I'm a Scot living with an American partner VISA EXPIRED HELP

[Peter Dow]

I met my American partner on the internet recently. Love at first email and we are now engaged to be married.

We are currently living together in my home with her two kids in Scotland (for about a week now).

She had a work visa for the UK and she entered using that. It has now expired.

I telephoned the HM Immigration office at the local airport (anonymously) for advice and they informed me that due to a Feb 2005 change of rules there is no way to normalise her visa situation without her going back to the US and reapplying for a fiancee visa.

Meantime, if the immigration officers come across her in the course of their work (like reading this perhaps?) they may take proceedings to remove her from the country.

Incidentally, I am unemployed and have no option but to seek public funds to support myself, my partner and her children.

So of course I am going to seek legal advice but I thought I'd post my problem on the web to see if anyone out there has a solution or at least a similar problem.

What's the easiest lowest-cost way out of this immigration problem that enables myself and my love to continue to live together here in Scotland?

[John]

Peter, I think you have been correctly informed. It is no longer possible for someone in your fiancée's situation to give Notice of Intention to Marry at a Register Office. So she will indeed need to return to the States and apply for a fiancée visa there. After getting that it would be possible to give that notice at the Register Office, and then proceed to get married.

Alternatively if you also travel to the States, the two of you might be able to marry there, and then she could apply for a spouse visa there.

However, in both cases, there appears to be a great problem. You say that you are

unemployed and have no option but to seek public funds to support myself, my partner and her children.

The immigration rules are very clear. The claiming of certain Public Funds are prohibited by a person holding a restricted visa, such as fiancée or spouse, with a "No recourse to Public Funds" restriction. That does not stop you personally claiming benefits for yourself, but you cannot claim any addition for someone with a restricted visa.

Accordingly it appears to be the case that it would currently be futile your fiancée applying for a visa in the States. The advice to you must be ... get a job! Improve your financial situation, and then your fiancée can fly to the States and get her visa.

And her children? Also travelling on USA passports? Well they will also need UK visas presumably. So when your fiancée applies for hers, she should also apply for their settlement visas as well. Do note that a visa fee will be payable per applicant. The current fee for applying for settlement visas is £260 per person, and 3x£260 is of course £780, and that amount, or close to it, is payable in local US currency.

"What's the easiest lowest-cost way out of this immigration problem". I think you will see that there is not a low-cost option available.

[Kayalami]

Incidentally, I am unemployed and have no option but to seek public funds to support myself, my partner and her children.

In addition to the challenge of funds and accomodation the visa officer at the relevant British Consulate in the US will need definitive proof that your partner has the legal right to remove the children from US soil. Such may require a sworn affidavit by the other parent before a competent notary/attorney authorised to practice law under the relevant state jurisdiction.

[Peter Dow]

Well from what you've said doesn't look possible in the near term.

So what about an option to prevent the knock on the door by the immigration officers and police to enforce a removal from the UK order?

Can we go to say Ireland and re-enter the UK as tourists?

What about marrying in Ireland or Norway?

- Peter

[Peter Dow]

Trying to be imaginative - because the high cost options are out of reach financially for me - let be run some ideas past you all for comment -

The urgent problem is the expired visa that could mean my partner would be removed to the US. So ...

What if she and her kids went to Ireland (as tourists) - her UK visa would be expired as she left the UK (by a few weeks) but would UK immigration officers allow her to leave the UK into Ireland?

We could enter Ireland just as visitors, tourists or whatever. And we could see if we could get married in Ireland.

Or if we travel by boat to say Shetland or Norway, maybe even Ireland- could we get married in international waters by the captain of the ship/ferry etc. Outside the 12 mile limit international law of the sea applies yes?

Also could she and her kids re-enter the UK from say Ireland or Norway as tourists? If so would that not at least give her a current visa for the UK and allow us (is it 6?) months of peace together as an unmarried couple without the fear of the immigration officers and police detaining and arresting her?

I'd be interested if anyone has any other such low-cost options/schemes that would get the law off our backs so-to-speak?

[John]

Peter, some comments upon what you say. Firstly I personally have no knowledge about marriage laws in Ireland, Norway etc but suspect that a period of living there might be necessary. Hopefully others will post on that aspect.

(Legal marriage in Thailand would be possible within two or three working days of arriving, but suspect that if you could afford all those fares then you would not be needing to worry in this way.)

However even if the two of you are married, it begs the question, why is your fiancée/wife (re-)entering the UK? As a tourist, or indeed with the intention of settling here in the UK? If the immigration officer knows the true intentions there is a great danger than permission to enter as a tourist might be declined.

Even if the two of you are legally married then it will still be necessary for your wife (as she would be) to go back to the States and apply for her spouse visa, and settlement visas for the children. That is, the applications could not be made in the UK. And don't overlook Kayalami's point about your wife needing permission to remove them from the USA.

[Kayalami]

Peter,

1. Marriage in Ireland requires a minimum 3 month physical residence period prior to giving a notice to marry. Likewise marriage in Norway requires one of the party's to be domiciled...not sure how long but suspect circa 3 months..call their consulate in Edinburgh or London.

2. A marriage in any part of the North Sea within UK territorial waters e.g Shetlands is subject to UK marriage laws....all registrar offices in Scotland as classed as 'designated' by the most recent immigration regulations....problem is the expired visa.

3. A marriage that is conducted outside the UK must be valid under the relevant country's law - hence a marriage in international waters would AFAIK fall for refusal (immigration wise) as it is not valid in a defined state.

4. All your current scenarios will only lead to more complications - the least being a refusal of entry into Ireland and the UK. Where a UK re-entry is somehow successful I expect there to be issues around misrepresentation of material facts coupled with extreme difficulties if not impossibility to change status 'in country'.

5. Is there any reason you are unable to work, improve your financial situation and sponsor your partner as a spouse? The stress involved via your 'planned' route will IMHO damage your marriage..with minors involved it is best to consider the impact of such.

6. Does the mother have legal sole custody of the children as evidenced by a court issued document? Which US state did she last reside in?