# Brit with overstayed non-EU spouse - spousal visa declined



## limelite (May 17, 2013)

Hi 

I'm a British citizen and unmarried partner, both in late twenties to a non-EU citizen who overstayed his visa from 2009 - after 8 years studying and graduating with two degrees. We consulted an immigration solicitor who took us through several options including applying out-of-country application for him to return, but we reached the decision to apply in-country as unmarried partners. We made supporting statements we had been together more than two years and living together for 1year and 3 months. 

The were pending motoring offences on fiance's name. These were not offences by him as it happened when he didnt own a car. Bailiff letters followed his addresses and caught up at our new address as we only learnt they had visited after a letter through the post, too late to appeal. So looking at this the solicitor asked to place our application ASAP to clarify any adverse effects of these offences first which are now being paid for instalmentally. Everything else seemed fine - finances, accommodation, we sent photos and all 23rd March, Biometrics came back 2 weeks after. 

Turns out the application was processed quickly, refused with no ground to appeal (don't have the letter yet - read below):
-based on fiancee overstaying under new rules and application cannot be considered
-and home office maintains we did not demonstrate a substantial relationship. 

Motoring offenses were not mentioned. The situation is now we could be anticipating a deportation notice according to the solicitor. The solicitor has advised we collect further evidence for judiciary action if we wish to continue to push this in-country and I think I'm pregnant. There are a few things that worry us about the solicitors as well - the fact that the motoring thing made us apply pre-maturely ( even though the overstaying was already bad). Also the letter came back and still we haven't received it through the post seven days after (this is second time where their secretary is 'forgetting' to put letters in the mail).

So question is it worth chasing this in-country? Judicial review may incur a fine if judge declines our case. Finances can only cover potential wedding(s) and new baby. 
To travel abroad and back and still potentially face a negative decision because of the overstaying and this latest decision - is a bigger risk, no? Or this will be the proper route and all previous decisions will be ignored? 
Any use fast tracking our UK marriage? 
Shall I find a new solicitor? What to do with the current one? 

Thank you for any clarifications, Thanks


----------



## nyclon (Apr 3, 2011)

The major qualification for an unmarried partner visa is living together in a relationship akin to marriage for 2 years and you have to be able to prove it with joint responsibilities like joint tenancy and joint bank accounts. You were rightly refused because you did have not lived together for 2 years. Other than that your post doesn't make much sense.


----------



## limelite (May 17, 2013)

nyclon said:


> The major qualification for an unmarried partner visa is living together in a relationship akin to marriage for 2 years and you have to be able to prove it with joint responsibilities like joint tenancy and joint bank accounts. You were rightly refused because you did have not lived together for 2 years. Other than that your post doesn't make much sense.


Thank you for your response. We have been complete idiots for not respecting the guidelines  - we had bank accounts and joint tenancies for 1.5yrs. Is there any way out of this?.. including what the solicitor is suggesting - going for a judicial process (sorry I dont know the right titles of the law officials involved). thank you for help anybody


----------



## 2farapart (Aug 18, 2011)

I'm not sure how these motoring offences are connected. In this instance, be guided by UKBA's reasons for refusal. If they don't state anything about undeclared convictions, then the motoring offences are not likely to be the issue.

The biggest problem seems to be your partner's overstay (unless your partner is now on a legitimate visa and the overstay happened longer than 12 months ago). If he's still overstaying, he's here illegally and needs to leave before UKBA tries to deport him. If he leaves of his own free will, he will only face a 12-month ban. However, if UKBA deport him, it could be a 10-year ban. If the overstay is still outstanding, I'd be MOST concerned about this solicitor because telling him to apply regardless was the worst possible thing to do.

If your partner IS now on a legal visa, then you failed on meeting the requirements for unmarried-partners (as nyclon said, you have to be living together for 2 years). Did your solicitor advise you to apply for this particular visa? If so, employ a new solicitor (it's a basic rule that any immigration expert should know). You can't meet the living-together requirements but you could opt to get married, which would do away with the 2-year requirement altogether.


----------



## limelite (May 17, 2013)

2farapart said:


> I'm not sure how these motoring offences are connected. In this instance, be guided by UKBA's reasons for refusal. If they don't state anything about undeclared convictions, then the motoring offences are not likely to be the issue.
> 
> The biggest problem seems to be your partner's overstay (unless your partner is now on a legitimate visa and the overstay happened longer than 12 months ago). If he's still overstaying, he's here illegally and needs to leave before UKBA tries to deport him. If he leaves of his own free will, he will only face a 12-month ban. However, if UKBA deport him, it could be a 10-year ban. If the overstay is still outstanding, I'd be MOST concerned about this solicitor because telling him to apply regardless was the worst possible thing to do.
> 
> If your partner IS now on a legal visa, then you failed on meeting the requirements for unmarried-partners (as nyclon said, you have to be living together for 2 years). Did your solicitor advise you to apply for this particular visa? If so, employ a new solicitor (it's a basic rule that any immigration expert should know). You can't meet the living-together requirements but you could opt to get married, which would do away with the 2-year requirement altogether.


. 


I cant thank you enough for these clarifications. The solicitor placed the application themselves. In hindsight it seems our case was some kind of experiment to see how motoring offences will affect a visa application. Or something along those lines . Is there anything we can do to at least get money back from this solicitor? It also seems whereas before deportation was not impending now we have it [with bans] as full time concern. What kind of solicitor is appropriate now? We are due to get married and are not even sure if this is now possible. Your clarifications are helping so much thanks


----------



## ddang (Jun 21, 2012)

If he has over stayed his visa, then he needs to return home to his country to apply for another visa. Some solicitors don't know the immigration law very well and will try to tell you that you can apply within the country even if it had expired. Some visas will actually let you switch in country as long as its still valid. Some solicitors are only after money and I've had ran into this problem myself. My first solicitor didn't know jack about the immigration rules so we sought out an Immigration Solicitor who only dealt with immigration cases. Try finding a solicitor that only deals with immigration. Chances are since he has overstayed, he will be banned a year. Like mentioned previous if UKBA deports him, it will likely be 10 years.

Is there away for you to travel to his country? I know being apart is rough as everyone here can testify to that. I hope you can find an immigration solicitor to help you guys.


----------



## ddang (Jun 21, 2012)

Sorry it wouldn't let me edit.

If you have the paperwork and proof, take it to your new immigration solicitor when you find one and explain what happened. My first solicitor that screwed us over costing us thousands of dollars and pounds. My immigration solicitor that we had found asked us if we wanted to open a case against him as he did us wrongly and cost us so much money. Ask if you can open a case against him, if you have the paperwork and documentation then go for it, but it also will cost solicitor fees. 

With getting married, since he has overstayed his visa I'm not sure you can get married in the UK. You'd have to get married elsewhere. To get married in the UK I believe he would have to have a fiancé visa (to stay in UK) or marriage visitor visa(to get married in UK then leave). These are both applied for in his home country. With a fiancé visa he has 6 months to marry you then apply for FLR(further leave to remain). Later on He would then have to apply for FLR then ILR on this visa. Or you can get married out of the country and apply for spouse visa and then later on FLR then ILR. 
You do need to see if he has a ban and if so how long and could you still apply. I'm not sure on ban rules. I hope this helps and you get the advice you need.


----------



## LaraMascara (Oct 19, 2012)

Your lawyer sounds like either a moron, or a money hungry jerk. 

I'm sorry you have gone through all of this mess. 

Look into the EU Route maybe? Article 8, the Freedom of Movement Act. I'm not sure if the overstay will prevent this path... If I were in your situation I would check it out as a potential option. 

That may be an option for you. You, the UK citizen, must live and work in another EU country, while living with your non-EU partner. 

Obviously there is more to it - and lawyers are not very helpful with the EU Route. It is not a sneaky move or anything. It is perfectly legal. 

There are pages on facebook that help people going this route. 

Maybe start with this - https://www.facebook.com/groups/139807999382936/

It is called I Love My 'Foreign' Spouse.


----------



## limelite (May 17, 2013)

Its like slowly waking from a bad dream. Cant thank you guys enough.. 

Apparently some boroughs allow marriages without visa? A friend of a friend married his wife (EU) here eventhough he didnt have any stay?

I am weary about opening a case against another solicitor. But the money spent seems to have been wasted. Would at least love to get it back and put it to better use. 

@LaraMascara I do love my foreign spouse. Just need help with us getting to start a family properly  thank you!! checking it out now.


----------



## LaraMascara (Oct 19, 2012)

You cannot marry a non-EU spouse in the UK if that person is not here legally - Don't do that. It will just make everything worse, and it will not grant that spouse, or you, any additional rights. 

Again, I'm really sorry for your troubles.


----------



## 2farapart (Aug 18, 2011)

limelite said:


> .
> 
> 
> I cant thank you enough for these clarifications. The solicitor placed the application themselves. In hindsight it seems our case was some kind of experiment to see how motoring offences will affect a visa application. Or something along those lines . Is there anything we can do to at least get money back from this solicitor? It also seems whereas before deportation was not impending now we have it [with bans] as full time concern. What kind of solicitor is appropriate now? We are due to get married and are not even sure if this is now possible. Your clarifications are helping so much thanks


It makes me mad when I see these kinds of situations. There are unfortunately too many of them where bad advice (at great cost) was given, and frequently costs the applicant their visa. Yes, some fault lies at your partner's overstay, but nevertheless your solicitor should have flagged this and given you more appropriate advice.

Regarding your current solicitor, I'm no expert, but there's some useful advice here: "Money and women - Wills and tax - Savvywoman - money and women". You might also want to take advantage of the Citizen's Advice Bureau - not about immigration, but on how best to approach the matter of a refund. I imagine it's going to come down to whether the solicitor lists immigration advice as one of their services. If so, you have a strong case already, and it will come down to correspondence you have. For example: any proof you have that you made the solicitor aware of your partner's overstay or that you'd only been living together for 1.5 years prior to the solicitor submitting your application. Anyone with immigration expertise would have known that both these situations were guaranteed failures. 

In the meantime, your partner needs to make swift arrangements to leave the UK because his overstay has now come to the attention of UKBA. He needs to leave before they ask him. If he leaves himself, at his own expense, he will be banned for a year. If UKBA deports him, it will be a minimum 10-year ban - something you desperately need to avoid. This now means you'll either be living apart for at least a year, but this will be the better outcome of the two. There is no chance of him remaining in the UK and switching to another visa and your solicitor was wrong to suggest it. He needs to have been out of the UK for a minimum 12 months before attempting to reapply. When he does reapply, I recommend you use an OISC-listed solicitor - see: UK Border Agency | Immigration advisers and agents for more info.

I wish you the very best of luck. Keep us posted on how you progress with your solicitor and if you manage to get a refund, how you went about it (sadly, too many others have similarly woeful tales).


----------



## 2farapart (Aug 18, 2011)

I should have added: when your partner does reapply, unless you are moving with him overseas when he leaves, the unmarried-partners visa won't be an option because you won't have been living together. Therefore, the only avenues open to you would be the fiancé (intend to marry in UK within 6 months) or spouse (already married) visas.

Good luck!


----------

