Overstayer and getting married discretionary leave to remain

[SKJH1]

Hello Im a british citizen I have been in a relationship with someone for a few years now his university closed down during the time we were in a relationship and his visa was not renewed because it was a student visa I am now pregnant with his child we had done a marriage ceremony however it was only a religious ceremony but i did not realised that because his visa was not renewed it may be difficult to register for a marriage to legalise everything as he is now considered an overstayer

my main question is can we still go to a marriage registrar and do our marriage and also how do i go about applying for his discretionary leave to remain as im new to all this

[Casa]

You will only be able to register your intent to marry with a Home Office designated Registry Office. The Registrar is then legally bound to notify the HO who can then extend the notification period from 28 to 70 days in order to interview you both separately before the wedding can take place.
There is an obvious risk that as an overstayer, your partner will be detained at the interview.
Discretionary leave depends on the strength of his claim to remain here. A baby doesn't necessarily mean a DL application will be successful.

[SKJH1]

what things are taken into consideration when looking at the strength of a claim?

[Casa]

Partly why you couldn't continue family life in his home country. If you are earning £18,600 per annum, it would be wise for him to return home, marry there and then apply for a spouse settlement visa, Or return home and apply for a fiance visa to marry on his return to the UK within 6 months.

[SKJH1]

I was born in uk and have no family ties in his home country plus i work here and my immediate family reside here im well settled but the only problem is im not earning over the threshold for spousal visa as im on maternity leave at the moment

[Obie]

It may be safe to put a pause on marriage until the baby is born.

There is a risk he could be removed if he goes for an interview .

It may well be the case, that your relationship and cohabitation have clocked 2 years by the time the baby is born.

Good luck.

[SKJH1]

ok it has been 2 years now that we've been together

[Casa]

Do you have any joint bills/correspondence etc as proof that you've been living together during the 2 year period?

[SKJH1]

I have only bank statements from the same address and he has some letters at that address also

[SKJH1]

Do you have any joint bills/correspondence etc as proof that you've been living together during the 2 year period?

bank statements at the same address

[Frontier Mole]

It will be a long long up hill climb from the circumstances you have posted.
DL is not the way forward for him, it will be refused because there is a legitimate option under the spouse / partner visa for him to potentially legitimise his stay.
If you are unable to meet the spouse / partner criteria then aiming at DL as a method to circumnavigate that is destined to fail.
This is doubly so if he currently is an overstayer.

[SKJH1]

I went to a solicitor with him and was told that they will require a dna test on the child is the solicitor right in saying this?

[Casa]

I went to a solicitor with him and was told that they will require a dna test on the child is the solicitor right in saying this?

Yes, this may well be required.

[SKJH1]

Is there any chance I can do a spousal visa application from the uk or does he have to go back rather than doing a discretionary leave application

[Casa]

If you're submitting an application for a spouse settlement visa within the Rules, he will have to apply from his home country. However, you've said previously that you aren't able to show annual income of £18,600. Is that still the case?

If you're applying as unmarried partners with only bank statements to show 24 months of co-habitation, it would be wise for your partner to take a DNA test from an approved HO test provider in order to prove paternity of the child you have together.

[SKJH1]

I will be returning to work soon and will be able to earn enough income for a spousal visa application. Does a paternity test make my case stronger?

[Casa]

It proves that your partner is your child's father which strengthens your proof for a genuine relationship (in the absence of documents in joint names) but it doesn't guarantee a successful DLR application.

You will need 6 months of payslips + 6 months of corresponding bank statements to prove the £18,600 minimum annual income.

Bear in mind that a Spouse Settlement visa within the Immigration Rules can only be submitted outside of the UK.

Frontier Mole has given very relevant advice.

[SKJH1]

Would we need to provide the Dna test or would the people doing my application request I do one?

[Casa]

Would we need to provide the Dna test or would the people doing my application request I do one?

Who do you mean by 'the people doing my application'?

You would wait for the Home Office to request a DNA test (if one is required).

[SKJH1]

The solicitors as I will be doing an application through them and they has said I would need to provide a Dna test. Once application has gone through can I apply to do a court marriage?

[Casa]

You should ask your solicitor.

IMHO there's no guarantee that your partner won't be detained at the pre-wedding interview or as in one case on the forum, on the day of the wedding despite being given HO permission to marry.

[SKJH1]

Can a discretionary leave application done by ourselves rather than a solicitor be possible? Or is it more wise to do the application through the solicitor as he keeps giving me different advice each time I see him that conflicts with previous things he has said

[CR001]

It will be a long long up hill climb from the circumstances you have posted.
DL is not the way forward for him, it will be refused because there is a legitimate option under the spouse / partner visa for him to potentially legitimise his stay.
If you are unable to meet the spouse / partner criteria then aiming at DL as a method to circumnavigate that is destined to fail.
This is doubly so if he currently is an overstayer.

Strongly suggest you heed FrontierMoles advice.

On what basis does your partner think he qualifies for DL?

If you are not married, he stands very little chance. Even with the baby, there is no guarantee.

[ouflak1]

Would he be able and willing to go back to his home country and apply for the more succinct spouse application from there? What are his thoughts on this?

[SKJH1]

hes actually scared to go back as he has said he does not want to be away from me during the birth and upbringing of our child and does not want me to struggle alone to bring him back thats why we are looking at any option we have from here