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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 6037
Experience:  BA (Hons), PgDip, Practising Solicitor
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My friend dont know what to do is there any help?

Customer Question

My friend don't know what to do can any1 help? He has been living in UK illegally for almost 10years.He's wife came 6 Years ago on a student visa and already achieved a master degree. They both had 2 children age 2yrs and 6yrs and his wife is due for another baby next month which is going to be CS. He made FLRO Application January 2013 and the application refused last mont june 2013 and no right to appeal. Wife due for a birthday next month and wife on post study leave/visa to remain expires January 2014. What is the way forward please gud he's confused and can't eat for days now. Thanks.
Submitted: 9 months ago.
Category: UK Immigration Law
Expert:  Thomas replied 9 months ago.
Hi,

Where and when was the youngest of the his children born please?

Tom
Customer: replied 9 months ago.
Both born in this country and sorry the wife is due to give birth through CS next month.
Expert:  Thomas replied 9 months ago.
Okay.

When does the oldest child turn 12 please?

Tom
Customer: replied 9 months ago.
The oldest will be 5yrs in November. And youngest 2yrs next month.
Expert:  Thomas replied 9 months ago.
Hi,

In your original question you said that the oldest was 6 yrs old. Are they in fact only 5 years of age?

Did they instruct a solicitor to act on their behalf in making the application for FLR(O)? If so, what did they say about their options?

Tom
Customer: replied 9 months ago.
Just confirmed from him the oldest will be 5yrs Old in November 2013. He made FLRO application and was refused. And application was submitted with the children birth certificates
Expert:  Thomas replied 9 months ago.
Hi

Thanks for your patience.

I’m afraid that that the first thing to say is that he has no automatic right to apply for a visa which would give him further leave to remain. This is because he is illegally in the UK, this is a general ground to refuse almost all visas.

Previously there was a right for illegal immigrants to apply for indefinite leave to remain once they had been in the UK for 14 years. This has been abolished though, so it’s no longer an option for him.

If his wife has a PSW visa then it may have been possible that he could apply to be a dependent of that but given that it is not long before his wife’s visa expires and they have already refused FLO I do not consider it likely that they would grant him a dependent visa.

Generally, an FLRO application is made on the basis of one of the applicant’s human rights, such as a right to a family and private life because one of them has a right to be in the UK.

In terms of children being born in the UK without leave to remain and staying here for their life so far then leave to remain can be applied for by the parents once the child has established human rights here. This must be where it would be contrary to the child’s human rights to expect them to leave the UK to go to another country and adjust their development accordingly. Once a child has spent 7 years in the UK from birth the case for this increases dramatically.

In the circumstances, the best thing to do would seem to be to wait to see if they wife can switch in to Tier 2 general by finding employment with a licensed sponsor employer for tier 2 purposes:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/general/

If she gets this then he can attempt to switch to being a dependent of this visa, but because he is illegal he can expect another fight on his hands with an uncertain outcome.

If she cannot switch to this category or any other category then their options are either to leave the UK, or to attempt to stick it out until the oldest child is 7 and then instruct a solicitor to attempt to make an application based on her human rights.

I am sorry that I could not have better news, but I’m afraid that he is illegally in the UK which limits his options massively as I’m sure both you and he now appreciate,.


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Kind regards,


Tom

Customer: replied 9 months ago.

Thanks so much for the reply but there is one question I want to ask what can he do pending the time his wife switch should incase she find someone to sponsor her. Can his Lawyer send a latter to challenge their decision base on the fact that he's just asking to be attached to his wife's post-study visa? And will the docements from the hospital stating his wife due to give birth by CS will that help and if not how long can he stay before they will start chasing him at their home address or do they need to change house ? Thanks

Expert:  Thomas replied 9 months ago.
Hi,

There is not really much he can do in the mean time. If there is no right of appeal then the only way he could have the decision challeged is to ask for judicial review.

This is where a Judge looks over the decision, but it's expensive and can only be asked for where there is an error in law. I do not think there is an error in law here.

A simple letter is not sufficient. The only way that he can apply for another visa category is by submitting an application, but I cannot see that there is a category that he is eligible for.

Whilst his wife is in hospital he is not likely to be deported, but after that removal directions are a possibility but where is wife still has leave to remain and is observing the terms of her visa he would be reasonably well placed to defend them for the time being.

Please remember to rate my asnwer.

Kind regards,

Tom
Customer: replied 9 months ago.

what kind of application can he make at this stage appart from FLRO

Expert:  Thomas replied 9 months ago.
Hi,

There is no application that he could make that he is automatically eligible for because of the overstay.

For example, he could submit an application to be a dependent of his wife's PSW but because of the overstay and the short length of time she has left it is not likely to be accepted.

There really is not a lot he can do at the moment because of his illegal status. He has to wait to see if his wife can get another visa really.

Please rate my answer now, you will agreed that I have answered your question.

Kind regards,


Tom

Thomas, Solicitor
Satisfied Customers: 6037
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and other UK Immigration Law Specialists are ready to help you
Customer: replied 9 months ago.

He was asked to contact the enforcement team who will apply for his document date 8th July but hasn't done so. Are they going to be looking for him ? Also the wife is due for a baby in September please what is the best option you can recommend. His Lawyer planning to send a letter on pre-action protocol based on his FLRO. will this help ?

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