overstayer returning for holiday.. what are the chances..

[megmog]

Hey guys,

so I have been thinking about this for some time now (am a regular on this forum) but cant work out where to get a definitive answer.. any advice/direction would be great..

My husband is South African, I am British. We lived together in the UK for 2 years before leaving for South Africa in May 2006.. By this point my husband had overstayed his holiday visa by 1 year. We were not married at that time - we married in South Africa in November 2006.
He was not deported, we left of our own accord, but we were understandably berated by immigration at heathrow upon leaving for his overstaying. They did not make a cross in his passport (as has been asked previously) but they did make some notes in the passport and system (and they are on the system as we had a battle getting him into ireland)

In Jan of this year, we moved to Ireland. It is a long story, but the Irish respect for EU immigration law is pretty much non existent and instead of my husband getting a residence permit (as is standard procedure in most eu countries providing the EU spouse is working) we waited 9 months for him to get a "stamp 3". This is valid for 1 year and can be renewed. He is allowed to live in and re-enter ireland as long as his stamp is in date but he is not allowed to work. I support both of us so that is not a problem. His stamp 3 is due for renewal in september 2008.

Now, here comes the issue...

We are really desperate to spend christmas in England with my family and from what I understand, england and Ireland have some sort of travel agreement which means we may be able to go under the radar BUT this is not my desire... we do not wish to jeopardise our prospects of returning to England in future. We would be flying from Kerry to Luton Airport and returning the same way.

If anyone knows a) whether my husband is allowed back to england for a period of 7-10 days - as a tourist, with me.
b) is there any way of "applying" for an official way of going for a holiday (the problem being south africa is not a visa-required country for a stay of less than 3 months so i dont know what to apply for?!)

basically, I am totally confused and if anyone can shed any light on anything it would be much appreciated!

[Wanderer]

I thought the CTA was being abolished?

[megmog]

I believe it will be eventually, but it is still in place currently.

[Dawie]

As your husband was never subject to a deportation order and therefore is not banned from the UK, there is absolutely no problem with him entering the UK from the Republic of Ireland.

As you have pointed out there is no immigration control between the UK and Ireland and your husband will not be breaking any rules or regulations by entering the UK.

[Mr Rusty]

South Africans not require a visa to enter the UK as a visitor.
Under the legislation relating to the Common Travel Area, persons who have entered the Irish Republic legally and travel to the UK are "deemed to have leave to enter" as a visitor for up to 3 months. Visa nationals would still require a visa to do so.
Travellers arriving from the Republic are not normally seen by an Immigration Officer, and are not required to present themselves to one. To avoid any suspicion of overstaying or illegal entry, any such visitor would be advised to retain proof of their legal entry to Ireland and date of arrival in the UK.

Merry Christmas

[megmog]

thanks.. I have emailed the embassy to ask but they are pretty useless most of the time..

My main concern is my husband getting a "denied entry" in his passport/immigration history..

the whole thing is just a head ache...

When we were first trying to get into Ireland (which is a whole other story) they made him promise not to try and go to england because of his immigration history and eventually let him in.. But now that he has a stamp 3 I figure it is ok as he is all legal and above board...?

[Rena]

Could anybody pls let me know that if any control over departure at Heathrow Airport? Bcos, I have never met any i/o officers when leaving the country to check my passport entries.

[Rena]

Could anybody pls let me know that if any control over departure at Heathrow Airport? Bcos, I have never met any i/o officers when leaving U.K to check my passport entries or make notes regarding overstay.

[megmog]

hi rena.. i can say for sure they do have departure control as that is how my husband (and a whole queue of people behind him) were caught overstaying...

It may not be everyday but they do have it (at least when I am there!)

[Dawie]

Megmog, this linkfrom the Home Office website clearly describes how entry to the UK from the Republic works.

PERSONS WHO REQUIRE LEAVE TO ENTER THE UNITED KINGDOM FROM WITHIN THE COMMON TRAVEL AREA
2.1. Section 9(4) of the Immigration Act 1971
2.2. Persons who are subject of a deportation order under Section 9(4) of the Act
2.3. Persons without leave who have previously been refused leave to enter
2.4. Exclusion conducive to the public good on national security grounds
2.5. Refusal wording and removal directions
2.6. Ability to remove persons who fall within the scope of Section 9(4)(a) but who are identified within the United Kingdom after arrival

Whether or not your husband falls within the definition of 2.3 is the issue.

[megmog]

amanda/victoria... do you know if my husband would fall within 2.3?
We have not applied for leave to enter since we left of our own accord as we are now settled in Ireland..

[VictoriaS]

Whether or not he gets refused is going to be at the discretion of immigration. If you find immigration. And you can't really apply for a visit visa because if he is only in Ireland as a 'visitor' then the British Embassy probably wouldn't accept his application.

Catch 22. John? Any thoughts?

Victoria

[Dawie]

Victoria, I think what Megmog means is does the fact that her husband was caught at an airport leaving the UK as an overstayer constitute refusal of leave to remain as defined in point 2.3 of the above guidance?

[VictoriaS]

Strictly speaking, no, and I agree with you that he does not need entry clearance. But they do still have the right to refuse him if they want to.

Victoria

[megmog]

thanks for responding victoria/dawie...

The british embassy came back to me and said (as suspected) that they cant really issue him a visa as he is not a visa required national. If he had been deported then we could apply but since he wasnt then they can't really.. there just wouldnt be a basis for it. They gave me the contact info for the immigration office at Luton airport and I called them this afternoon.. They were shockingly helpful and sympathetic to our situation. The Immigration Officer took all of our details and then called me back to say she had checked his immigration records and conferred with her colleagues and they all agreed there was no issue..

Aside from the fact that she is 99% sure he wont be stopped due to the CTA, even if he was - as long as we bring a copy of our marriage cert and a utility bill in both our names to show our address in ireland then there wont be a problem. As we are legally resident in another EU country and he is not visa-required, there is really not alot they could do to stop us from entering UNLESS he was a terrorist/murderer or if he was deported.

But she doesnt think it will even come to that, and if he enters without encountering an immigration officer then he is not doing anything illegal and most importantly, if he is stopped and questioned, it wouldn't be recorded/and/or hinder any future visa applications..

So in this situation, I think we are very fortunate and I am looking forward to seeing my family for Xmas! Will let you know if it all runs smoothly...

[VictoriaS]

Immigration officers at port of entry are nearly always helpful. Really glad this has (hopefully!) worked out!

Victoria