Wife overstayed previous visa, illegal child benefit claim

[july13]

I am a British citizen through naturalisation.
My wife lives in a country outside the EU and is applying to join me in the UK permanently.
I would like to know how the following background will affect her application.

BACKGROUND
My then girlfriend overstayed her visa 5 years ago.
She left the UK voluntarily in 2011, over 3 years ago.
I went to her country last month to marry her. My third visit.

Whilst living in the UK, she gave birth and she claimed child benefit in her name.
She was not qualified to claim child benefit.
She didn't pay for NHS delivery of the baby.
I was then an international student.
Child was not a UK national at birth.

I became a British citizen 2 years ago.
The child is now a British citizen living with my wife in her country.
I meet the maintenance requirements.

QUESTIONS
1. How will her overstay and child benefits claim affect her application?
2. About accommodation: must it be ready at the time of application or should I, the sponsor, show potential to be able to accommodate them? At the moment, I live in a 2-bedroom house with a landlady.

Thank you.

[MPH80]

How did the child become a british citizen?

The overstay won't, in itself, cause any problems on a spouse application as it might for other application types. BUT the combination of an outstanding NHS bill, fraudulent benefits claims etc may, if found, invoke a 320(11) catch-all type refusal.

If that happens the only way around it is an appeal.

And on question 2 - You'll need to show evidence of the accommodation when you apply - you can't say 'I could get a bigger place'.

[Casa]

This is from the Modernised Guidance for Immigration staff: General Grounds for Refusal:
''When an applicant has previously breached the Immigration Rules and/or received
services or support to which they were not entitled you must consider refusing the
application. When these circumstances are also aggravated by other actions with
the intention to deliberately frustrate the rules, you must refuse entry clearance
under paragraph 320(11).
This means when an applicant has done one or more of the following:
 been an illegal entrant
 overstayed
 breached a condition attached to their leave
 used deception in a previous application
 obtaining:
o asylum benefits
o state benefits
o housing benefits
o tax credits
o employment
o goods or services
o National health service (NHS) care using an assumed identity or multiple
identities or to which not entitled. "
and there are aggravating circumstances such as:
 absconding
 not meeting temporary admission/reporting restrictions or bail conditions
 failing to meet the terms of removal directions after port refusal of leave to
enter or illegal entry
 previous working in breach on visitor conditions within short time of arrival in
UK (indicating a deliberate intention to work)
 receiving benefits, goods or services when not entitled
 using an assumed identity or multiple identities
 getting NHS care to which they are not entitled
 attempting to prevent removal from the UK, arrest or detention by Home
Office or police
 escaping from Home Office detention
 switching nationality
 troublesome or frivolous applications
 not meeting the terms of the re-documentation process
 taking part in a sham marriage or marriage of convenience
 harbouring an immigration offender, and/or
 people smuggling or helping in people smuggling.

I've highlighted the points which appear to apply to your situation. Regarding suitable accommodation, this would have to be available on your wife's arrival and evidence of this submitted with the application.

[Amber]

What Country is your spouse native?

[july13]

How did the child become a british citizen?

Child was born in the UK and one of the parents (that's me) became a British citizen. As a result, the child was entitled to register as a British citizen.

BUT the combination of an outstanding NHS bill, fraudulent benefits claims etc may, if found, invoke a 320(11) catch-all type refusal. If that happens the only way around it is an appeal.

I should have been clearer. There is no outstanding NHS bill. I am assuming that since she gave birth at a time she had overstayed her visa, she wasn't entitled to receive free NHS services for the delivery of the baby. She was entitled to free NHS services when her visa had not expired and was registered with the NHS. I, the father, was always entitled to free NHS services.

Sadly, 320(11) makes overstaying a normal ground for refusal.

320
320(11) comes under "Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused"

This appears different from "Grounds on which entry clearance or leave to enter the United Kingdom is to be refused"

Does the word "normally" means there are exceptions?

Thanks.

Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused
...
(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:
(i) overstaying; or
(ii) breaching a condition attached to his leave; or
(iii) being an illegal entrant; or
(iv) using deception in an application for entry clearance, leave to enter or remain or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not); and
there are other aggravating circumstances, such as absconding, not meeting temporary admission/reporting restrictions or bail conditions, using an assumed identity or multiple identities, switching nationality, making frivolous applications or not complying with the re-documentation process."

[Casa]

If you weren't married to your wife at the time of your child's birth your girlfriend (at that time) would have been responsible for the NHS hospital costs. There was a thread running on this forum with exactly that problem and the NHS authorities wouldn't budge on the technicality of the baby being born to a British father (which you weren't) where the (unmarried, overstayer) mother had no rights to Public Funds.
If I'm unable to find the thread, Amber may have more luck...she's far more technically adept that I am.
The additional problem of course is the claiming of Child Benefit to which your wife wasn't entitled to.

[Amber]

See also, why do I have to pay for my baby's NHS treatment? (Click)

The OP has still not stated what Country his spouse is native.

[Casa]

Thanks Amber x

[july13]

See also, why do I have to pay for my baby's NHS treatment? (Click)

The OP has still not stated what Country his spouse is native.

She is Nigerian.

[lush]

july13

was your wife granted the visa?

Im kinda in the same shoes.