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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7474
Experience:  UK Lawyer holding practising certficate for England & Wales.
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My fiancee has overstayed her visa and has been living

Customer Question

Hello, My fiancee has overstayed her visa and has been living in the UK for about 4 year. She is currently 3 months pregnant. I am a British citizen. We both want to get married but are afraid the registrar will report her to the UKBA. What are our options? What route can we take to legalize her stay in the UK? Are we allowed to get married?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Thomas replied 1 year ago.
Hi,
Thanks for your question.
When did her visa expire?
What are the reasons for her overstay?
Kind regards,
Tom
Customer: replied 1 year ago.
her visa expired in oct 2012.She applied for a new student visa but had problems as the lawyer did not check her paperwork carefully and turns out she had an expired bank statement (longer than 28 days). She appealed but then was refused a visa. She has overstayed since.
Expert:  Thomas replied 1 year ago.
Okay.
How long have you cohabited (lived in the same property in a relationship together)?
What is your annual income from employment?
Tom
Customer: replied 1 year ago.
We have been living together for nearly a year.My annual income is about £18,600
Expert:  Thomas replied 1 year ago.
Thanks. Drafting your answer now. 5mins please. Tom
Expert:  Thomas replied 1 year ago.
Hi,Thanks for your question. If you have only cohabited for a period of 1 year then you do not meet the 2 years cohabitation required in order to apply as “unmarried partners”. This means that an application for either a fiancé or a spouse visa would be the best way forward. You might be able to marry if you can prove your respective identities with your passports and also prove both of your addresses. If you did this then there is nothing legally preventing a registrar from marrying you.However, if you did marry then because your wife has overstayed her visa the home office would likely reject the application and require her to make it from her home country.If she had the child born in the UK and you were married then you would have more of an argument against the home office requiring her to leave the UK if you could show that it would prejudice the rights of the child. They would likely still reject the application and you would be forced to appeal and take your chances on appeal. It’s a massively tricky situation. If your wife were not pregnant, then I would suggest either marrying now and returning to her home country and applying for a spouse visa or making arrangements to marry at a later date and then her returning to her home country to then apply for a fiancé visa. With her being pregnant, if she were to marry right now and return home then it’s touch-and-go whether she gets her visa before she gives birth. Therefore, it’s simply a case of making a tough decision for you I’m afraid The webpage on spouse visas is here:https://www.gov.uk/join-family-in-ukThe eligibility criteria is here:-https://www.gov.uk/join-family-in-uk/eligibility If the application is well prepared and you meet the following eligibility criteria then it will make the application easy and quick to decide upon for the UKBA. To be eligible, you must show:- you and your partner are both aged 18 or over at the date of application;your partner is a British Citizen, or is present and settled in the UK, or is here with refugee leave or humanitarian protection;your partner is not related to you in a way that means you could not marry in UK law;you and your partner have met in person;your relationship with your partner is genuine and subsistingif you are married or in a civil partnership, your marriage or civil partnership is valid in UK law;if you are not married or in a civil partnership you have been living with your partner in a relationship akin to marriage or civil partnership for at least 2 years prior to the date of the application;you meet the suitability requirementsany previous relationship has permanently broken down (this does not apply to certain polygamous relationships);you and your partner intend to live together permanently in the UK;You must meet the financial requirement:-https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/371437/AnnexFM_Section_FM_1_7_Financial_Requirement.pdfThis means that the UK based spouse must earn a minimum income threshold of £18,600. Alternatively, if you have savings of £62, 500.00 then you would not have to prove any salary. You can also use a mix of the two.You would also have to show that you meet the English language requirement:-https://www.gov.uk/join-family-in-uk/knowledge-of-english You have to produce to the Home Office documentation that proves the above. This would be some of the following:-{C}· Bank statements from both you and your spouse going back 6 months showing the income/capital you have available{C}· Payslips (6 month of) and a letter from your employer stating that you have a permanent job, contract of employment{C}· Documentary evidence of any other assets you hold (eg. Shares, evidence of ISAs or bonds){C}· Marriage certificate, Birth Certificate, passport{C}· Evidence of correspondence between you and your spouse showing that the relationship is credible and genuine (eg. Emails, letters, evidence of previous trips, photos showing you together, phone records{C}· Evidence of the accommodation where you will live or that you can afford to accommodate yourselves once here.{C}· {C}· Further information here:-http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/documents/maintenance/ She will need to apply for settlement (ie. spouses visa) by using form VAF4A Settlement, but the application is actually made online You can find Uk immigration solicitors through the following Law Society Website search engine:-http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law Please do remember to leave feedbackIf you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”. Kind regards,Tom
Customer: replied 1 year ago.
If we do decide to get married and give in notice to a registrar. What documents would we need to provide? She still has a passport from her home country, is this accepted? and what are the chances that she will be reported to UKBA?
Expert:  Thomas replied 1 year ago.
She would also have to prove her address to the registrar, and this would usually be in the form of a bank statement or utility bill or council tax invoice. I'm afraid I cannot say with any certainty the precise degree of likelihood that she will be reported but I should think it would be no more than 50%. Please kindly remember to leave feedback. Kind regards. Tom
Expert:  Thomas replied 1 year ago.
Hi
Is there any further information you require?
I just want to ensure that you are satisfied, so please let me know if you have any further queries on the information I have provided. If you have no further questions then please do leave feedback.
Kind regards,
Tom

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