UK Spouse visa refused; appeal fail; now overstayed - want to return on VISITOR visa

[OMY123]

Hello,

I'm and Australian spouse of 8 years to UK Citizen.

My UK spouse VISA expired in 2017 which wasn't a problem as we were travelling abroad for 18 months and didn't think/know we would return.

Returned together in June 2018, I on visitor visa.

Mistakenly applied in-country for a spouse VISA November 2018 which was refused on several grounds 1)Income; 2) prior 24 months cohabitation not evidenced 3)in-country application.

Refusal was 'certified' in December 2018 just before Christmas - meaning I was (still am) on immigration bail.

Saw lawyer at first chance after Christmas and holiday shut-down (Jan 7). He suggested an appeal of the 'certification' - to buy time, show intention, and continue cohabitation which was particularly important as I am estranged from family in Australia, home is with my partner.

The appeal was refused.

My partner is now 1 month into the 6 month employment pre-requisite and we will meet all other previously unmet requirements.

Lawyer suggested the following 1) leave for a month or so and attempt return on visitor VISA, 2) over stay until time for departure to Australia ahead of Spouse VISA application

For option 1 - what is the likelihood that I will receive a visitor visa? Is this viable? The Lawyer said customs would question me and the experience possible long and unpleasant, however because I am an Australian national, would likely allow entry, but possibly with condition. If I have a return ticket to Australia for two months time, will that be ok?

The option to overstay seems ill-advised to me? Anyone else? Surely that will reflect badly on application in August/ Sept for Spouse VISA?

For us the overstay would be personal and financially better because we would remain together and not split costs, I haven't been working now for nearly a year.

thanks for your help

[Casa]

Hello,

I'm and Australian spouse of 8 years to UK Citizen.

My UK spouse VISA expired in 2017 which wasn't a problem as we were travelling abroad for 18 months and didn't think/know we would return.

Returned together in June 2018, I on visitor visa.

Mistakenly applied in-country for a spouse VISA November 2018 which was refused on several grounds 1)Income; 2) prior 24 months cohabitation not evidenced 3)in-country application.

Refusal was 'certified' in December 2018 just before Christmas - meaning I was (still am) on immigration bail.

Saw lawyer at first chance after Christmas and holiday shut-down (Jan 7). He suggested an appeal of the 'certification' - to buy time, show intention, and continue cohabitation which was particularly important as I am estranged from family in Australia, home is with my partner.

The appeal was refused.

My partner is now 1 month into the 6 month employment pre-requisite and we will meet all other previously unmet requirements.

Lawyer suggested the following 1) leave for a month or so and attempt return on visitor VISA, 2) over stay until time for departure to Australia ahead of Spouse VISA application

For option 1 - what is the likelihood that I will receive a visitor visa? Is this viable? The Lawyer said customs would question me and the experience possible long and unpleasant, however because I am an Australian national, would likely allow entry, but possibly with condition. If I have a return ticket to Australia for two months time, will that be ok? Even if you were allowed to enter the UK (which is extremely unlikely in the circumstances), what would this achieve? You wouldn't be able to submit an in-country application for a Spouse visa while in the UK as a visitor, which you are already aware.

The option to overstay seems ill-advised to me? Anyone else? Surely that will reflect badly on application in August/ Sept for Spouse VISA? Never wise to overstay, especially having been on immigration bail following a certified refusal. Your spouse visa application may not be refused, but it could well complicate and delay a decision.

For us the overstay would be personal and financially better because we would remain together and not split costs, I haven't been working now for nearly a year.

thanks for your help

[Frontier Mole]

If you try the non visa nation visit visa route it will be refused at the point of entry for a number of reasons.
You have already stayed in the UK for more than 6 months in the last 12 so that in itself gets you a refusal.
The fact you overstayed the previous entry that gets you a refusal
Intent - it is clear from your failed spouse visa application that you intend to remain in the UK and you are therefore not a genuine visitor- refusal

So option 1 is a complete nonsense and if your lawyer suggested this they need to be struck off because that advice is beyond negligent,

Option 2 - you get to stay longer but expect at a reporting point in the future to find yourself heading for detention and a flight home. Appeals etc to keep you here - yip they can do that, huge cost and great stress,

Givem your immigration history you really have one choice - return home, wait for your spouse to meet the financial criteria then apply. I know it is not what you want to do and you will be apart etc but there is no other viable route to settlement.

[Casa]

Further to Frontier Mole's sage advice, if you consider the amount of money you surely must have paid so far on visa, Court and legal fees (for poor advice), returning home and applying for a Spouse visa in the correct way, may well save you from losing more money on a lost cause.

[OMY123]

Further to Frontier Mole's sage advice, if you consider the amount of money you surely must have paid so far on visa, Court and legal fees (for poor advice), returning home and applying for a Spouse visa in the correct way, may well save you from losing more money on a lost cause.

Thank you very much.

[OMY123]

If you try the non visa nation visit visa route it will be refused at the point of entry for a number of reasons.
You have already stayed in the UK for more than 6 months in the last 12 so that in itself gets you a refusal.
The fact you overstayed the previous entry that gets you a refusal
Intent - it is clear from your failed spouse visa application that you intend to remain in the UK and you are therefore not a genuine visitor- refusal

So option 1 is a complete nonsense and if your lawyer suggested this they need to be struck off because that advice is beyond negligent,

Option 2 - you get to stay longer but expect at a reporting point in the future to find yourself heading for detention and a flight home. Appeals etc to keep you here - yip they can do that, huge cost and great stress,

Givem your immigration history you really have one choice - return home, wait for your spouse to meet the financial criteria then apply. I know it is not what you want to do and you will be apart etc but there is no other viable route to settlement.

Appreciate your time on this. I am shocked that this is the advice we've been given. We were recommended to this Legal firm - not the specific solicitor however... We trusted that this is advice is would be sound, effective.

Do we need legal support / advice for the Spouse VISA application? later on in the year?

[OMY123]

How urgently do I no need to leave the country?

My 90 days from original verdict expires tomorrow.

Can I leave in two weeks after getting my affairs in order? Or must I leave immediately?

Thank you.

[Frontier Mole]

Are you reporting to the Home Office?

If not - then no one is “hunting” you down at the moment and another two weeks overstay is not going to make a difference. It will not impact your future application anymore than your current overstay period. I hope your lawyer ( at least) pointed out that your Spouse application will not be refused just because of your overstay?

If you are reporting to the Home Office then if your next repotting date is within the next two weeks then you run the risk of detention / removal. Do not panic, attend the reporting date, take your evidence of your return flight and given the timeframe they are not going to go for detention/ removal. It is far easier, cheaper for you to self dependent.

In both cases - assuming HO has your passport? What you need to arrange is for your passport to be available at the airport.

[OMY123]

No I'm not reporting to the HO - nothing has been recommended or suggest by my lawyer at this point as we have just completed a Pre Action Protocol which was refused last week.

I'm not really clear at all at this point how this will play out in terms of my Spouse application.
As far as I understand it's not great that our application was poorly conceived, and I have now overstayed - it doesn't seem positive despite HO stating that they believe the relationship is 'genuine and subsiting'

[Frontier Mole]

It really has a minimal impact, you are not the first person to go down this route!!

Check out the forum, there are many many cases where the individual has overstayed, returned home and applied for a Spouse visa and returned successfully.

It is no more of a big deal because you tried a PAP, many others have spun it way beyond that and have returned on a Spouse visa. The Home Office does not mark your file for differential treatment because you have used a method of legal challenge.