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Thomas
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6522
Experience:  BA (Hons), PgDip, Practising Solicitor
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FAO Tom: Regularising Overstayer status

Resolved Question:

FAO Tom: Hi, I intend to commence the process of regularising my status in the UK. can I please ask what are my chances of regularising my status in-country having overstayed my 6-months visitor's visa for nearly two years. I came into the uk in June 2011. I was a 2nd year student before coming to the uk on holiday. I did not return back due to death threats I have constantly received by some secret cult members back at UNI (no documentary evidence) thereby making it undesirable and unsafe for me to return home to continue my studies as these groups of people can be very dangerous. You can't hide in any part of the country. They are all over the place. I'm currently engaged to marry a Uk permanent resident and have been in a genuine and subsisting relationship for about 13 months. We do have documentary evidence of living together for about only a year. We also have a joint savings account with little or no funds in it, a joint-life insurance policy, joint tenancy agreement (all inclusive bill though), we also have pictures and receipts of every treats and holidays we've had. We also enjoy the blessings of our both families. My fiancée works and earns over the £18600 financial threshold for sponsors. We do not have any kids neither are we planning to have one until my status is regularised. Can you please advise on how to go about it? Many thanks and God bless. Lasgidi.

Submitted: 1 year ago.
Category: UK Law
Expert:  Thomas replied 1 year ago.
Hi

You refer to your fiance as being a permanent resident. Do you mean that they old indefinite leave to remain?

Tom
Customer: replied 1 year ago.
"FAO Tom only"

Yes I mean ILR and she's applying for her uk citizenship in two weeks time.
Expert:  Thomas replied 1 year ago.
Hi,

Drafting your answer now, 5 mins please.

Tom
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

You obviously have to apply for a spouse visa.

The difficulty is that you will probably have to do it from outside the UK.

This is because you are an overstayer and an overstay is a general ground to refuse most types of visas, including this one.

To even have a chance of an approval with an in-country application you would have to prove the persecution that you believe you would suffer if you were returned to your home country. I am sure that you believe that you would suffer persecution, or be threatened by it, but you would have to make the UKBA or an immigration appeals tribunal be sure. Generally this is only done with documentary evidence of who you would suffer persecution from and examples of others that it has happened to.

If applying in country you would certainly have to instruct a solicitor and a barrister to act on your behalf.

However, it is generally quicker and easier to apply outside of the UK.

Please note that in order to be eligible for either application you would have to show that your spouse has been in receipt of the employment income above the threshold level for 6 months. If this has not yet been reached, then you should wait until she has been in receipt of it for this length of time.

If the application is well prepared and you meet the following eligibility criteria then it will make the application easy and quick to decide upon for the UKBA. To be eligible, you must show:-

• 1. That you are legally married to each other
• 2. You are present and settled in the UK
• 3. You intend to live permanently together here in the UK as husband and wife
• 4. You can support each other without the need for public funds
• 5. You have suitable accommodation which is owned or lived in only by you or your household and where you and your dependents can live without any help from public funds
• You must meet the financial requirement:-
• http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/can-you-apply/financial/
• Further guidance:-
• http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/section-FM-1.7.pdf?view=Binary

• This means that the UK based spouse must earn a minimum income threshold of £18,600. Alternatively, if you have savings of £62, 500.00 then you would not have to prove any salary. You can also use a mix of the two.
You have to produce to the UKBA documentation that proves the above. This would be some of the following:-
• Bank statements from both you and your spouse going back 6 months showing the income/capital you have available
• Payslips (6 month of) and a letter from your employer stating that you have a permanent job, contract of employment
• Documentary evidence of any other assets you hold (eg. Shares, evidence of ISAs or bonds)
• Marriage certificate, Birth Certificate, passport
• Evidence of correspondence between you and your spouse showing that the relationship is credible and genuine (eg. Emails, letters, evidence of previous trips, photos showing you together, phone records
• Evidence of the accommodation where you will live or that you can afford to accommodate yourselves once here.

• Further information here:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/documents/maintenance/


He will need to apply for settlement (ie. spouses visa) by using form VAF4A Settlement if applying outside the UK and FLR(M) if applying within the UK, available for download from UKBA's website.


You can find Uk immigration solicitors through the following Law Society Website search engine:-
http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law


Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 1 year ago.
"FAO Tom"

Thanks for the response but i need a few more clarifications.

Regularising In-country ONLY: Having overstayed, Would u suggest that I apply for discretionary leave based on private/family life instead of a spouse visa since we are not legally married as yet?

What are the chances of getting married here in the uk?

There is no thought of taking the risk to go back home knowing fully well that the chance of surviving persecution/death is NIL. Are similar newspaper reports sufficient enough to prove the form of persecution someone like me may face from these people?

Like i stated earlier, My fiancée and I are not legally married yet and we've only lived together for about a year. We currently live in a shared 3 bedroom apartment with two other friends and hold a joint tenancy agreement. Is the length of our relationship reasonable enough to convince HO about the genuineness of our relationship?

She earns about £21,800 p.a and she's been my main support. Even though I also get some financial support from my extended family members.

Lest I forget to mention that I lost possession of my passport and National ID since March 2012 while moving house (unreported) but I do have my birth certificate and educational documents.

Please I seek guidance solely based on regularising my status in-country.

Thanks.

Lasgidi
Expert:  Thomas replied 1 year ago.
Hi Lasgidi,

You would not apply on a discretionary basis at the moment. In order to apply on the basis of being an unmarried partner you would have to show that you have cohabited for a period of two years. You do not appear to have reached this time yet and so I would not advise applying this way.

In order to marry in the UK you will have to prove your identity. You will need your national ID card or passport in order to do this and you should focus on obtaining a new one via your country's embassy.

You will also need this to make your application, so this really should be your primary focus now.

If you married then the length of the relationship will help convince the UKBA that the marriage is genuine, but the length is not sufficient to apply on the basis of being unmarried partners (as explained above).

Once you have obtained your replacement passport or ID card, you should only apply from within the UK if you are certain that you would suffer persecution in your home contry if the UKBA required you to return there and also have some documetary evidence of the type of persecution of the same type that others have also suffered. The thing that you need to be mindful of is that you do not have an automatic right to apply from within the UK because of the overstay. You would have to argue the persecution and also that it would be disproportionate and unreaosnable of the UKBA to require you to return home.

Therefore, if applying within the UK you would effectively be accepting that you will have to pay considerable legal fees and also that there is a real possibility that it might not be accpeted on appeal, which would force you to return home and make the application from there anyway.

Please remember to rate my answer.

Kind regards,

Tom

Expert:  Thomas replied 1 year ago.


Is there any further information you require?

I just want to ensure that you are satisfied, so please let me know if you have any further queries on your position. Please remember to RATE my answer, if you are satisfied.

Kind regards,


Tom
Expert:  Thomas replied 1 year ago.

Is there any further information you require?

I just want to ensure that you are satisfied, so please let me know if you have any further queries on your position. Please remember to RATE my answer, if you are satisfied.

Kind regards,


Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6522
Experience: BA (Hons), PgDip, Practising Solicitor
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