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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7620
Experience:  UK Lawyer holding practising certficate for England & Wales.
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Hi,My son and his wife have just realised that they

Resolved Question:

Hi, My son and his wife have just realised that they inadvertently broke UK immigration rules regarding getting married while in the UK on a visitor visa earlier this year, and urgently need advice on the best course of action to take now. My son is Irish and is living and working in the UK for 4 years. He met his wife who is Brazilian in 2012 when they worked together. She had to go back to Brazil in Feb 2013 because her VISA had expired, but at that stage they were living together and planned to get married. While back in Brazil in 2013 she applied for a visa based on a long term relationship, but that failed because they had not been together long enough. They had a short holiday in Ireland in July 2012, she flew directly into Dublin and returned to Brazil after the weeks holiday. By the end of 2013 they were desperate to be together other avenues like the possibility of eligibility for an Italian passport had got bogged down in red tape, but they realised that she would be eligible for a visitor visa back to the UK as she would have been gone for over 12 months by Feb 2014. My son travelled to Brazil in January 2014 and they were engaged to be married over there, with a wedding date set for this October 2014, the wedding to take place in Brazil. So in Feb Izabel returned to the UK on a visitor visa, with a return ticket booked for august when she intended to return to Brazil to arrange for the wedding. However, and this is where the problem lies, while they originally planned to have the civil and religious ceremony both in Brazil in Oct, when they started to research the civil end of things, they realised that if they waited until October, my son would have to spend additional time over there and he could not afford to be away from work for that long. He made enquiries in the local registry office in Swindon about what was required to arrange to have the civil ceremony there, in terms of notice, documents etc.. and was told that there was no issue so long as Izabel was in the country for longer than 7 days prior to the ceremony. so at quite short notice they arranged the civil ceremony in July, just our immediate family, Izabel's uncle and 3 close friends attended as we did not want to take away from the "real" wedding in Brazil but just wanted to have the civil ceremony completed before October. It genuinely never occurred to them that they were doing anything wrong, and the fact that the registry office who knew they were both non national did not query their status contributed to this false sense of having done the most efficient and sensible thing. Izabel returned to Barazil and started to apply for a visa based on marital status so that they could travel back to the UK together after the religious wedding in October in Brazil. It was only at that point that they realised that they were not supposed to get married while Izabel was in UK on a visitor visa basis. Can you advise what the best course of action is now? They clearly want to travel back to the UK together at the end of October after the wedding in Brazil, but now they realise that Izabel's only option is to do that again on a visitor visa basis. Can you advise if they should say that they have just got married in Brazil, or would it be better advised to say that they are just engaged if they are questioned at immigration at the airport? She is aware that she will in any case need to complete the English language test, but as her English is very good this is not going to be a major issue. Is there an avenue of appeal, where they can apply with supporting, letters and documents to support the fact that theirs is a genuine relationship and that they intend to spend their life married and working together in the UK. It would seem very unjust if they were to be punished for what was an innocent and naïve mistake. Apologies for the long winded question. Regards, J

Submitted: 3 years ago.
Category: Immigration Law
Expert:  Thomas replied 3 years ago.
Hi,
Thanks for your question.
Do you mean that your son is a Republic of Ireland citizen and this is the only citizenship that she holds? Ie. he is not a UK citizen?
Kind regards,
Tom
Customer: replied 3 years ago.

Yes that's correct, he is a citizen of Rep of Ireland and this is the only citizenship he holds. He is not a UK citizen.

I meant to ask, would it be an option for them to have the marriage annulled and just start all over again? e.g. have a civil ceremony in Ireland after an annulment? or would that be very complicated and a time issue?

Expert:  Thomas replied 3 years ago.
Hi
Thanks for your patience.
I will be able to answer at 9 a.m..
Kind regards.
Tom
Customer: replied 3 years ago.

Hi Tom,

Thanks for letting me know.

I will be in the office at 9am and may not get a chance to access your advice until late afternoon, but will get back to when I do.

Regards,

Joyce

Expert:  Thomas replied 3 years ago.
Hi Joyce,
Drafting your answer now. 10 mins please.
Tom
Expert:  Thomas replied 3 years ago.
Hi
Thank you for your question and patience, I’m Tom and I’ll try to help you.
Basically, what’s done is done. There is no real value in attempting to annul the marriage and then re-marry.
They will both have to submit with their applications statements confirming that they were not aware that marrying was a technical breach of her visitor’s visa and that the breach was intentional and unwitting. If they did not intend to marry when she entered the country then they should explain this in their statements.
If they are able to get character references from persons of authority who know them and can speak to their good character then they should do this and submit these with the application as well.
They should obviously provide as much evidence as they can showing the credibility of the relationship and the time that they have spent together.
Provided they do this and the home office accepts that their relationship is genuine and credible then they will still receive their family permit, because Article 8 of the human rights act (right to a family and private life) applies which will get around the breach of the visitor’s visa.
If you son is a Republic of Ireland national and does not hold UK citizenship then he is an EEA member state national exercising treaty rights in the UK. This means that she will only have to apply for an EEA Family Permit, rather than a spouse visa which is the equivalent for UK citizens and is much more restrictive.
This means that she will have to apply for and obtain an EEA family permit in order to secure come her to join you son in the UK to work. She will need to apply for it before she can travel :-
https://www.gov.uk/family-permit
Once she has come to the UK on her family permit she will be eligible to apply to the UKBA for a residence card which confirms her right of residence in the UK on the basis of your marriage:-
https://www.gov.uk/apply-for-a-uk-residence-card
It will either take the form of an endorsement in her passport or as a separate immigration status documents confirming her right to reside here for 5 years.
At the end of this time she will be able to apply for a Permanent Residence here if she wishes and has not spent significant time outside the UK.
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,

That is really helpful,

I have just one more question.

They are getting married (religious ceremony / big wedding) in Brazil on 18th Oct and are currently planning to fly back to the UK after the wedding on approx. 24 Oct. Izabel will be on a visitor visa and they would plan to follow your advice in making application while she is in the UK on her visitor visa. Do you think that will be relevant in terms of making their application? in other words, would it go against them if Izabel is stating in the UK while the application is being made?

Regards,

Joyce

Expert:  Thomas replied 3 years ago.
Hi,
I would avoid doing that because if they are married and intending on settling in the UK then she should apply for a family permit before she leaves for the UK to settle permanently.
If she is questioned at the airport about whether she intends to stay permanently even though she is attempting to enter on a visitor's visa then they could decide this is deception which is even worse.
Kind regards,
Tom
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