Denied leave to remain today, some questions

[KelBo]

My case is pretty cut and dry and I think I already know the answer but I'm looking for some advice here.

My wife and son (3 years old) are both British citizens. We came here early last year (2006) from the US with me on a visit visa on her father's (born and lived here all of his life) advice. Turns out this was bad advice but we can't do anything about that now.

Due to (excuse, excuse, excuse, mostly financial) we did not apply for my right to stay here until early in 2007, much longer than my permitted stay given my visa. Reassurances that all would be just fine from that same misguided father also kept us from doing the lawful and correct thing.

At any rate, I just received a response today that my application was denied.

I understand that I must leave the country and apply for a right to stay from my country of origin (the USA).

What are my chances of not having to do this. Our appeal rests on a few simple facts:

• My wife has a job that will cost roughly £10,000 for her to leave (she is on a 3 year contract).
  
  We've (she) made an offer on a house that has been accepted.
  
  My son hasn't spent a single day away from me since he was born (I've been a self-sufficient stay at home dad for his 3 years) though he is now in nursery for 3 days a week.
  
  I've been retired for five years and am an as of yet unpublished writer, that is likely irrelevant.

We are considering our avenues of appeal. Right now the most promising one we can come up with is the incredible hardship that my wife and son will have to go through if I have to spend (3 months to a year?!) away from them. Our finances (addition nursery costs) and his emotional well-being are both at stake here.

The Human Rights Act states that we are entitled to a stable family life, my wife's inability to leave her job and my son and my bond are both at odds with me leaving the country.

Do you think we have a case here? As I read it England is more interested in enforcing the letter of the law (I get deported and try to get back in) and less interested in the spirit of the law (the well being of those who the law is made to protect) but I'd like advice on what to do.

I'll be happy to answer any questions you might have.

[Wanderer]

In my opinion you're gonna have to go home and apply from there, there's no reason you'll be refused based on what you've said. You'll most likely be back in a matter of days...

Human Rights? None infringed, you can all live in the USA and be together. That's the HO view......

[KelBo]

Thanks for the speedy reply. The "Human Rights" thing (sorry to not be more specific) that I made mention of was something that my denial documentation repeated over and over saying that the government saw that by removing me from the country they were not in breach of Article 8...yadda yadda, see below. Personally I'd never say my "human rights" were impinged, lol.

Article 8 here:

http://www.hri.org/docs/ECHR50.html

Simply states that I have the right to an undisrupted family life.

Indeed, us all happily in the USA is probably what they saw as the alternative.

Cheers.

[yankeegirl]

Have a look at the application for the spousal visa and the guidance notes.
http://www.ukvisas.gov.uk/servlet/Front ... 8721067257

Your wife does not have to return to the US with you, and it can be cleared up in a couple of weeks. Gather up all of the supporting documentation before you leave and bring it with you to submit with the application. The application can be made at the consulates in New York, Chicago and Los Angeles. You can apply in person or by post. One thing you have going for you is that you are applying in the United States, average visa application turnaround times is 1-2 weeks. Some other countries have an average time of 3 months! They cannot refuse you soley based on the fact that you overstayed; so take care to ensure that your application is very thorough. I'm also sending you a pm

[KelBo]

Thank you, this is all very encouraging. I could probably use the break--anyone with a child of their own will understand--though it will break my heart to have to leave for even this short amount of time.

From what I've read up here, not just in my topic, I think we're just going to skip the appeal. I must say that I spend too much time reading various forums online but few have been as helpful as this one.

There be good peeps up here!

[olisun]

Thank you, this is all very encouraging. I could probably use the break--anyone with a child of their own will understand--though it will break my heart to have to leave for even this short amount of time.

Yes but at the same time also look at the long term gain, you will be able to spent the rest of your life with your child without having to worry about any immigration issues.

[VictoriaS]

Answered on another board!


Victoria

[KelBo]

Answered on another board!


Victoria

Indeed and thank you so much! Everyone has been so helpful.

[avjones]

"The Human Rights Act states that we are entitled to a stable family life, my wife's inability to leave her job and my son and my bond are both at odds with me leaving the country."


No, it doesn't state that. Article 8 states that you have the right to a private and family life, specifically:

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

You will note in that the right you have is to respect for your private and family life, it's not a guarantee.

Immigration control comes FIRMLY within Article 8(2), I'm afraid.

[KelBo]

"The Human Rights Act states that we are entitled to a stable family life, my wife's inability to leave her job and my son and my bond are both at odds with me leaving the country."


No, it doesn't state that. Article 8 states that you have the right to a private and family life, specifically:

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

You will note in that the right you have is to respect for your private and family life, it's not a guarantee.

Immigration control comes FIRMLY within Article 8(2), I'm afraid.

Thanks for that clarification, it didn't take long for me to figure that out but I appreciate you taking the time to respond. I'm sure you must be pretty busy these days.

[avjones]

It will be an awful lot quicker, easier and cheaper to go back to the USA to apply. Could you not take your son with you?

[KelBo]

It will be an awful lot quicker, easier and cheaper to go back to the USA to apply. Could you not take your son with you?

He is on a British passport however he was born in America and thus needs an American passport to get in (legally). With me on an American passport and him on a British one I think that would cause problems anyway. On top of that DW doesn't seem to cool with the idea. Honestly, as hard as it will be for me, I could use the break, first one in 3 years.

Cheaper? This is killing the deal we had already signed on to buy a house. I don't want to hear about "cheaper" to be honest with you, it's going to take everything we have worked so hard for. I realize that it's my own damn fault but honestly, it's more of a pain than you can imagine. 'Tis okay, I'm not bitter, it's a lesson learned, something like this would not happen in America but dangit if American's aren't bloody spoiled, lol.

[John]

You have already wasted a lot of time and money foolishly applying for a spouse visa in the UK. Go back to the States, apply for a 2-year spouse visa there, and based upon the speed of dealing with applications in the States you could well be back in the UK within a month .... with a shiny new 2-year spouse visa in your passport.

The UK introduced a no-switching rule, stopping someone switching in the UK from being a visitor to being a spouse, as long back as 01.04.03. Go back to your country and apply there.

[KelBo]

You have already wasted a lot of time and money foolishly applying for a spouse visa in the UK. Go back to the States, apply for a 2-year spouse visa there, and based upon the speed of dealing with applications in the States you could well be back in the UK within a month .... with a shiny new 2-year spouse visa in your passport.

The UK introduced a no-switching rule, stopping someone switching in the UK from being a visitor to being a spouse, as long back as 01.04.03. Go back to your country and apply there.

I suppose I can be equally harsh (and I'm not absolving myself of fault here). I hear of this happening a lot and thus it is hardly foolish, ignorant perhaps but not foolish. What is foolish is the HO taking six months and £500 to tell me this when all it would have taken would have been a glance at my passport and my application. I even met in person with an HO immigration official and they said I was on the right path after looking over my paperwork. It's a phenomenal waste of time and money (again, I'm not blaming anyone but myself) and your repetition of what has already been said is hardly a necessary response. Breaking up a family that was a family long before arriving in the UK is NOT a reasonable solution and I'm willing to accept that the only reasonable solution is to do it right from the start

[avjones]

The British immigration spouse visa system is generally clearer and quicker than most - certainly than America's, to be honest.

Your family won't be split up, you'll just be away a short time.

[John]

But if you had applied for a spouse visa before you all travelled to the UK none of this would have happened. And there would have been no chance of you being separated from your family, even for less than one month.

Why did the Government introduce that no-switching rule back in 2003? Simply because it got fed up with the numbers trying to go down that route. Prior to that rule being introduced over 50% of new spouse visas were being issued in the UK. Now the percentage is negligible ..... those able to show genuine and exceptional reasons why they cannot possibly travel to their country and apply there.

Put together an good "evidence folder" ensuring the it is clear that all the tests have been passed should ensure that you do not get a rejection when you apply in your country.

[KelBo]

But if you had applied for a spouse visa before you all travelled to the UK none of this would have happened. And there would have been no chance of you being separated from your family, even for less than one month.

Why did the Government introduce that no-switching rule back in 2003? Simply because it got fed up with the numbers trying to go down that route. Prior to that rule being introduced over 50% of new spouse visas were being issued in the UK. Now the percentage is negligible ..... those able to show genuine and exceptional reasons why they cannot possibly travel to their country and apply there.

Put together an good "evidence folder" ensuring the it is clear that all the tests have been passed should ensure that you do not get a rejection when you apply in your country.

And in the end it is the numbers that win. Go numbers! <_< >_>

[sakura]

To add two things, kelbo.

In the US, if someone overstays for a certain number of years, they are barred re-entry for something like 5 or 10 years from ever returning to the US. The UK doesn't have such a system, and overstaying does not mean automatic refusal or any such thing.

The second thing - the success rate for applications from the US is one of the highest in the world. You would only be refused if you don't provide any evidence. Other than that, as John mentioned, you could be back within a month.

As for your family....you should never listen to anyone about immigration rules - always read about it yourself! I mean, a simple glance over the Internet would have made all the difference. Since there is nothing keeping you from returning (e.g. no civil war in the U.S., no physical or mental disabilities), the only way you can sort this out is to return. Take your son with you - flying into the US with a UK citizen child and a U.S. citizen dad is no big deal at all. Of course he would be legal - he's entering as a visitor and is allowed to enter the US for I think three months max. He'd need a return ticket.

I'm sure you have family over there who would be happy to see him. But crying over it will just drag things on...you could sort this out by Christmas and enjoy the season much better knowing your immigration status is sorted out.

I know my comments are a bit old, but still!

[sakura]

Why not apply for your son's U.S. passport whilst you're there? Of course, dual nationality is not a problem for both the U.S. and UK so do it asap!

[KelBo]

Why not apply for your son's U.S. passport whilst you're there? Of course, dual nationality is not a problem for both the U.S. and UK so do it asap!

Indeed though I believe it will be easier to do it here in the London office since the Passport situation in the US right now is nothing short of chaos. I do know that I should have done the research rather than relying on word of mouth and I accept that this is our responsibility. No problem there, I sucked it up within 12 hours of receiving the refusal, that's not bad from some of the other accounts I've read since becoming hyper aware of this stuff.

I was in the computer industry for 14 years completely self-taught and quite successful. I've been a stay-at-home father for the past 3 years and before that a proprietor of my own bookstore. I admit that I've been allowed to get a bit lazy on some fronts--certainly not laundry, dishes, and the raising of my boy--as DW handled all the paperwork, bills, etc. Many things have happened as a result of this, not all of them good, but I'm finally getting back on my own feet again. This even just proves beyond a doubt my need to do so.

I know this will be a painless and quick process, I'm actually looking forward to the trip. No worries on the visa front at all as DW keeps excellent files, our paperwork is impeccable.

I do appreciate the advice I'm getting from these and other boards as well, thanks.

[JAJ]

Indeed though I believe it will be easier to do it here in the London office since the Passport situation in the US right now is nothing short of chaos.
.

On top of that, he needs a Consular Report of Birth Abroad, which is issued by the Embassy in London, in order to get a U.S. passport.

Bear in mind that he is most likely a U.S. citizen already and as a result he must enter and leave the United States on an American passport.