Can Wife Get A Spouse Visa After Overstay As Fiancee

[yorkieb]

My fiancee is in the uk on a 6 month fiancee visa. The visa expired 6 months ago. There has been some delay in getting married which has now been resolved. Due to the fact that the marriage licence is valid for 12 months we can still marry in the Uk. Marriage is due to take place end of January. With that all done my then new wife will return to Thailand to see family and apply for a 2 year married visa through HO in Bangkok. (Please note that the overstay is due to being in the middle of a Juditial Review which should conclude late 2008). (Inaddition her passport expires in June 2008 and must be reissued in BKK and is also very homesick).

1. Will the HO BKK refuse her application due to the 6 month overstay in the UK irrespective of any JR.

2. As we will be married is the slate wiped clean about the over stay on the fiancee visa when applying for the married visa with all the new married docs.

3. Will the HO in BKK delay issuing a married visa and await the outcome ofthe JR, to see if she had the right to overstay.

4. If we were to be unsucessfull in the JR, even though we are legally married in the UK would she be barred from the UKin the future.

5. Finally as the JR is about there refusalto grant and extion to the fiancee visa to enable us to marry in the Uk, but now we have managed it getting asylum within the JR process can we now cancel it, and go for the married visa without comeback.

I appreciate that these questions are quite specific but I anybody has any close experience navigating through similar issues , that would be a great help.

Cheers

Yorkieb

[Eff1n2ret]

"...getting asylum within the JR process..."

Sorry, I don't understand that. She made an asylum application as well?

[yorkieb]

"...getting asylum within the JR process..."

Sorry, I don't understand that. She made an asylum application as well?

Sorry for being unclear............After an application for a Judicial review has been lodged the HO has no power to remove my Fiancee from the UK. They refused her FLR(O) on some bogus grounds. After consulting a barrister we wer advised that they had broken imigration law and we should initiate JR. We received a letter with the refusal instructing her to leave emmediatly. the effect of the JR process neutralised there threat.

Yorkieb

[Eff1n2ret]

OK, so she didn't "overstay" in the normal sense of the term - you've said it yourself, your JR application removed the power of the Home Office to treat her as an offender, and she has the right to remain in the UK until the case is resolved.

But in the meantime you're going through with the marriage, which is the reason she got the visa in the first place, and she's returning to her own country to apply for the 2-year visa as your wife, which seems the honourable and legal thing to do.

I don't know whether the Embassy would want to wait for the outcome of the JR case before issuing the visa. They might do, but on the facts as you state them we're looking at 2 different issues - 1) was the HO incorrect in law when they refused an extension, 2) is there a credible application for a marriage visa. If you fulfil all the requirements for 2, it is arguable that this can be considered in isolation, and it must be considered on its merits. There's nothing you've said that indicates she has committed any immigration offence, and she's showing good faith by going back and applying there.

But when she gets back to Thailand, why don't you test the water by asking them? I'm sure someone here could give you the name or email address of someone at the visa section in BKK.

Whether or not you abandon your JR case is really a matter between you and your legal reps. There might be some important point of law which has to be pursued, but presumably it's your money they're playing with. By returning. she's sacrificing the opportunity to make an application here if she wins, but of course if she loses she's no worse off by returning before then, which is what she wants to do anyway.

Hope this helps.

[yorkieb]

OK, so she didn't "overstay" in the normal sense of the term - you've said it yourself, your JR application removed the power of the Home Office to treat her as an offender, and she has the right to remain in the UK until the case is resolved.

But in the meantime you're going through with the marriage, which is the reason she got the visa in the first place, and she's returning to her own country to apply for the 2-year visa as your wife, which seems the honourable and legal thing to do.

I don't know whether the Embassy would want to wait for the outcome of the JR case before issuing the visa. They might do, but on the facts as you state them we're looking at 2 different issues - 1) was the HO incorrect in law when they refused an extension, 2) is there a credible application for a marriage visa. If you fulfil all the requirements for 2, it is arguable that this can be considered in isolation, and it must be considered on its merits. There's nothing you've said that indicates she has committed any immigration offence, and she's showing good faith by going back and applying there.

But when she gets back to Thailand, why don't you test the water by asking them? I'm sure someone here could give you the name or email address of someone at the visa section in BKK.

Whether or not you abandon your JR case is really a matter between you and your legal reps. There might be some important point of law which has to be pursued, but presumably it's your money they're playing with. By returning. she's sacrificing the opportunity to make an application here if she wins, but of course if she loses she's no worse off by returning before then, which is what she wants to do anyway.

Hope this helps.

Many thanks for you imput.

My GF was married in BKK previously and subsequently dovoiced in the Royal Thai embassy in Hong Kong. Everything correct and consistant with Thai law. She presented her Thai divorce to the HO in BKK, it was vetted and accepted and fiancee visa issued. Upon submitingto to the General Regstry office in the UK we were told that BKK made a mistake. Whilst the GRO accept that the Thai divorce is legal it is not recognisable in the UK (As it was granted in an embassy and not in the Family court in HK). We have an email from Mr Grant head ofthe visa section in BKK advising us that we must resolve the divorce recognition issue with the UK first before we and apply in Bkk for another visa, even if we were to come over and get married in Thai law. The only solution was for her to get redivorced in the UK courts, which we have now done. Therefore we have now made the original divorce caperble of recognition in the UK.

I think one of the most interesting point you raise is that even though she has returned late , she is returning at the earliest opportunity after the UK divorce which demonstrates a high degree of good faith. Incidentally the FLR(O) Visa extension on compationate grounds was refused because some shmuk in the HO thought she was trying to change the terms of her initial visa when infact we were simply asking for a six month extension to enable use to fullfill the original criteria of the fiancee visa and marry. The academic excercise of processing a divorce though the UK court was based on advice from the GRO to make the Thai divorce caperble of recognition. Whilst it is possible to get married twice it is only possible to get divorced once, a fact with seemed to escape the comprehention of the case officer at the HO.

Thanks for you comments

[Eff1n2ret]

Ah, yes, I remember seeing your thread on the "catch 22" divorce thing.

Just one further point. Her passport will show that her visa expired and she was refused an extension. There seem to be immigration officers on embarcation controls these days, at least at the major airports. There certainly were when we went out of Heathrow in November.

To save some overzealous IO serving her with a notice on the way out that she's an overstayer, she should carry some of the paperwork showing that she has an ongoing JR case (so perhaps best not to abandon it before she leaves). That way it should prevent some aggravation which would be irrelevant in the long run, but you could do without.

[yorkieb]

Ah, yes, I remember seeing your thread on the "catch 22" divorce thing.

Just one further point. Her passport will show that her visa expired and she was refused an extension. There seem to be immigration officers on embarcation controls these days, at least at the major airports. There certainly were when we went out of Heathrow in November.

To save some overzealous IO serving her with a notice on the way out that she's an overstayer, she should carry some of the paperwork showing that she has an ongoing JR case (so perhaps best not to abandon it before she leaves). That way it should prevent some aggravation which would be irrelevant in the long run, but you could do without.

Yes that Catch 22 thing was us.

very good point about embarkation..... I didn't know that. I will arm her with chapter and verse.....Thanks.