Help!! overstayed Fiance visa, now awaiting spousal visa

 Please help, as  I have not found any threads on this forum regarding this issue. I do apologize in advance, its a bit lengthy.

A bit of history first. My husband and I got engaged after about two years of a long distance relationship. Found out we  were expecting a baby 8 months after that. I made the decision to have the baby here in the US since I was working, had decent insurance and two older children from my previous relationship. It gave me time to discuss with them and fiance  about the best options for us all.  (Albeit my eldest was 20 and independent for the most part I still felt it important to include him).  

The decision was made that I would move to UK after a lot of tears and back and forth. It wasn't a decision made lightly but in the end we found it would be easier for me to enter UK than Husband to enter here (financially speaking). He owned a house and made considerably more than I did.

 I applied for a fiance visa in Jan 25th 2011 and by Feb 11 received an email it was granted . I also applied for a UK passport for the baby but it took 6 months to receive it. Which ate up most of my UK visa time.. leaving me with just 18 days left on it. Baby was already a year old when we headed across the pond. Anyway arrived in UK Aug 1 and immediately made arrangements to get married at register office. Time was of the essence. Could not get a date before Sept 24, 2011 even though I explained the situation.

The problem is I never changed my status after marriage. I mentioned to DH several times that we needed to take steps to change visa, he said not to worry or they'll probably send some notice etc..etc...  Well I eventually gave up, stop mentioning it and settled into UK life (somewhat). Within two to three months of marriage found out we were expecting our second child. Another unexpected surprise.

I missed my family and friends and wanted to spend Christmas 2012 in US, that's when I decided to contact border control to find out if there would be any problem re-entering the UK once I left. I was naively expecting to hear " you overstayed so you will need to pay a fine and submit documents within 10 days etc.." I never expected to hear I needed to go back to US and re-apply from there or be denied. I explained I was married and we had two children 23 months and 2 months old, owned our own home, and never used any public funds. Answer was the same. (We did use the NHS for the birth).  

So I'm back in US now. Traveled with children in Nov, applied for spousal visa in May. I have not heard anything since June 3rd. stating my application was received in Sheffield. I sent it through NY and not priority. I'm hoping that's why it's taking so long. I'm very worried there could be a problem. I have read they don't generally keep families apart, but based on the new rules that may have changed.

Does anyone have any idea what i should expect or time frame? I realize we made a foolish mistake but will they really deny a spousal visa? If that's the case then we need to make other plans in a hurry,  but the wait is awful. Not knowing is the worst part. Please any information will be helpful.

Thanks

Your visa application will take considerably longer than a regular application because of your lengthy overstay. They will have to take more time to investigate the situation surrounding the overstay. It's not possible to predict how long it will take, unfortunately. Hopefully you met all of the requirements and demonstrated that via the supporting documents.

I also realized you used the NHS as well for your child's birth. That will also take time to review as you were not eligible to use the NHS as an overstayer.

Why did you not apply straightaway when you arrived in November instead of waiting until May?

This is speculation, but I would imagine that like this fellow UK Yankee member your visa will be denied due to NHS debt (unless you paid for the services you received during your prenancy and birth).  The delay may be that the Home Office are requesting the NHS to pull together a bill for the services you received.  Purely speculation of course. 

http://talk.uk-yankee.com/index.php?topic=80340.0

Unfortunately, you've got a lot troublesome issues.  You married without a proper visa as your fiance visa had expired, you overstayed by over a year and you  used the NHS possibly without paying for their services which you were not entitled to.  Your case is hardly straightforward and will require extra scrutiny. 

Why did you not apply straightaway when you arrived in November instead of waiting until May?

 didn't apply right away for two reasons. The main one being I wanted to spend time with my older boys  who stayed in the US and I missed them dearly. Secondly I was hoping to spend the early part of summer here, as my previous summer in the UK was cold and horrible.. it rained almost the entire summer.

If it's required to pay back NHS, we are prepared to do so, but it was all an honest mistake. I was under the impression that it was permissible. Apparently DH seems to know less than I do.  I was very clear on my application that I used the NHS. I feel foolish for not researching it myself. Now there's nothing more we can do. The whole thing doesn't look good

Thanks for your info. I'm hoping it's just taking longer as you said.

This will all be fixable in the long run, but you should prepare yourself for the possibility of a refusal.  If they discover you have more than £1000 in NHS debt, then I'm afraid refusal is automatic and IOs have no discretion.  But once you've paid the debt, there's no reason you can't apply again and be approved. 

  If they discover you have more than £1000 in NHS debt, then I'm afraid refusal is automatic and IOs have no discretion.

Thanks for the feedback.. but I never thought refusal is automatic in all cases. Aren't all cases examined and approved or disapproved based on their own merits?  It just seems completely unfair. I was assuming once the debt is paid.. it's then approved. I can't  imagine having to go through the whole process again, pay application fees and the waiting game all over again. I realize there are consequences but it puts incredible hardship on families. Surely there must be some discretion?  I'm feeling hopeless

Take a look here and read through the many documents at the bottom.

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/consultations/nhs-debtors/

You definitely have a complex case but you can overcome it and return to the UK. Unfortunately it will take a bit of time and money.

Well, they cover their backsides with the old "compelling compassionate circumstances" lark, but effectively there is no discretion.  They take NHS debt very seriously now.  UKBA considers it the applicant's responsibility to know the conditions of their leave, and if they choose to breach those conditions then the consequences are what they are.  But although it may take you some time to sort all this out, your situation is in no way desperate.  Once the debt is paid, there's nothing stopping you from getting a visa.  It will just take time. Plus there's always the chance that your IO will be lazy and not investigate the situation, then maybe the visa will be issued.  Stranger things have happened. 

You can read the guidance on the subject of NHS debt here.  Scroll down to MED18.

What you should be doing is contacting the hospital or mid wife who handled your birth, explaining that you weren't entitled to treatment and asking to be billed immediately for the services and paying for them.  

Take a look here and read through the many documents at the bottom.

After reading through the links that a few of you have posted.  I'm not sure which category applies to my case. Some links state automatic refusal, then I find this which I've copied and pasted.



Pregnancy and Maternity

All maternity care is
considered as immediately necessary treatment and would never be denied
even if chargeable. An outstanding debt for previous maternity services might however be taken
into account should the person come to light in the course of further
applications to enter or
remain.
The UK Border Agency will not decide
whether treatment is provided or a charge applied
[/i]
So if using the NHS is not used against me, will my overstay be a reason enough to deny me? All my documents should satisfy the criteria requested.

 

That just means that the NHS would never refuse to treat a pregnant woman, even if she couldn't pay.  I doesn't mean that no debt incurs or that the debt won't be considered in future visa applications.  In fact, it basically says that the debt will be taken into account when the person "comes to light in the course of further applications to enter or remain."

The overstay alone will not lead to refusal.  But NHS debt will.  I think it comes down to how closely they investigate your case. 

I received notice yesterday stating I'm refused entry into UK..WHAT!  And not based on any reasons I thought  but because I have not shown enough evidence of a genuine relationship.   I'm stunned, gutted, confused and frustated!!!  6 years, two children and a marriage is not evidence of a relationship? I was previously given a fiance visa. Doesn't that evidence I provided then count for something? Am I missing something here? I don't think they even considered the children. Is it possible they are just using that as a reason to refuse?

Does anyone  know what sort of documents to send proving a relationship. I presented marriage certificate. We don't have utilities in both names as I stay home with the children. We have a few new emails  but we chat mostly on skype or via phone (I have tons of emails from earlier in our relationship). What are they seeking? Surely they don't think I would have left family, friends, my job etc.. here in US just to move to UK for the heck of it.

Any advice? Please help! I have 28 days to appeal.  

So do you have the actual letter in hand?  It's best if you can type out exactly what the reason for the refusal is.

Yeah, I'm guessing it's intervening devotion that was missing, you said you left the UK a while ago, but only applied for a spouse visa now.  Also, as geeta said, if you can post the exact wording of the letter, with personal details redacted, that will be helpful.