child’s upbringing and is minded to continue this then his case is improved but I would still fully expect the UKBA to reject initially and then force you to appeal. You would have to get a solicitor/barrister to act on his behalf on appeal and the costs of this would be upwards of £1500+vat.

I cannot see how this would prejudice your position if you remain unmarried to him. Your leave is derived from your dependency from your parents. I would seek to maintain that dependency by remaining at your parents house. Provided the UKBA do not hold you to be an independent family unit then, as you say, your immigration status would remain unaffected. I would avoid volunteering or impressing on them that your relationship with your partner is one that will lead to marriage in this regard.

The ideal scenario from your perspective would be if you were not in a relationship with him in the sense of a loving relationship but that you are willing to accept that as the father of the child he should be involved in the child’s upbringing, in these circumstances I would be certain that your immigration status would be maintained and not prejudiced by the application made by your partner.

Provided you do not marry I would still be reasonably confident that your status would not be prejudiced by his applciaiton.

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Kind regards,


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