An overstayer is a person who does not have any legal basis to remain in the UK. An overstayer can make an application for discretionary leave (as below). If you are an overstayer who is married to a person settled in the UK or a person with leave to remain in the UK then this will make an application for discretionary leave particularly stronger.
A discretionary leave application is just that: a person asks the Secretary of State to exercise her discretion in their favour so that they may remain in the UK.
Discretionary Leave is granted outside of the Immigration Rules and often includes claims made on a human rights basis, but it can also be granted in cases where a human rights claim fails.
Article 8 of the Human Rights Act 1998
One of the most common grounds argued by a person is his or her rights under Article 8 of the Human Rights Act 1998 which provides that authorities must have respect for an individual’s private and family life.
A public authority cannot intervene in an individual’s private or family life except in the interests of national security, public safety or the economic well-being of the country. Therefore, people who are in the UK who have overstayed their visas and have formed a relationship with a British citizen or somebody who has a permanent legal status and even perhaps had children with them, are considered to have ultimately established what can be argued a family life in the UK. Such persons can successfully make an application for legal residence in the UK.
Making an application for Discretionary Leave
If you feel your case has human rights grounds and want to look into the possibility of making a Discretionary Leave application, you can AS Immigration Lawyers.
It should be noted that if an application for discretionary leave is made after a visa has expired or at a time when the applicant had no legal status to remain in the UK, then they will not be given a right of appeal in the event that the Home Office refuse their case; therefore it is best to apply for discretionary leave whilst you still have a valid visa.
The Home Office have recently shown great efficiency in deciding Discretionary Leave applications. It currently takes between 2-6 months to receive a decision.
How to successfully apply for Discretionary Leave
A good discretionary leave application will seek to argue a person’s circumstances and backgrounds such as their:
• length of residence in the UK;
• strength of connections within the UK;
• personal history including character, conduct and employment record;
• domestic circumstances;
• previous criminal record and nature of any offence for which a person has been convicted;
• compassionate circumstances; and
• any representations received on the person’s behalf.
An application for Discretionary Leave will be strengthened by one thing alone: evidence.
Evidence includes letters of support from friends and family (this is particularly important where a claim under article 8 of the Human Rights Act is being made) as well as the support of your local M.P.
Where the person is married, they should include their marriage certificate, children’s birth certificates, children’s school records over the years, and photographs of themselves with friends and family over the years.
It is important to show that the person has integrated his or herself in British society. For example, they may have benefited from further education and obtained educational qualifications or they may have been working and have made tax contributions.
Call an AS Immigration Lawyer now on 07412 551 385(25 hrs) or 0845 2697864.