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Hi guys,

This is my first post and wondering if
you can give a bit of help on how to proceed.

My girlfriend:
- Non EU country
- In the UK since 2013
- Student Visa expired in 2015 (Overstayer since)

Me:
- EU country
- In the UK since Oct. 2016
- Pre-settled through EU Scheme since 2019

Also:
- Living together for 2 years (not married)
- Expecting a baby in 3 months.

Initially we thought of applying for
a Partner or Parent Visa after the baby is born,
but recently we found out about the EU Scheme.

I’ve seen some posts advising to go for EEA-PR
to get a Residence Card and then
apply for the EU Scheme for my girlfriend.

- Is that something that can work for her?
- Do we still have time to do that till Dec. 31st?
- Should we hire a lawyer or we can do it ourselves?
- In case it fails, will it affect future visa applications?

Thanks a lot!

Hello

The only way to go from illegal to 5-year residence in the UK without having to go back home is the EEA FM route which is open only to people MARRIED to EEA citizens.

A girlfriend, even pregnant, doesn't qualify for that

Hi Zerubbabel,
thanks for clarifying that.

I've seen some lawyers claim that even unmarried partners
can apply for EUSS from Jan.1 2021 until June 2021,
but maybe there are restrictions to that too

Going back is not an option now,
both because of Covid and pregnancy risks.

Is getting married in the UK an option then?
And does the marriage have be take place till end of 2020 or June 2021?

kst wrote: ↑

Wed Nov 18, 2020 2:13 pm

I've seen some lawyers claim that even unmarried partners
can apply for EUSS from Jan.1 2021 until June 2021,

There are two problems with the lawyers' assertion:

1. In order to apply as unmarried parter to the EUSS you generally first need a EEA RC. I say generally because there is ONE exception to this: unmarried partners of citizens from Northern Ireland, who are allowed to apply supplying alternative evidence. Unmarried partners of EU citizens from all other nationalities need a EEA RC to apply.

2. Only people whose relationship started before 31st December 2020 are allowed to apply for the EUSS in 2021. And the start of the relationship for unmarried partners is not the date you met or started going out, it is the date the EEA RC is issued. No EEA RC, no relationship. Applications for EEA RCs are taking roughly a month (and a bit) in the best of scenarios, so if even if she applied right now, she might not be issued a card before 31st December 2020, and this would mean your relationship did not start before 31st December 2020. Also, I am not sure you can be issued a EEA RC as unmarried partner if you are an overstayer, unmarried partners cannot rely on any automatic right of residence that protects them from deportation...

Is getting married in the UK an option then?

I do not think it is an reliable option for overstayers.

Getting married as a foreign person in the UK is far from straightforward. First, you need to book a ceremony date, and only once this has been booked and paid for, you are allowed to book an appointment to give notice of marriage. The thing is, for foreigners, this appointment needs to take place at least 70 days before your ceremony date, to allow for the Home Office to refuse the green light if they think it's marriage of convenience. And because of this, when you inquire for ceremony dates and say you are a foreigner, you are not offered immediate dates, but dates that are several months away. In other words, first, you cannot get married overnight, and second, the ceremony cannot proceed if the Home Office does not allow it (Would it allow a wedding of an overstayer?).

And even if the Home Office allowed, the queue to get appointments is long. At least where I live, there are no appointments left for ceremonies taking place in 2020; foreigner requirement removed.

And does the marriage have be take place till end of 2020 or June 2021?

This is the second difficulty. The marriage would need to take place in 2020, because only family relationships that start before that date qualify for the Settlement Scheme. As with unmarried partners, the start of the relationship is not when you met or started going out, it is the wedding date. So no wedding, no relationship.

Thanks for those remarks kamoe.
They are really helpful.

So if i understand correctly, you don't say it's impossible for the EEA RC to work.
If she applies for EEA RC and if gets her Residence Card before December 31st,
she can theoretically apply to the EU Scheme. Is that correct?

Also what happens if for some reason the EUSS or the EEA RC application fails?
Will that affect future Visa applications?
Or it doesn't matter?
We are worried if one failed application makes things worse in the future, instead of better.

kst wrote: ↑

Wed Nov 18, 2020 3:44 pm

So if i understand correctly, you don't say it's impossible for the EEA RC to work.
If she applies for EEA RC and if gets her Residence Card before December 31st,
she can theoretically apply to the EU Scheme. Is that correct?

Correct. Not impossible.

But, in my personal opinion, success is unlikely.

How would you support her application for EEA RC as unmarried partner? You usually need solid rock evidence that you are in a relationship 'akin to marriage', just cohabiting is not enough. You need to demonstrate joint financial responsibilities, such as a joint tenancy agreement, a joint bank account, utility bills to both names. Does she have this kind of proof, given she has been an overstayer for 5 years? Any work she has undertaken is illegal, any tenancy contract is in breach of immigration rules, etc. You see the point.

That, or you need to prove you are the father of the child. How to do this if the baby is still yet to be born?

Also what happens if for some reason the EUSS or the EEA RC application fails?
Will that affect future Visa applications?

Or it doesn't matter?
We are worried if one failed application makes things worse in the future, instead of better.

This is really the least of your worries. Many people have seen their EU applications refused by silly errors, missing documents, etc. only to be corrected in a further application that is then approved.

What might be a concern is not the outcome of the application itself, but a potential deportation order that might follow the fact of admitting an overstayer status. Now... I do not say this to scare you, only to for you to consider all potential consequences. I am nor familiar with any of these processes, deportations might actually be rare, and I suppose the case of a pregnant woman in the middle of a pandemic would be a special circumstance... So... in order to answer your bottomline question:

Your case is far from ordinary. Taking professional legal advise will not be unwise.

It's possible to marry an overstayer but it's risky. The Home Office may decide to investigate the relationship; but they may not. They don't do it automatically. When I married with my wife, she was as illegal as you can get. The council notified the Home Office and we were scarred that they may take action. We had the phone number of the solicitor on us in case immigration enforcement shows up... But nothing happened. We just got married then she applied under EEA FM.

As kamoe explained, even if this option is open in theory: marriage -> EEA FM -> Settlement scheme, it may not be viable due to the time constraints we have now.

But you know what: start! I know it may sound crazy, but many deadlines are a bit in a grey area at the moment. Get the ball rolling now. You have no choice anyway.

Call your council and see what they are offering at the moment in terms of dates considering your particular situation. In any case, being married always strengthen your case regardless which immigration route will be taken in the future.

When my then girlfriend was illegal, we spent a fortune seeing solicitors. They all told us the same thing: take the risk and get married as it's opens more immigration doors and help building stronger cases.

I know it's stressful, but she must face the music at one point.

Does she hold a valid passport? Many overstayers I met don't. That can be a big issue.

Zerubbabel wrote: ↑

Wed Nov 18, 2020 4:25 pm

Call your council and see what they are offering at the moment in terms of dates considering your particular situation. In any case, being married always strengthen your case regardless which immigration route will be taken in the future.

I'm sorry to be a pain, but the requirement to allow for 70 days to give notice is, to my knowledge, inflexible. And there are only 43 days left of 2020.

But yes, even if with a slim chance, nothing really stopping you from applying to the EEA RC.

Zerubbabel wrote: ↑

Wed Nov 18, 2020 4:25 pm

Does she hold a valid passport? Many overstayers I met don't. That can be a big issue.

Yes she has a passport. Her embassy doesn't do residence checks to renew them.

kamoe wrote: ↑

Wed Nov 18, 2020 4:32 pm

I'm sorry to be a pain, but the requirement to allow for 70 days to give notice is, to my knowledge, inflexible. And there are only 43 days left of 2020.

So if i call the council they will give me a date after 70 days?
There is no way to give 29 days notice like most marriages in this country?

Something i forgot to mention is that the pregnancy is through fertility treatment.
So our names are in the documents.
Will that help to strengthen our case?
Or marriage is even more important, if somehow we pull it off?

It's good that the Embassy renews without checking residency status. Most do. So, ensure there is a passport with some time in it.

As foreign national subject to immigration control, the notice period will be 70 days. This is to give time for the Home Office to investigate if they want to investigate. But they may not investigate.

That would put your marriage in 2021. Too late for EEA FM. But you may never know. Imagine there is an extension of the transition period or the creation of any further dispositions, you will always be in better position to leverage if you are married.

The fertility treatment won't help. Being pregnant may get her some leniency with the Home Office enforcement team in the unlikely case they decide to look at her case more closely.

Get a solicitor on short call. Someone specialised with deportations. Just in case things go wrong, you want to be supported by the right person. But I don't think anything will go wrong.

kst wrote: ↑

Wed Nov 18, 2020 4:57 pm

So if i call the council they will give me a date after 70 days?
There is no way to give 29 days notice like most marriages in this country?

70 days notice is the legal requirement if one person is from outside of the EU.

Something i forgot to mention is that the pregnancy is through fertility treatment.
So our names are in the documents.
Will that help to strengthen our case?

Not wanting to be intrusive but...

...she is an overstayer, but before trying to regularise her own situation, and her entitlement to free healthcare, you go first for fertility treatment? Why? I'm sorry, I only ask, since the caseworker will be asking themselves the same question! She got pregnant 6 months ago, yet you are thinking of her legal status only now. Why? (not saying this is true, but this is how it could be looked at).

I suppose this helps only in a context where you can show that you are a genuine couple and not just two people who contractually arranged she got pregnant.

Or marriage is even more important, if somehow we pull it off?

Every application is different. At the end of the day, the wider context and the balance of probabilities that you can present to the caseworker is what will determine the outcome of your application.

This is a very challenging scenario.
OP did say that he is Eu national but did not specify the nationality as some EU NATIONALS treated in a different way.

euspouse07 wrote: ↑

Thu Nov 19, 2020 3:43 am

OP did say that he is Eu national but did not specify the nationality as some EU NATIONALS treated in a different way.

The only nationality that is not subject to the deadlines discussed above, and who would benefit of a more allowing deadline of 2025 to get married, is Swiss citizens. Switzerland is not part of the EU, and since the OP is describing themselves as an EU citizen I'm assuming they are not Swiss.

kamoe wrote: ↑

Thu Nov 19, 2020 4:35 pm

Switzerland is not part of the EU, and since the OP is describing themselves as an EU citizen I'm assuming they are not Swiss

Correct... that's European Union, not Switzerland.

What is still not clear to me is if the application to get a card or permit
is going to be the EEA (PR) or EEA (EFM). The EEA (PR) clearly states that a valid residence documentation
(registration certificate, residence card, or EEA family permit) throughout the relevant qualifying
period is needed. Maybe the EEA (EFM) is more appropriate.

Anyway we scheduled an appointment with an immigration lawyer check those details.

kst wrote: ↑

Thu Nov 19, 2020 7:38 pm

What is still not clear to me is if the application to get a card or permit is going to be the EEA (PR) or EEA (EFM).

You are confusing RC with PR, and as a result, you are comparing apples and oranges. Try to think/find out what the letters mean:

PR = Permanent Residence
RC = Residence Card, usually meaning limited residence for 5 years
FM = Family Member
EFM = Extended Family Member

In your partner's case, she can only aim to apply for a Residence Card as Extended Family Member, since you are unmarried. So the answer to your question is, to put it in full: RC EEA (EFM).

The EEA (PR) clearly states that a valid residence documentation (registration certificate, residence card, or EEA family permit) throughout the relevant qualifying period is needed.

No one has told you to apply for PR. I said EEA RC.

Maybe the EEA (EFM) is more appropriate.

Not more appropriate but actually the only option.

Hello

Just to add my own input here, i was an overstayer 2015 to 2020 , I applied for EFM unmarried partner with my girlfriend , We got the residence card in August this year and I got pre-settled stutus in september .
There is hope so long as you have your proof of cohabiting

Stay stong

afrogonzo wrote: ↑

Fri Nov 20, 2020 2:49 pm

Just to add my own input here, i was an overstayer 2015 to 2020 , I applied for EFM unmarried partner with my girlfriend , We got the residence card in August this year and I got pre-settled stutus in september .
There is hope so long as you have your proof of cohabiting

Hi... good to know you have been successful.

How long did it take you to receive the residence card?
Did you meet the 2-year criteria... what documents did you provide?

kamoe wrote: ↑

Wed Nov 18, 2020 5:29 pm

Not wanting to be intrusive but...

...she is an overstayer, but before trying to regularise her own situation, and her entitlement to free healthcare, you go first for fertility treatment?

I was wondering if they have paid for the IVF (if they had this in the UK) as it is not a free NHS service for an overstayer. Nor is NHS maternity care and birth, a free service for an overstayer: the NHS will treat her for maternity care and birth because this is classed as an emergency, but she still has to pay. They add 50% to NHS bill if there is not insurance to pay. Her total NHS debt so far, could run in tens of thousands and will keep going until she has permission to be in the UK.

Even those paying the Immigration Health Surcharge with their visa, cannot have free IVF beacuse IVF is an optional healthcare and expensive. Under EU routes, the EU says the UK must give bill free heatlhcare, as a British citizen living in the UK can have.

I have looked it up - one treatment cycle of IVF from the NHS, seems to cost £5,000. Those who cannot have this for free on the NHS, will often go to a cheaper country for their IVF.

JB007 wrote: ↑

Tue Nov 24, 2020 12:11 pm

kamoe wrote: ↑

Wed Nov 18, 2020 5:29 pm

Not wanting to be intrusive but...

...she is an overstayer, but before trying to regularise her own situation, and her entitlement to free healthcare, you go first for fertility treatment?

I was wondering if they have paid for the IVF (if they had this in the UK) as it is not a free NHS service for an overstayer. Nor is NHS maternity care and birth, a free service for an overstayer: the NHS will treat her for maternity care and birth because this is classed as an emergency, but she still has to pay. They add 50% to NHS bill if there is not insurance to pay. Her total NHS debt so far, could run in tens of thousands and will keep going until she has permission to be in the UK.

Even those paying the Immigration Health Surcharge with their visa, cannot have free IVF beacuse IVF is an optional healthcare and expensive. Under EU routes, the EU says the UK must give bill free heatlhcare, as a British citizen living in the UK can have.

My comment was meant to highlight the fact that a pregnancy is perhaps one of the most delicate times in the life of a woman. Add to that the fact that pregnant women are one of the demographics at risk during the pandemic. Add to that overstayers face higher barriers to access health care than regularised residents. Add to that that the birth itself will put her, and her legal status, on the spotlight.

Why on earth would anyone intentionally become pregnant before regularising their legal status, specially during this unprecedented sanitary crisis? (the caseworker WILL ask this question, and not inauspiciously).

kamoe wrote: ↑

Tue Nov 24, 2020 1:10 pm

JB007 wrote: ↑

Tue Nov 24, 2020 12:11 pm

kamoe wrote: ↑

Wed Nov 18, 2020 5:29 pm

Not wanting to be intrusive but...

...she is an overstayer, but before trying to regularise her own situation, and her entitlement to free healthcare, you go first for fertility treatment?

I was wondering if they have paid for the IVF (if they had this in the UK) as it is not a free NHS service for an overstayer. Nor is NHS maternity care and birth, a free service for an overstayer: the NHS will treat her for maternity care and birth because this is classed as an emergency, but she still has to pay. They add 50% to NHS bill if there is not insurance to pay. Her total NHS debt so far, could run in tens of thousands and will keep going until she has permission to be in the UK.

Even those paying the Immigration Health Surcharge with their visa, cannot have free IVF beacuse IVF is an optional healthcare and expensive. Under EU routes, the EU says the UK must give bill free heatlhcare, as a British citizen living in the UK can have.

My comment was meant to highlight the fact that a pregnancy is perhaps one of the most delicate times in the life of a woman. Add to that the fact that pregnant women are one of the demographics at risk during the pandemic. Add to that overstayers face higher barriers to access health care than regularised residents. Add to that that the birth itself will put her, and her legal status, on the spotlight.

Why on earth would anyone intentionally become pregnant before regularising their legal status, specially during this unprecedented sanitary crisis? (the caseworker WILL ask this question, and not inauspiciously).

Until he comes back to tell us, we won't know why. Looking at his opening post, he arrived in the UK after the UK voted to leave the UK, has not got settlement and therefore his baby will not be born British; then there was Brexit on 31 January 2020 and the end of the transition period 31 December 2020 - perhaps they thought her getting pregnant is a way for an overstayer to stay in the UK? Now they are looking at how she can stay in the UK for free, by using the EU?

He will know the EU forces the UK to give an EEA citizen "Qualified Person" and all their family members, free healthcare (whereas other EEA countries make these pay to use their health service as their healthcare is insuance based), so what I don't understand is why he would rather she (they) end up with thousands in NHS debt for an overstayer, than use the EU to make her a Family Member and get the UK to pay her health costs? They won't backdate any EU status and her NHS debt will need paying.