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Senior Partner
Senior Partner, Solicitor
Category: Law
Satisfied Customers: 13325
Experience:  Solicitor with more than 30 years experience
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spouse visa

Resolved Question:

My wife's fiancé visa (temporary leave to remain for two years) expired on 16th September 2013. We submitted at extension later than intended as the post office was closed due to strike, which reached the the home office on 15th October 2013. We have received a letter stating refusal to grant leave to remain as it was one day over the 28 days grace period. My wife is over 3 months pregnant and I have only travelled to USA twice in 10 years for no longer than 2 weeks on either occasion. My wife is part time employed and I am employed full time. We also have joint mortgage. what would you advise as moving to the USA is not a viable option.

Submitted: 3 years ago.
Category: Law
Customer: replied 3 years ago.
Relist: No answer yet.
Expert:  Senior Partner replied 3 years ago.
Hi thanks for your question. Can you provide some more information. Are you a British Citizen. If you wife got a fiancée visa why did you not apply for a spies visa when you married?
How long has she been in the uk?

When did you actually submit the application?
Customer: replied 3 years ago.
Yes I am a British citizen (born in the UK). After we got married in the summer of 2011, we applied for leave to remain as a spouse after her fiancé visa was coming to expire. she was granted two years temporary leave to remain, which ended on September 16th. We mixed up the dates and missed the deadline to apply for indefinite leave so we asked one of your experts our options and we're told that we get 28 days of grace period, during which we gathered all the necessary documents to apply for an extension. Our local post office was closed for days so I posted the documents from near my work, the documents were mailed on the 14th of October, and received by them on the 15th as it was next day delivery. They charged us their fee on the 17th. My wife the. Got a letter to submit her biometric data which she did. She has been living in the UK since April, 2011.
Expert:  Senior Partner replied 3 years ago.
Thanks. So she is on a spouse visa - the fiancee visa is only for 6 months. However she should have got more that 2 years on her spouse visa- it used to be 27 months and is note 30 months.
I now see that it was me who gave the advice before. Your wife said she needed to pass the Life in the UK test test. I assume she did so?

I recommended that she make a personal application and if she could not get the test on time that she apply for a temporary extension as it is of critical importance that you apply within the time limits. I did warn that she would have problem if she went past the 28 days.

You have limited options now. You can go back explain the circumstances in detail and ask them to exercise their discretion given it was only one day and there are mitigating circumstances.

You should have been notified of your rights of appeal and if you are limited to appeal on human rights grounds then you should also appeal on that basis. You will have that right of appeal also if they seek to deport her.

The alternative is for your wife to leave the uk and apply for a visa to reenter as a spouse. The fact that she is an overstayer does not prevent this and is not grounds for refusal provided she leaves the UK of her own volition but it will take a couple of weeks. I appreciate that as she is pregnant this is not ideal.

I am afraid you re not likely to get much sympathy from UKBA for your predicament - a postal strike is not much of an excuse for filing so late given the importance of complying with immigration law. However they must recognise that at the end of the day they are never likely to successfully deport her.

Customer: replied 3 years ago.
In the letter it states that there is no right to appeal and that she must now contact the local reinforcement centre. They have kept her passport. If she goes back to the USA, how soon can she re apply and enter the UK and what are the chances of her application being denied as she has overstayed?
Expert:  Senior Partner replied 3 years ago.
That is standard procedure to ask her to contact an enforcement centre. She can apply straight away and the fact that she has overstayed is not a ground for refusing a spouse visa. That is express in the rules. i cannot tell you how long it will take - it varies from application to application. In theory it could be delay with in a couple of weeks. They claim 75% are dealt with in 10 days and most within 14 days.

Overstayers do not have full rights of appeal - none the less I would ask them to review their decision in the light of all the circumstances.

I would also contact your local MP and ask them to intervene.

You should probably be well advised to go and see a local immigration solicitor in all the circumstances.
Customer: replied 3 years ago.
In the meantime should she notify her manager at work of her circumstances? Should she stop attending? She has upcoming doctor's appointments, does this mean she is no longer covered by the NHS?
Expert:  Senior Partner replied 3 years ago.
Strictly speaking she is not permitted to work. So her employer would be breaking the law by continuing to employ her. She is resident here so she is still entitled to NHS treatment.
Customer: replied 3 years ago.
Thank you for all of your help!
Expert:  Senior Partner replied 3 years ago.
Good luck

Keep me posted how you get on.

One point to bear in mind and to raise if you speak to your MP is that if you were not British but a citizen of another EEA country then your wife would have a right to be here and would not be subject to immigration restrictions at all - so you are being treated less favourably than people from other parts of the EU.
Senior Partner, Solicitor
Category: Law
Satisfied Customers: 13325
Experience: Solicitor with more than 30 years experience
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Customer: replied 3 years ago.
Previously you mentioned that we could try to explain our situation, who exactly do we do that with in terms of the UKBA? We've been given a deadline of 9th December to contact the local law enforcement centre, can we try to explain to them? If not who and how can we contact exactly? (Besides the MP)
Expert:  Senior Partner replied 3 years ago.
I would go back direct to the UKBA in the first instance.

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