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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7602
Experience:  UK Lawyer holding practising certficate for England & Wales.
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My wife (Brazilian and four or my Children) have overstayed

Resolved Question:

My wife (Brazilian and four or my Children) have overstayed their respective clearnace visas issued in Sep 2011. I need to legallise their status here in the UK, and I am told I could submit either the SET(M) or the FLR(M) form. Can you pleazse tell me whcih one is most appropriate under the circumstances? I am British and my eldest daughter is alos British, but the other 5 members of the family are not. We have been married for 13.5 years and arrived here in the Uk in Oct 2011, but did not apply of the SET(M) in the time given. Now I am not certain which form to complete. Can you please advise?
Submitted: 3 years ago.
Category: Immigration Law
Expert:  Thomas replied 3 years ago.
Hi,

Thanks for your question.

When did their most recent leave to remain expire please?

Did your wife obtain leave to remain as a spouse of a uK citizen in September 2011?

Kind regards,

Tom
Customer: replied 3 years ago.

Expired in Dec 2013.


 


At the time of application I (Spouse) had Right-of-Abode, but due to a law change (in 2008) I resigeterd as a Bristish citizen (By descent) in May 2012. So at the time of application I was not a citizen, but as you are probably aware I had all the rights of one.


 

Expert:  Thomas replied 3 years ago.

Hi

Thank you for your question and patience, I’m Tom and I’ll try to help you.

I’m afraid that the overstay is a problem because it’s quite long. This means that they would not now be able to apply for ILR because of the overstay.

Additionally, not having leave to remain and overstaying for 6 months is also a general ground to refuse an application to switch to a spouse visa. However, you might be able to argue around this on appeal on the basis that it would be disproportionate and unreasonable to expect them to all leave once to return in a matter of months, especially considering the disruption it would cause to the children.

On that basis I would think that an application for leave to remain as a spouse of a UK national using form FLR(M) is the best way forward.

Because of the overstay though it really would be in your best interests to instruct a solicitor to prepare the application and draft it and the supporting documents (ie your statements) in the best way possible to explain the overstay and attempt to argue around it.


My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.


Kind regards,


Tom
Customer: replied 3 years ago.


Hi Tom.


 


I just want to make sure everything is understood. Currently my wife had a Spouse Visa (Settlement) ref 281, as did 5 of my 5 children (all under the age of 13 years). I realise the time is excessive, but I can't do anything about that now, we have only just realised the situation. I didn't quite follow your comment on leaving then returning and appeal, which visa does it apply to. We are not asking for a switch of visa, or are we?


 


Clearly the objective is to stay in the UK so as not to disrupt the family, while this process is carried out.

Expert:  Thomas replied 3 years ago.
Hi,

An FLM(M) is an application for leave to remain as the spouse of a UK natoinal, which is what your wife needs to apply for.

If she does not have leave to remain then the Home Office could reject on the basis that they require her to make the application from her home country. If they did this then you would have to appeal to the immigration appeal tribunal for the visa to be granted without her having to leave. This is likely what will happen. For this reason you need to instruct a solicitor to present the argument in the best possible way.

Kind regards,

Tom
Customer: replied 3 years ago.


Hi Tom,


 


Sorry to drag this out but...


 


Just to follow this through correctly then. You are sugesting that I submit the FLR(M), not the SET(M), and upon likely refusal, I then instruct a solicitor, but not necesarily at this point?


 


Andrew

Expert:  Thomas replied 3 years ago.
Hi Andrew,

Yes, FLR(M) is the correct form (not SET(M))

However, you should instruct a solicitor to prepare the FLR(M) application now and submit it on your behalf because of the overstay complications.

Tom
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