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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 2089
Experience:  I am a qualified solicitor and an expert in UK law.
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My American girlfriend is currently serving two four year sentences

Customer Question

My American girlfriend is currently serving two four year sentences (concurrently) for theft. Upon her release next year I will travel to the US and she will then become my fiancé.

I understand that ordinarily she would be refused entry into the UK under S320 of the Immigration Rules. But A320 appears to provide an exception for Family Members. Appendix FM states that the applicant's fiancé means "partner".

Is my understanding correct and that she would she be allowed into the UK once we are partners?

We don't plan on settling in the UK, but I would like her to enter as a visitor so that she can meet my family. Would this be possible?

Would she need to apply for a "visa as a visitor for marriage or civil partnership"? And if not, should she nevertheless apply for a visitors visa - would this save us time and hassle upon arriving at the airport?

Finally, would she be allowed to visit other European countries?

Thank you for any advice you can provide.
Submitted: 11 months ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 11 months ago.
Hi thank you for your question. Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE so I can get credited for my time.

The home office states the following in respect of nationals whom usually do not require a visa to enter the uk :

Even if you do not need a visa, you may want to obtain one before you travel as it could save you time when you arrive at the UK border.

And we strongly advise you to apply for a visa before travelling to the UK if:

you have any unspent criminal convictions in any country, including the UK;

you have previously been refused entry, deported or otherwise removed from the UK;

you have breached the terms of any previous entry to the UK (for example, by working illegally or staying here after your permission to stay expired);

you have previously applied for a visa and been refused; or
you have been warned by a UK official that you should obtain a visa before you travel to the UK.

You may not be allowed to enter the UK if you do not have a visa.

In her current situation the fact that she has been serving a custodial sentence I would advice that it would be in her best interest to apply for a visa prior to entry to the UK. If she wishes to travel to the UK without a visa then she would need to disclose the fact that she has just severed a custodial sentence. The immigration officers will then assess the situation and either allow her entry or refuse her entry to the uk, there would therefore be an element of risk with trying to enter the uk without obtaining a visa prior to travel.

She would therefore need to apply for a general visitors visa.

2. In respect marrying in the uk, if she wishes to marry you in the uk and then return to her home country then she would need to apply for a marriage visitors visa please see following link :

http://www.ukba.homeoffice.gov.uk/visas-immigration/visiting/marriage-cp/visa/

If she wishes to apply to the uk to marry and then settle in the uk thereafter then she would need to apply for a fiancé visa, please see the following link :

http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/fiancee-proposed-cp/apply-visa/

3. Paragraph a320 will only be applied to applications for settlement visa ie a fiancé visa or a spouse visa but not if it is a marriage visitors visa.

Even if she does apply for a settlement visa the immigration officer will assess her on suitability grounds, which mean that they will review her criminal past and then make a decision on whether or not to allow her entry to the UK.

4. She would be able to travel to European countries provided a visa is not needed but she would need to disclose her criminal past when questioned as each country will have different assessment criteria for whether to allow her entry or not.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time. If however you feel that the answer does not cover all the points raised in your question please DO NOT rate my answer negatively I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Customer: replied 11 months ago.

I'd just like some clarification.


 


"Paragraph a320 will only be applied to applications for settlement visa ie a fiancé visa or a spouse visa but not if it is a marriage visitors visa."


 


I'm confused by this statement. Would she be allowed to enter with a general visitors visa? You make it sound as though she will only be allowed entry if we intend to settle here. Is that correct?


 


Perhaps I have misunderstood.


 


Can you offer a quick overview of what other European countries criteria are? Even if you only have limited knowledge - what would be the easiest countries to enter, and the hardest? Just a pointer in the right direction would be helpful.

Expert:  UK_Lawyer replied 11 months ago.
Thank you for your reply.

1. Yes, the home office are more likely to overlook any previous criminal convictions if she was wishing to settle in the uk, this is because they would have to consider your human rights in more detail and look at the fact whether refusing her would effect your right to family life. In respect of her applying to visit the uk the home office will again need to assess her previous criminal record and that is why I would suggest that she applies for a visa prior to entry to the UK.

2. I'm respect of Europe countries, I could not advice you on which country would be the best to enter , as the countries you wish to enter are in Europe the criteria would be similar.

I hope this clarifies the matter if so kindly rate my answer positively.

Kind regards
Customer: replied 11 months ago.

Could you please refer me to the UKBA Rules or advice documents that talk about how A320 should be applied?

Expert:  UK_Lawyer replied 11 months ago.
Thank you for your reply.

The paragraph states as follows :

Under paragraph A320 of the Immigration Rules, you must not refuse an applicant under 320(7B) if they are applying for settlement as a family member under Appendix FM but you may consider whether the applicant falls to be refused under the suitability requirements namely S-EC.1.8.:

In, addition, as concessions outside the Rules, you should also not refuse an applicant under 320(7B) if:

the applicant has been accepted by UKBA as a victim of trafficking (see RFL 5.8)
the applicant was in the UK illegally on or after 17 March 2008 and left the UK voluntarily before 1 October 2008 (see RFL 5.7)
In addition you must not refuse an applicant under 320(7B) if:

false documents or false representations were used in a previous visa or leave to enter or remain application, and the applicant was not aware that the documents or representations were false; 
the period specified for automatically refusing applications has expired; or

following their breach of UK immigration laws, UKBA issued a visa or leave to enter or remain in the knowledge of that breach, for example, a student who has overstayed but was granted LTE following an out of time application.

I hope this answers your question.

Kind regards
Customer: replied 11 months ago.

One final question - if we were to marry in the US would that improve her chances of receiving a general tourist visa, as opposed to if we were just fiances? Does it make the case stronger?

Expert:  UK_Lawyer replied 11 months ago.
Thank you for your reply.

If you did marry and she wanted to arrive to the uk, them she would have to provide very strong evidence that she will return to her home country. The reason is that the home office would not want her to try and settle in the uk by way of a visitors visa.

Although it may not be your intention, the fact that you are married will pose a question in the immigration officers mind that it could be something that can occur.

In instead you provide evidence of you having moved outside of the uk and living with your partner abroad, it would help ease any suspicions that the immigration officer has.

Again her criminal convictions would have to be assessed.

I hope this clarifies the matter.

Kind regards
Customer: replied 11 months ago.

I'm confused (again) - what if we one day decided to settle in the UK? We could only do that if we marry in the UK?


 


What is the best option for us - what will give us maximum freedom?

Expert:  UK_Lawyer replied 11 months ago.
Thank you for your reply.

1. If you decide to settle in the uk then paragraph a320 would apply and the home office will take into account the effects of a refusal. As previously mentioned, if your partner is applying for a settlement visa then the home office should be more lenient when viewing her previous history.

2. I believe that if you marry in the US and then submits an application for settlement in the uk then this would have a better chance of success

If she visits the uk then again this maybe more difficult due to her criminal history as paragraph a320 does not apply to visit visas.

In believe that if she wants to visit the uk she needs to state when asked that she has served a custodial sentence.

I hope this answers your question.

Kind regards
Customer: replied 11 months ago.

So just to be absolutely clear; if she wishes to visit the UK on a visitors visa then A320 will not apply but they may still grant her a visa on a discretionary basis?

Expert:  UK_Lawyer replied 11 months ago.
Thank you for your reply.


Yes, the home office will decide each case on its own merits, to assist the case she should state any mitigating circumstances surrounding her conviction.

I hope this clarifies the matter.

Kind regards
UK_Lawyer, Solicitor
Satisfied Customers: 2089
Experience: I am a qualified solicitor and an expert in UK law.
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