married for 5 years but without a valid visa

[worried man]

Hi there,

First of all I would like to congratulate the excellent work done here on the boards. I have over the last few years spent a reasonable amount of cash trying to get my problem sorted and pretty much all advice I got from lawyers has been explained in details in one the many postings.

However, I haven't found a case quite like mine hence the posting.

Ok, there it goes:

* I entered the UK in 1999 on a student visa.
* Met my future wife in Aug 2000.
* Student visa expired in Dec 2000.
* Got married with UK citizen in 2001.
* Applied for a spouse visa in March 2002.
* Application withdrawn on lawyer's advice in march 2003 (one year later), Went in person to the home office, got my passport back, without a valid visa, no questions asked! (I must now say that my intention was to leave the country an go back to my country of origin and apply for an "entry clearance"), however before I could leave the UK I had an accident 2003 and had to take 9 months off work, any savings gone by then.
* Picked up a criminal conviction in June 2003. No jail term, community service instead. Pre trial report was very favourably.
* 2004 got back on my feet, healthy again, however still no valid visa; I have now overstayed my welcome by a long 4 years. At this point I feel very scared of thought of leaving this country and not being able to come back, so I did nothing about my visa situation.
* 2005 life is pretty much back on track but visa situation is the perpetual noose around my neck.
* Oct 2005, I buy an airtkt to my country and prepare my entry clearance application with the assistance of yet another expensive lawyer. His advice was for me to go back. I am very worried at the prospectus of leaving this country in case my application is refused. What will I do? My wife and pretty much my like is now here in the UK.
* Dec 2005, New lawyer, new advice. My new lawyer now thinks that I shouldn’t leave the country to make an application. As I have been married and living together for more than 5 years, she explained me, my case fall under a special provision and it looks like I can apply for a ILR from the UK (now that is something you don’t hear very often). This new information relayed to me by this new lawyer has made me cancel our flights to my home country. I then decide to apply from UK on the basis of this new clause.
* More lawyers, more advice, more money spent. Time now is April 2006 and I am now more confused regarding this issue that I was back a few years ago.

As I know I will most likely just get one shot, I am trying to make sure that I do not make any more mistakes. I am still unsure as to what is the best option to me.

I know most people advice me to leave the country and apply for an ‘entry clearance”. However by doing so, I will be taking the risk of having my application rejected and not being allowed back into the country and this is a risk that I cannot afford to take.

I also must point out that I have been living with my wife for 6 years at the same address. I have hundreds of bills, bank statements, tenancy agreement, the lot, all in our name.

I am seriously in need of some help and legal advice. I m very sorry about the long post but I think there was no other way to lay down my situation. I’d like to thank you for taking the time to read my post.

Any comments will be very much appreciated.

Regards
A very worried young man

[John]

Hi, you are not the first one to be facing this situation, and you probably will not be the last, although the numbers in the future will diminish, if only because it is no longer possible for non-EEA "illegals" to get married in the UK.

Anyway, needless to say, this topic has come up before. Have a good read through this topic started by member Marie B. See how the "story" progresses, and see the result!

The short comment to you is ... go back to your country armed with a well-prepared "evidence folder", submit an application for a two-year spouse visa, and hopefully anything will be fine.

I will be taking the risk of having my application rejected and not being allowed back into the country and this is a risk that I cannot afford to take.

You have no choice. You are not allowed to work in the UK at the moment. The Government is tightening up on employers employing illegal workers. Expect life to get much tougher for you until you regularise your situation.

[worried man]

Thank you for your reply.

Few things I would like to ask your opinion on:

First: A previous criminal conviction in acquired in the UK, convicted but no jail sentence imposed, community service instead. Surely this fact alone can be the basis for a refusal, if I understand it right.

Second: applying from the UK does not invoke the human rights article n8 "Right to family". The basis on this application would be a home office directory about marriages that are longer than a 5 yr period.

One other thing, If I do decide to apply directly to the home office in the UK and if then have application refused by the HO, what would be the impact of this possible refusal in a future entry clearance?

Thank you very much for help. There are times when help feels like hope.

[Chess]

1. What was the criminal conviction for?


2. Forget about an in country application or use of HRA as unfortunately it wont work

[John]

applying from the UK does not invoke the human rights article n8 "Right to family"

As Chess says, it will not work. The UK Government consistently says that yes, the person does have a right to family life, but not necessarily in the UK. It would say ... go and have your family life in your country.

Or put it another way, only where, very exceptionally, it is not possible for the couple to live together elsewhere, then they might concede that there is a HRA issue.

Which begs the question ... where are you from? Which country?

[worried man]

Thank you again...

I really appreciate all your help and comments.


Ok I will try to answer your questions;

1) The criminal conviction was for being in possession of a controlled substance, class a back in 2003. There was no jail sentence and pre trial report worked in my favour. I did 190 hours of community service and that was the end of it (or so I thought).

2) My country origin is Brazil, so I'm a Brazilian therefore most likely my life will not be in danger if I go back to brazil, however my wife's life may well be! And that is not all. I left my country in 1999, it's been nearly seven years and in this time I 've built myself a life in the UK. there's nothing left for me in my country, just distant memories.

My wife, my life and my friends are here. My wife does not speak very good Portuguese and her life, her career, friends and family are also here in this country, even more so than myself. After all she was born and raised in this country and more important to this matter, She does not intend to move to Brazil on a permanent basis and I’d discourage her of doing it even if she wanted to do so!

When I say I do not want to go back, it does not mean I fear going back to it. My fear lies in not being able to escape that place again! I'm now bordering my 30s and the last seven yrs have been nothing but a uphill struggle. I kind of did well, even though I had no right of being here legally and all odds were stacked heavily against me I still managed to lead a simple but comfortable life. I just do not want to give up on little I have achieved and I do not wish to have to start from zero once again. I just don't have the energy to do it all over again. I am not 23 anymore and time is still clicking away as we speak (or write;).

However I'm coming to the realisation that I will have to stand up and be counted. I am aware that my past actions put myself where I am today and I guess I will have to put my destiny into someone’s hand and hope for the best, however even the best, IMHO, in my case does not look very good indeed.

[worried man]

2. Forget about an in country application or use of HRA as unfortunately it wont work

Hi there, The article 8 of the human rights charter would not be the base of my "in country" application. Application would be made with basis on little known home office directory regarding marriages that have existed for longer than a 5 years period (my case here) regardless of their immigration status.

(below it's an extract from my last conversation with my lawyer)

"As discussed, it may be possible for you to change your status from within
the UK. You would need to prove that you have been married to, or in a
relationship akin to marriage, and living together, for at least two years,
and you could then make an application to remain in the UK as the spouse of a UK national.

Bearing in mind the other circumstances, especially the
charge of possession of a class 'A' drug, I think that this may be your best
option, although ordinarily I would advise that you leave the UK and reapply from overseas."


So, what do you guys think? Does this info proceed? thanks

[John]

No one here made up the rules. As much as anyone might sympathise with you, it makes no difference. Put together an "evidence folder", fly to Brazil, submit the evidence and the supporting evidence ... you will only be out of the country say a couple of weeks, if delays at the British Embassy in Brazil are minimal.

If necessary, re-read that topic I linked to earlier!

[worried man]

Thank you for your straight forward reply.

My "evidence folder" has been ready for a while but one in my situation would never think it is enough.

Previous link of similar account has been of great value. it's not every day you find good quality free information others would be rightly be charging for.

thank you all for your replies and comments, will keep this board posted on future developments and maybe then my case and experience will be of some use to the members of this board. I'll just hope it is a good one...

well, I guess I will soon be drinking a caipirinha in Copacabana then... it can't be that bad, can it?

free at last...

[Kayalami]

I concur with comments from my fellow moderators. I regularly interact with practitioners in the immigration field and it is distinctly obvious that the threshold for applicants in the UK illegally to be granted leave notwithstanding the need to 'maintain effective/the integrity of UK immigration laws' has been raised so high as towards Article 3 - torture/ death/ inhuman treatment.

Article 8 cases are nowadays increasingly routinely dismissed at tribunal. If the conviction is spent you don't need to declare it in your VAF2 application at the British Consulate in Brazil. Get the relevant notes from the court/ your solicitor if possible - they may have gone to archive by now in case the issue comes up at visa application. IMHO an 'in country application' has a significant percentage (>80) to fail.

Good luck

[badboyz]

Hi your case may fall under DP3/96 a concession for people who overstay there visa and marry a british spouse it might take up to 3 years if you apply in the UK, but if you go back home , they only can refuse you a visa if your conviction is equivalent to 12 months im prison in the UK. Take a look at the entre clearance rules

General grounds for the refusal of entry clearance, leave to enter or variation of leave to enter or remain in the United Kingdom
REFUSAL OF ENTRY CLEARANCE OR LEAVE TO ENTER THE UNITED KINGDOM

320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:

Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
(1) the fact that entry is being sought for a purpose not covered by these Rules;

(2) the fact that the person seeking entry to the United Kingdom is currently the subject of a deportation order;

(3) failure by the person seeking entry to the United Kingdom to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing his identity and nationality;

(4) failure to satisfy the Immigration Officer, in the case of a person arriving in the United Kingdom or seeking entry through the Channel Tunnel with the intention of entering any other part of the common travel area, that he is acceptable to the immigration authorities there;

(5) failure, in the case of a visa national, to produce to the Immigration Officer a passport or other identity document endorsed with a valid and current United Kingdom entry clearance issued for the purpose for which entry is sought;

(6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;

(7) save in relation to a person settled in the United Kingdom or where the Immigration Officer is satisfied that there are strong compassionate reasons justifying admission, confirmation from the Medical Inspector that, for medical reasons, it is undesirable to admit a person seeking leave to enter the United Kingdom.

Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused

(8 ) failure by a person arriving in the United Kingdom to furnish the Immigration Officer with such information as may be required for the purpose of deciding whether he requires leave to enter and, if so, whether and on what terms leave should be given;

(8A) where the person seeking leave is outside the United Kingdom, failure by him to supply any information, documents, copy documents or medical report requested by an Immigration Officer;

(9) failure by a person seeking leave to enter as a returning resident to satisfy the Immigration Officer that he meets the requirements of paragraph 18 of these Rules, or that he seeks leave to enter for the same purpose as that for which his earlier leave was granted;

(10) production by the person seeking leave to enter the United Kingdom of a national passport or travel document issued by a territorial entity or authority which is not recognised by Her Majesty's Government as a state or is not dealt with as a government by them, or which does not accept valid United Kingdom passports for the purpose of its own immigration control; or a passport or travel document which does not comply with international passport practice;

(11) failure to observe the time limit or conditions attached to any grant of leave to enter or remain in the United Kingdom;

(12) the obtaining of a previous leave to enter or remain by deception;


(13) failure, except by a person eligible for admission to the United Kingdom for settlement or a spouse or civil partner eligible for admission under paragraph 282, to satisfy the Immigration Officer that he will be admitted to another country after a stay in the United Kingdom;

(14) refusal by a sponsor of a person seeking leave to enter the United Kingdom to give, if requested to do so, an undertaking in writing to be responsible for that person's maintenance and accommodation for the period of any leave granted;

(15) whether or not to the holder's knowledge, the making of false representations or the failure to disclose any material fact for the purpose of obtaining an immigration employment document;

(16) failure, in the case of a child under the age of 18 years seeking leave to enter the United Kingdom otherwise than in conjunction with an application made by his parent(s) or legal guardian to provide the Immigration Officer, if required to do so, with written consent to the application from his parent(s) or legal guardian; save that the requirement as to written consent does not apply in the case of a child seeking admission to the United Kingdom as an asylum seeker;

(17) save in relation to a person settled in the United Kingdom, refusal to undergo a medical examination when required to do so by the Immigration Officer;

(18 ) save where the Immigration Officer is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom;

(19) where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.

(20) failure by a person seeking entry into the United Kingdom to comply with a requirement relating to the provision of physical data to which he is subject by regulations made under section 126 of the Nationality, Immigration and Asylum Act 2002.

(21) Whether or not to the applicant's knowledge, the submission of a false document in support of an application

[worried man]

First of all, I would like to once again express my gratitude to the members of this board. Only three days into this forum has been like having a few hours with a Lawyer, but just without having to pay for it!':shock:'

Ok, some points I'd like to share with you:

If the conviction is spent you don't need to declare it in your VAF2 application

I have searched the Internet and found conflicting info as to the time it takes for a conviction to become spent.

"The Rehabilitation of Offenders Act 1974 enables some criminal convictions to become 'spent', or ignored, after a 'rehabilitation period'.

A rehabilitation period is a set length of time from the date of conviction. After this period, with certain exceptions, an ex-offender is not NORMALLY obliged to mention the conviction."

Rehabilitation Periods

The length of the rehabilitation period depends on the sentence given - not the offence committed.

Here is where most of conflicting info lies:

Some info say community punishment order will become spent after <B>5 years</b> from the date of the sentencing, in my case 06/06/03 therefore it would not become 'spent' until 06/06/2006.

In other law websites, the rehabilitation for non-custodial sentences (i.e. community order, fine or both) becomes expired after 1 year or until the order expires (whichever is longer), which would leave me in the clean.

I've called both the lawyer who dealt with my case back in 2003 and the Bow magistrates court where sentence was passed. None could give me a definite answer. I have now applied for a disclosure of my criminal records from the CRB (Criminal Records Bureau) and will most likely include this info on my VAF2 application form.

But before I make up my mind I think I better wait for a reply from the CRB.

18- Save where the Immigration Officer is satisfied that admission would be justified for strong compassionate reasons, conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom;

Another problem here, see bellow the penalties

Penalties for conviction under the Misuse of Drugs Act
Maximum Penalties: Class A Drug

Magistrates Court:
Possession - 6 months imprisonment or £5,000 fine - or both.
Supply - 6 months imprisonment or £5,000 fine - or both.

Crown Court:
Possession - 7 years imprisonment or unlimited fine - or both.
Supply (or possession with intent to supply) - Life imprisonment or unlimited fine - or both.

However my offence could have been tried by the crown court if they wished to do so and the maximum sentence could have been 7 years imprisonment.

All I got was just a "community order" however the offence could have been punishable with imprisonment for a term of 12 months or any greater, therefore I believe that what matters is not mu actual sentence but what the max term could have been.

Am I right in my interpretation?

Thanks,