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UK_Lawyer
UK_Lawyer, Solicitor
Category: Law
Satisfied Customers: 2452
Experience:  I am a qualified solicitor and an expert in UK law.
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Visa overstay? Settlement visa problem?

Customer Question

Hi, we have 2 problems.... Firstly We were discussing whether my 11 year old step son can apply to stay in the UK, he has been here for 5 months and 14 days on his 5 year multi entry visa when I realised that he has already accidentally overstayed as he visited last year and was here then from 23 June until 30 August. Therefore he has been in already for more than 180 days in the last year ( we only just realised this)! Secondly, my husband, his father is being given. Custody by the maternal grandmother in Egypt. He is trying to now gather evidence to show that regardless of the custody he has had sole responsibility for the child financially and in terms of the big decisions like schools, etc. we are worried that now he has overstayed we have no chance to apply for him to stay permanently.. Is this correct? What should we do? The grandmother can not look after him anymore and does not wish to, his mother can not by Egyptian law and no other legally bound guardians wish to take custody. He has no option but to stay with his father. However the official custody papers are not yet finalised.
Submitted: 1 year ago.
Category: Law
Expert:  UK_Lawyer replied 1 year ago.
Hi, thank you for your question, I will be happy to help you today.
Could you confirm if you and your husband are British nationals?
Kind regards
Customer: replied 1 year ago.
We are both British, my husband has been a British citizen since 2009.
Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply. I apologise for not reverting back to you earlier.
I think your two questions are one of the same, this is because you need to show firstly that there are compassionate and compelling circumstances preventing the child from returning to their home country and secondly that your husband is the sole guardian of the child, even if it is defacto guardianship.
1. Regarding your first question, according to the immigration rules, the child is not able to switch to another type of visa from inside the UK. However, if you have no choice and there is no one for the child to return to then you should ask the home office to exercise discretion and allow the child to apply from inside the UK. What you would need to do is provide affidavits from the grandparents confirming they relinquish their guardianship and are happy for the child to remain with their father indefinitely and secondly state in the affidavit the reasons why they are unable to look after the child, they can provide medical school evidence if possible. They should also state that there is no one else to look after the child in Egypt.
Furthermore, if possible you need to provide evidence, whether in the form of an affidavit from the child's mother and/or a letter from a lawyer in Egypt confirming the reason why as per the laws in Egypt the mother is unable to be the sole carer of the child.
You may also wish to obtain a progress letter from a lawyer in Egypt confirming that your husband has applied for custody and should be able to obtain this shortly.
You can then submit these documents and apply for the child to remain in the uk and not return. You need to apply using form FLR O, please see the following link :
https://www.gov.uk/government/publications/application-to-extend-stay-in-the-uk-form-flro
You should also submit the child's original birth certificate and also a dna test confirming that your husband is the biological father of the child.
I hope this answers your question if however you feel that the answer does not cover all the points raised in your question please do not hesitate to ask further questions until you are satisfied with my answer.
Kind regards
Customer: replied 1 year ago.
I hadn't realised you had replied! Terribly sorry about that as it has in fact changed the circumstances that we are now in. Due to the long holiday period I had assumed we would not manage to get further advice on this until after the 6 month period on my stepson's visa had passed and he would be an overstayer. Therefore my husband and my stepson will fly to Egypt tomorrow in order to avoid any black marks on the kid's passport for overstaying. They will then apply for a settlement visa for the child from Egypt. Although this will prove to be inconvenient, expensive and possibly less reliable than doing it from within the UK we didn't want to risk an incomplete application from this end and the chance of having to uproot the kid very quickly if he had the visa declined. My first question is can he return to the UK on his multiple entry visa if he has just stayed 180days in the country? Also we are aware that the application could take two months from Egypt which frankly is inconceivable as we have a business to run here. Perhaps we are making a mistake by removing the hold from the Uk for the application but it seemed the only option. I don't know if there is any difference in the consideration of granting settlement or not but we seemed to have no option ..... Until I read your post above two weeks after you had replied. Aaaarggghhh!
Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply. Its no problem at all
1. Well the question on him returning to the UK will be difficult, this is because the home office do not want a visitor to remain in the UK for 180 days or more and then spend a few days in the their home country and then return, this is because the immigration officers at the port of entry will view this as the visitor using their visit visa to settle in the UK rather than visit. So yes, he can apply and see what happen but due to the fact that he has already spent 180 days in the UK the application is likely to be refused.
2. As mentioned above, yes the child would be an overstayer, however, I would still recommend that you submit the application from the UK and claim compassionate and compelling circumstances of why the application could not be submitted from Egypt. The fact is that if you apply for a settlement visa from Egypt it can take up to 6 months during which the child will not be able to apply for any other visa to the UK or any other country.
I hope this helps.
Kind regards

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