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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 1943
Experience:  I am a qualified solicitor and an expert in UK law.
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Hi, my situation is exactly like those in this post that

Resolved Question:

Hi,

my situation is exactly like those in this post that you answered. the only difference is i am male and my partner is of settled status in the uk and we have a 6 month old baby.

i was refused discretionary leave to remain in the same way as on: http://www.justanswer.com/uk-immigration-law/7malm-mrs-najat-xxx-najatxxxxx-xx-xxxxxxx-xxxx.html

main reason is we have a subsisting genuine relationship but we do not have a 2 year proof of that - reason i was married to someone else then and because of abuse the relationship had ended she withdrew support for my application in february this year. main reason for ending is problems arising from her infidelity which resulted in a child over 1 year ago.

i went into depression as a result and overstayed the 28 days- up to july this year when i decided to regularise my stay with my partner who had helped me through the depression for over a year and who i had known for many years.

home office refused me on 2 year subsistence because i am not married yet to my new partner as i am going through divorce . they quoted the same references on article 8 and the rest just like in the mentioned post. i came to the UK in January 2007 as student. got married in 2010. applied for extension in 2012 as i had not done life in uk test. varied application to indefinite and then my wife pulled out at the last minute to stop my application in a domestic dispute.

file has been transferred to local enforcement with no right of appeal.

can you point me towards a right directions as i do not want to be separated from my family.
Submitted: 5 months ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 5 months ago.
Hi, thank you for your question. Please remember to rate my service so I am credited for my time.

Just to clarify how long have you been residing with your current partner?
Have you written a letter to the home office for reconsideration.

Kind regards
Customer: replied 5 months ago.

I have known her or over 5 years.


 


we begun dating mid 2012 as i was having issues with my wife then - she had got a child with someone else while married to me in early 2012. i went officially to meet my current partners parents around august last year. we officially started living together in February this year. we did not have any letters of mail to same address unfortunately. my partner came to england as a minor. we are also thinking of applying for a british passport for the baby. my partner is eligible for that too. we originally come from the same country

Expert:  UK_Lawyer replied 5 months ago.
Thank you for your reply.

Will you partner consent to the child being registered as a British national?
Do you have full custody of the child?

Kind regards
Customer: replied 5 months ago.

Yes we are about to send the application for UK passport tomorrow.


 


Full custody... no. of course i have shared parental responsibility only

Expert:  UK_Lawyer replied 5 months ago.
Thank you for your reply.

It is unfortunately a very difficult situation to be in. At this moment in time the home office have made it very difficult for applicants to regularise their stay on the basis of being unmarried partners if you do not have the documents required for two years cohabitation.

In your case as you did not have evidence of 2 years cohabitation your application was refused. Has you been married to your new partner and met the requirements under the immigration rules your application had a better chance of success.

What is complicated about your situation is that your partner is also in the UK and if they have joint custody of the child then the home office will look at the welfare of the child and see what the effects of the child's removal; from the UK be they will look at the following:

1. Can the child live with the mother?
2. Does the child have a relative whom will look after them?

If they home office decide to answer the above questions with a 'no' then they may state that as the child is young they can go back to your home country ( with the mother's permission) and ask you to remain there. It may be in your favour that the mother doesn't allow you to take the child because then you can argue that if you were to leave then you would have difficulty is seeing your child, therefore it would effect your family life.

What you may also look to do is apply for a derivative rights documents, this documents gives permission the an application to remain in the UK. A person may qualify for a derivative right of residence in one of the following categories:

• as the primary carer of a British citizen child or dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the EEA;

• as the primary carer of an EEA national child who is exercising free movement rights in the UK as a self-sufficient person, where requiring the primary carer to leave the UK would prevent the EEA national child exercising those free movement rights;

• as the child of an EEA national worker/former worker where that child is in education in the UK;

• as the primary carer of a child of an EEA national worker/former worker where that child is in education in the UK, and where requiring the primary carer to leave the UK would prevent the child from continuing their education in the UK; or

• as the dependent child aged under 18 of a primary carer in one of the categories set out above, where requiring that dependent child to leave the UK would force the primary carer to leave the UK with them.

http://www.ukba.homeoffice.gov.uk/eucitizens/derivative/applying-derivative/

Your options would be as follows:

1. Ask the home office to reconsider the decision stating the reasons why you feel your child would be effected if you leave, as on the basis of unmarried partner visa the home office have made the correct decision to refuse you as you have not been cohabiting for 2 years.
2. You submit an application for derivative rights documents as stated above.
3. You submit discretionary leave to remain application, on the basis of your child and the effects of you leaving on your child on the fact that if you removed you would not be able to see the child.
4. You marry your current partner and apply for a spouse visa.

What I would suggest you do firstly is apply for the child's British citizenship then you can make one of the above applications giving you a stronger base.

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 5 months ago.

Ok. I see. I'm wondering what this would mean in relation to the fact that my case has been passed to local enforcement office and my solicitor has made the mandatory call to the team stating we will make representations... any ideas on what this can/should mean.


 


Secondly, what are my chances of getting married seeing as i have been rendered 'overstayer' without having to leave the UK (- my passport is with the enforcement team! And it just expired in september the home office having kept it since early 2012).


 


What is your thoughts on PAP and JR in relation to my case - is this something i should put on overdrive or not... thank you

Expert:  UK_Lawyer replied 5 months ago.
Thank you for your reply.

1. In regards XXXXX XXXXX call this means that the enforcement officer knows that you will be making representations and stating reasons why your case should be allowed BUT this would not means that they will suspend any enforcement action, they can still do this whilst they review the further representations.

2. Regarding marriage, your chances do look slim because the registry office now report any suspicious marriage requests to the home office and in your case if you don't have a passport then they will inform the home office.

3. In respect of the PAP and JR, I think this should only be perused if you feel that you can add elements of human rights ie how the mother of the child will feel ( if the child had to leave with you) or how you would feel ( if you were told to leave without the child) I think in your case it all depends on the child and the effects of the child remaining in the UK or leave on you and your partner.

You do not have a case regarding unmarried partners visa as you do not meet the requirements. Personally I would suggest you apply for a derivative rights documents , it is cheaper and it will concern your child and the effects on your child of you remaining or leaving , which I feel will be the same grounds if you do go through the JR route. You should talk to your solicitor and go for the alternative which he suggest but do state the above to him and you can then decide between you wish you feel is the best way baring in mind the costs involved.

You should however as stated, apply for British Citizenship for the child.

Kind regards
UK_Lawyer, Solicitor
Satisfied Customers: 1943
Experience: I am a qualified solicitor and an expert in UK law.
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