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Must I go home to marry a British citizen? I am an overstayer.

QUESTION: For the past 4 years, I’ve been in a relationship with a British citizen and we want to get married here in UK.

I am an overstayer, due to a false promise of a student visa, and I have worked all this time, but illegally. I don’t have a NI number or visa in my passport to find a proper job. I wash dishes in restaurants, tidy people’s houses and look after kids, I had to do it all for £3-£4 an hour just to make my living, I didn’t have much choice. It’s been so difficult that I can’t even explain. I pray to God that any time soon I can sort out my papers and start proper life.

You may judge me or think that I shouldn’t break the law, but that is no way back for me. I don’t have a criminal record, I speak English well, I have been working all this time and wish to continue to do so. I don’t need any benefits or government funds, I just want to live my life like everybody else.

Please is there anything I can do without being deported back?

ANSWER: The good news is that it may be possible to regularise your legal status in the UK through your relationship, as your partner is a British citizen and you say that you both want to marry.

However, you may have trouble as, generally, you would require a valid visa with more than 3 months leave remaining on the visa before you can apply to the Home Office for permission to marry.

To make such an application you would need to complete and send a “Certificate of Approval application” to the Home Office and they would decide whether you should be granted the right to marry.

In your situation, you would have to explain any exceptional, compassionate circumstances for the Home Office to grant a Certificate of Approval on why you should be able to marry.

Though you have described many personal difficulties this may not necessarily constitute exceptional, compassionate in the legal sense. Examples of exceptional, compassionate in the legal sense would include where you have young children who would not be able to return to the Ukraine with you for you to apply for a spouse visa there or where you are suffering serious health difficulties which prohibits your safe return to the Ukraine.

In the absence of any compelling features, then it is unlikely that the Home Office will grant you a Certificate of Approval to marry. However, there is nothing to prohibit you from still trying and it should be noted that the Home Office do not charge a fee to decide such applications.

If we assume the Home Office at their discretion approve the Certificate of Approval application, then following your marriage at a registry office in the UK, you have two options: firstly to consider returning to the Ukraine to make an entry clearance application at the British Embassy as the spouse of a British citizen which is actually the correct route to regularise your legal status as the immigration rules do state that you should obtain a visa to enter the UK as a spouse.

Your other option is to consider making an application to the Home Office following your marriage requesting you be granted leave to remain on the basis of your marriage to a British citizen. In practice, the Home Office’s position is usually not to grant a spouse visa in such circumstances unless you can show exceptional, compassionate circumstances as to why you should be granted a visa in-country.

The Home Office do not generally allow overstayers to regularise their status in-country on the basis of their marriage to a British citizen as they do not want to set a precedent indicating that overstayers can regularise their legal status via marriage. The Home Office however will consider granting leave where there are issues relating to an individual’s Human Rights that compel the authorities to grant a person’s rights under the Human Rights Act.

Let us assume that you submit a certificate of approval application, which is refused or alternately, you decide not to submit this application and instead decide that you want to return to Ukraine voluntarily and, at your own expense, to marry there. You can do so and following your marriage you can apply for a spouse visa at the British Embassy to return to the UK as the spouse of a British citizen.

If you have not used false documents, fake ID or done anything negative but simply overstayed in the UK, the British Embassy will not consider the fact that you have overstayed as being a reason to deny your spouse visa application. Rather, the Entry Clearance Officer will look into whether you satisfy the criteria for a spouse visa: the rules require your husband (who will act as your sponsor in the entry clearance application) to show he can maintain and accommodate you without recourse to public funds if you are granted a visa and furthermore, you will need to satisfy the Entry Clearance Officer that your marriage is genuine which you can prove through evidence of your relationship i.e: love cards exchanged, itemised phone bills, photographs of you both over the year, any correspondence addressed to you both if you co-habited together e.tc.

However, if in the event that you have used deception, false I.D or anything that would indicate that you have sought to “significantly frustrate the intentions of the immigration rules”, then it may not be advisable for you to consider returning to your home country to apply for a visa as you risk a visa refusal.

The link below will give you information on automatic visa refusals- it should be noted that both the Home Office and British Embassy have the power to automatically refuse visas.

Automatic Visa Refusals: tougher rules for overstayers

To conclude, it would be advisable for you to seek the advice of an accredited immigration solicitor to give you full and thorough advice on your matter as there is no better option then getting professional legal advice in immigration matters where a person has overstayed.

by Raheela Hussain,
Principal Solicitor of Greenfields Solicitors

For questions regarding the subject covered in this guide, please visit migreat.com.

The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Greenfields Solicitors on 020 8884 1166 for a Consultation with a Solicitor.
 

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