Marriage(UK+Ecuadorian) with Problem!

[Johnson333]

The Facts:

-I am a British Citizen, born here and lived here all my life. Steady job with place to live.
-She is a 19 year old Ecuadorian who lives in Florida. She arrived in the states with her family when she was around 13 years old on a tourist visa which has obviously expired, so now she has no legal status in the United States.

We've been seeing each other (frequent holidays to the states on my part) and we plan to marry in mid 2006. After marriage (which is planned to take place in the states) we would like to live together here in London.

Questions:

A number of questions come to mind. Obviously we will need to apply for a spouse visa for the UK which I understand can only be done after the marriage so we can supply a marriage certificate. Is it clear cut that she will have to apply for her visa in Ecuador (the country she is a citizen of) or is there any possibility that she will be able to apply in the states for a UK spouse visa?

We would like to avoid her going to Ecuador to apply if possible - we don't imagine the states will let her back in as shes overstayed her visa and so its a all-or-nothing departure. If there are complications, delays or a refusal of the visa it will mean she is stranded alone in Ecuador away from her family with probably very little hope of her returning to the states. Also there are the less important cost/inconvenice factors.

Also, will the fact that she has overstayed in the United States play as a factor when she applies for a UK spouse visa? If so how much? She didn't really have a choice in the matter, she was 13 and obviously did what her parents told her to do. Since being in the states she has never been introuble with any authorities or attempted to leave/enter any countries.

If you can help/advise in anyway, it would be really appreciated. (We intend to contact the Home Office/Ecuadorian Embassy for advice too)

Thanks guys!

[Kayalami]

A number of questions come to mind. Obviously we will need to apply for a spouse visa for the UK which I understand can only be done after the marriage so we can supply a marriage certificate. Is it clear cut that she will have to apply for her visa in Ecuador (the country she is a citizen of) or is there any possibility that she will be able to apply in the states for a UK spouse visa?

British diplomatic posts will only accept an entry clearance/ visa application from someone who is legally in the relevant country in this case the US. In settlement visa applications e.g. marriage to a British Citizen then the applicant must be both legal and long term i.e. not a visitor. Sorry.

We would like to avoid her going to Ecuador to apply if possible - we don't imagine the states will let her back in as shes overstayed her visa and so its a all-or-nothing departure. If there are complications, delays or a refusal of the visa it will mean she is stranded alone in Ecuador away from her family with probably very little hope of her returning to the states. Also there are the less important cost/inconvenice factors.

Her return to Ecuador is of no relevance to the UK authorities. IMHO she has no choice but to go to Ecuador and obtain a 2 yr settlement visa from the British Consulate - Quito. If the application is well prepared then there should be no delays. In any case I would expect the volume of applications in Quito to be minimal say relative to those on the Indian Sub-Continent. Hence even if when the interview is scheduled it could be done fairly quickly.

Also, will the fact that she has overstayed in the United States play as a factor when she applies for a UK spouse visa? If so how much? She didn't really have a choice in the matter, she was 13 and obviously did what her parents told her to do. Since being in the states she has never been introuble with any authorities or attempted to leave/enter any countries.

The British Embassy is obliged to consider an applicants immigration history to include that in the host country. However since your to be wife will be coming on a settlement visa to the UK then the subjective ground of 'returning home' is moot - this is usually the ground for refusal in non settlement visas e.g. visitors. IMHO that she went to the US a minor and thus had no real say in the move will be considered sympathetically/in her favour. Note that normally overstaying in the US for more than 365 days leads to a 10 yr ban. However exemptions exist where one overstayed as a minor...if your g/f ever wants to return to the US she best see an immigration lawyer before she departs the US to get the relevant waivers.

If you can help/advise in anyway, it would be really appreciated. (We intend to contact the Home Office/Ecuadorian Embassy for advice too)

IMHO only option is to get married in the US then she goes to Ecuador to obtain her spouse visa. Go through this family forum and see the immigration rules pertaining to this category. In particular note the detailed level of evidence required to substantiate your UK status, your relationship, that you have met and that your spouse can be accomodated and maintained without recourse to public funds. My fellow moderator John often advises applicants to contact the relevant consulate in advance to see if they can schedule an interview shortly after application submission date. Finally I am not one to interfere (and I do wish you all the best) but I wonder how old you are? Are the two of you ready for marriage at presumably a very young age?

Good luck.

[Johnson333]

Firstly thank you for your quick reply, and apologies for not replying sooner.

Since my last post I have continued to make my frequent visits to Florida. On my last visit we became engaged and plan to marry in Ecuador in Jan 2007. I have a few more quesitons, if i may:

Also, will the fact that she has overstayed in the United States play as a factor when she applies for a UK spouse visa? If so how much? She didn't really have a choice in the matter, she was 13 and obviously did what her parents told her to do. Since being in the states she has never been introuble with any authorities or attempted to leave/enter any countries.

The British Embassy is obliged to consider an applicants immigration history to include that in the host country. However since your to be wife will be coming on a settlement visa to the UK then the subjective ground of 'returning home' is moot - this is usually the ground for refusal in non settlement visas e.g. visitors. IMHO that she went to the US a minor and thus had no real say in the move will be considered sympathetically/in her favour. Note that normally overstaying in the US for more than 365 days leads to a 10 yr ban. However exemptions exist where one overstayed as a minor...if your g/f ever wants to return to the US she best see an immigration lawyer before she departs the US to get the relevant waivers.

On the VAF2 form 7.16 "Have you ever been refused entry to, deported from, or otherwise required to leave, another country?" What would the answer to this question be? (recap: shes been overstaying in the States for 5 years and will be voluntarily be moving back to Ecuador later this year)

IMHO only option is to get married in the US then she goes to Ecuador to obtain her spouse visa. Go through this family forum and see the immigration rules pertaining to this category. In particular note the detailed level of evidence required to substantiate your UK status, your relationship, that you have met and that your spouse can be accomodated and maintained without recourse to public funds. My fellow moderator John often advises applicants to contact the relevant consulate in advance to see if they can schedule an interview shortly after application submission date. Finally I am not one to interfere (and I do wish you all the best) but I wonder how old you are? Are the two of you ready for marriage at presumably a very young age? Good luck

Thats pretty much what we are going to do. She is returning to Ecuador later this year and we plan to have a civil and church wedding there, followed by a visa application and then move to the UK. We are very confident of meeting all the requirements and supplying all the necessary documentation. I've contacted the embassy to enquire about the typical wait times and if the prearrangement of interviews.

Once she has her Spouse visa is she immediately allowed to work and study in the UK? Am I right in thinking that she will not be eligible for 'home fees' for the first three years?

Appreciate your help.