Exception to apply for FLR (FP) within UK as visitor

[borderbob]

Hi there,

I am seeking advice or ideas around my situation and likelihood of an application seeking exception to the Rules. I have read the UKVI website, the Immigration Rules, Guidance Notes, engaged an Immigration Lawyer and searched this board, but I need some advice based on real-life experience.

Background:

• Currently in UK with leave to enter (6 months) on my NZ passport

• I first entered during this period almost 2 years ago, along with my partner (UK citizen), as we were pregnant and wished to be in the UK for the pregnancy and birth. (We were in Argentina at the time.) The priority was to get my partner safely to the UK as early in the pregnancy as possible, to engage with health care services.

• Given that making a FLR application at that stage would involve me (or us) having to first travel to NZ (from Argentina) then to UK, we decided that was not feasible, even though a 'proper' visa was what we wanted.

• Rather than just 'turn up' at the UK border though and hope/assume I would be let in on my NZ passport, we wanted to have something more tangible. So I applied for a Long Term Visitor Visa. This was declined. I believe they misread my application, because the reason for decline did not match the Application. No matter, there is no right of appeal on this type of Application.

• So we traveled to the UK anyway, and I 'turned up' but with a black mark against my name.

• I was allowed entry, and we have since left and returned several times, and I have been granted leave to enter each time.

• I have kept within the rules during this period - I have not worked nor had recourse to public funds. I can demonstrate that I have been supporting not just myself, but my family, using my own funds.

• After the birth of our daughter, my partner started a business. I have assumed the major proportion of care for our daughter to allow my partner to focus on this business.

• I have also provided some funding to the business, as a way to building towards my partner's professional future and, hopefully, one day our joint financial future.

• Neither of us have any family here in the UK, so we have no support from that perspective.

Situation:

• I am (still) wanting to put my immigration status on a more solid footing. However I have put us/myself in a difficult situation. But we do not meet the financial requirement.

• My partner has not, as yet, started receiving an income from her business, and she cut off most other work to focus on it, so she does not meet the income level required.

• We do not have sufficient savings. we would have had before we first came here, but through supporting us during this period, and in providing some finance to the business, these savings no longer meet the required level.

• I am thinking of applying for an FLR visa from within the UK, seeking exception to the rules, specifically:

1. I cannot apply from within the UK given my current immigration status
2. we do not meet the financial requirement

• The exception I would be seeking would be in regards to impact to my partner, and more importantly to our daughter, of me being forced to leave. They would be left without the support and care I provide, the family unit would be broken up. Also my partner's business would fail (or at least struggle to succeed) and that puts her and our daughter's future stability at risk.

• We have not lived in NZ (or anywhere for that matter) for a number of years. We have no established 'base' as such (we were travelling for an extended period prior to becoming pregnant). For the whole family to return to NZ it will require 2 x visas for my family, and we arrive with no house/jobs/etc.

Questions:

• What is the likelihood of success of seeking this sort of exception? Has anyone had any experience with this sort of scenario?

• Would I be applying for FLR(M) or (FP)?

I am sure I am not doing a great job of explaining all this, I apologise for it being so long, and I appreciate your patience in having gotten through it.

If anyone has any thoughts or suggestions regarding our situation, they would be gratefully received. I am trying to do the right thing with regards to immigration laws, and take care of my family!

[Casa]

In my honest opinion, only a slim chance of a FLR(FP) Partner 10 year route being successful. Your daughter is very young and the Case Worker is likely to take the view that she can easily adapt to life outside of the UK.

An FLR(FP) application is may well take 12 months or more for a decision to be made. Bear in mind that during this time you will have no right to work in the UK or have access to NHS medical facilities.

[shazi-uk]

sorry to interrupt, no intentions of disturbing the post but I need to ask this for learning purposes:
so UKVI can refuse FLR(FP) application and deport a non-EU parent and his British child?
any idea, under what law UKVI can deport a British child?

[Wanderer]

sorry to interrupt, no intentions of disturbing the post but I need to ask this for learning purposes:
so UKVI can refuse FLR(FP) application and deport a non-EU parent and his British child?
any idea, under what law UKVI can deport a British child?

Breaking the law.

No-one said the child would be deported, but the illegal parent could be.

[Casa]

This information from Right to Remain, the UK-based human rights organisation explains an Article 8 application ;
http://righttoremain.org.uk/toolkit/hum ... .html#art8

Note in particular:
Factors that could be in your favour are family in the UK (particularly British children), lack of connection to your country of origin, length of time in the UK and community connections, and some medical and mental health needs.

It is worth remembering that having a British partner or child is not enough to be granted leave to remain in the UK. The Home Office do have to show that they have considered the "best interests" of the British child, but having a British child is not enough in itself to obtain leave to remain.

Sometimes, the Home Office will say the breach is proportionate (or even that there will not be a breach) because the British citizen or resident can go and live with the person being removed in their country, or they can keep in touch by Skype and email etc. Supporting evidence could be gathered to show why that would not work – why the British citizenship or leave to remain in the UK has to be in the UK, or why the relationship wouldn't work over the internet or through occasional visits.

[shazi-uk]

that's awfully interesting...
is there any case-study where a British child was deported by UKVI... along with his/her non-EU parent.
What's the actual law which gives powers to SS/UKVI to deport a British citizen in that circumstances?

[borderbob]

Thank you so much Casa. Some very useful perspective you have provided, and I had not come across the ver useful 'righttoremain' website you have linked to, despite my endless searching on this topic! I really appreciate it.

In regards to our child 'being able to adapt to life outside the UK' - do you know on what basis does a Case Worker makes an assumption that we have an option to go to another country? Other countries have immigration rules also, and just because I am from New Zealand, does not automatically grant my family any ability to settle there, just as their citizenship here does not provide me with that right here.

To go to NZ (for example) we would be required to apply for visas for both my partner and child, with no guarantee those applications would be successful. And we are talking 2 applications there vs 1 here. Or does HO not take such factors into consideration?

In regards to maximising the potential for success with such an application, are there any yips anyone might have? Should I try and get letters of support/character reference from people in the community? That might help demonstrate regard in which I am held, and an ability to integrate? Any other golden unwritten rules?

I realise such an application will take a long time to process, and that I will be unable to work during this time. I am not seeing that we have too many options - if I go to NZ and try to make an application from there (knowing that we do not meet the financial requirement) and that application is unsuccessful, I will be stuck on the other side of the world from my family. I could not bear that.

(shazi uk - as wanderer stated, UKVI cannot deport a UK citizen. But if they deport a parent, then what...the partner and child just stay and the family gets split up? No - in our case my family would be 'forced' to leave for us to stay together as a family unit. But that would be viewed as 'our decision' and not a deportation.)

[Tamandua]

In regards to our child 'being able to adapt to life outside the UK' - do you know on what basis does a Case Worker makes an assumption that we have an option to go to another country?

They will make an assumption based on the fact that you are an NZ citizen; hence, your spouse can relocate to NZ with you. It's a very cynical argument because you can't live in the UK just because you are married to a UK citizen, but that's how the UK overrides the European convention on human rights [art 8].

My experience: we have our immigration rules as well including financial requirements which I'm unable to meet as I was a student in the UK with no permission to work anymore. I even mentioned that in my application to remain in the UK as a spouse, but the HO claimed that my parents could help us with money and accommodation or alternatively we could communicate via email/Skype. Also, because my husband lived in Spain, the HO pointed out we could relocate to Spain under EEA regulations.

While my application was being processed I was asked to sign in at a reporting centre. On one routine visit, I was informed that my application was unsuccessful. They printed out the refusal letter and took me to a detention centre where I met parents of British kids and spouses of UK citizens. The majority of them had their human rights claim certified as 'clearly unfounded' because they applied as visitors or because their spouses didn't meet the minimum income threshold upheld by the Supreme Court.

Based on my experience, I'd say, the best option for you is to wait until your partner meets the financial criteria and then apply for an entry clearance from NZ.

Should I try and get letters of support/character reference from people in the community? That might help demonstrate regard in which I am held, and an ability to integrate? Any other golden unwritten rules?

I don't think that will work. In my case, the HO even mentioned that I have no criminal records and that I fully complied with the terms of my student visa, but 'good character' is not a reason for me to remain in the UK.

[borderbob]

Thanks so much for your reply, Tamandua.

That sounds horrific! Are you saying they basically arrested you on one of your routine visits to the reporting centre? And then what - held you there at the detention centre until you were deported? Your husband was in Spain but is a British citizen?

In our case we have no family support whatsoever. We have no family here, and back in our respective countries of origin (New Zealand for myself, Argentina for my partner, although she is a UK citizen) we have some family but they are not financially secure in any sense. We don't have the EEA country option.

So they would essentially be saying that forcing us to relocate to another country where we have no 'ties' and just assuming that 2 of us 3 could successfully obtain visas for that country is a more appropriate course than allowing us to stay??

It seems that being a citizen of the UK does not afford you much protection or freedom in your own country!

[CR001]

It seems that being a citizen of the UK does not afford you much protection or freedom in your own country!

Not quite true. A British citizen has freedom, immigrants do not if they are not on the correct visa. Years of abuse of spouses arriving on visitor visas and then claiming right to family life/human rights to remain etc to circumvent the stricter spouse visa rules and the income threshold etc has forced HO to clamp down on this. There are many who come to the UK and fail in their attempts to stay with their spouses even with British children. HO's view is that you can return and apply from your home country in the normal way like most applicants and as NZ is not a high risk country.

Presumably your daughter is a dual national (UK/NZ).

[borderbob]

Hi CR001. I realised after posting that that was not a particularly constructive post! I guess I understand there is widespread abuse of this sort of angle to apply to stay. But I would counter that by saying that if the requirements were not so severe people would not seek a work around.

No my daughter is not a dual national. I was not born in NZ therefore she does not have automatic citizenship by descent. She is a UK citizen only.

How can I return to NZ to apply, if I already know I don't meet the requirements? That would simply have me on the other side of the world from my family, with no visa. Or would HO suggest that I apply from NZ but seeking exemption to the Rules because I don't meet the requirements? Is that even possible? If I am seeking exemption from the Immigration Rules for special circumstances, then that is the same as what I am proposing to do from here in the UK.

What happens if I am unsuccessful in my FLR(FP) application seeking exception to the rules under Article 8? Does HO keep my passport and give me a period of time to leave (as I had thought) or is it as Tamandua says, and they take you to detention and deport you straight away?

I apologise for so many questions - I do very much appreciate the information and views you guys are providing.

[Tamandua]

Are you saying they basically arrested you on one of your routine visits to the reporting centre? And then what - held you there at the detention centre until you were deported? Your husband was in Spain but is a British citizen?

Yes, I was detained at the reporting centre and then taken to a removal centre. I had to hire a lawyer who applied for bail and lodged an appeal on my behalf. The judge released me on the basis that I am married to a UK citizen, but I still have to report until I get a permission to remain in the UK as a spouse.

My husband had residence in Spain and in the UK as well because he works for a UK company with many offices registered abroad. He obviously spent a great deal of time working in the UK, but the HO wants the UK citizen in the UK full-time. The more countries involved, the greater your chances of having your application refused. You are an NZ citizen, but you weren't born there. Your partner is from Argentina...

Anyway, if you submit an FLR(FP) application, you will receive a letter from the HO at some point in which they will ask you to report at the nearest reporting centre or a police station as this type of application takes about 10 months to be processed.

What happens if I am unsuccessful in my FLR(FP) application seeking exception to the rules under Article 8? Does HO keep my passport and give me a period of time to leave (as I had thought) or is it as Tamandua says, and they take you to detention and deport you straight away?

They will detain you if they certify your claim as 'clearly unfounded'. Unfortunately, that happens to everybody who applies as a visitor even when there are children involved. An officer will speak to you at the removal centre and give you the option to leave the country voluntarily. They will remove you if you refuse to leave.

For reference, look for Irene Clennell case, a spouse of a UK citizen who had her claim certified as clearly unfounded because she applied as a visitor.