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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi There I entered the UK in 2009 on an Ancestry visa in

Resolved Question:

Hi There

I entered the UK in 2009 on an Ancestry visa in my South African passport. The visa was valid for 5 years. My wife and son accompanied me on dependants visas, also valid for 5 years and also on a South African passport.

In 2010 I applied for and was granted British citizenship, based on my Father being British. I then got my British passport. We did not change my wife or sons visas, as they were still valid for the 5 years.

Also in 2010, my wife and I seperated, and she no longer lives with me, and is not dependant on me. My son still lives with me. I have not informed the UKBA that my wife is no longer living with me, as she is my sosn mother and I dont want to do anything that might result in him not being able to see his mother.

My wife now wants to visit her sister in Italy, and has asked me to provide her with copies of our marriage certificate, my South African passport and the ancestry visa that I used to enter the UK, for her to submit in support of her visa application for Italy.

My Questions are:

1. Does the fact that I have been isuued a UKpassport mean that the original Ancestry visa has been cancelled?
2. If the Ancestry visa has been cancelled, how does this affect my wife and sons visas, as they are here based on being a dependant of an ancestry visa holder, not a UK citizen?
3. Am I legally obligated to notify the UKBA that my wife is no longer living with me or dependant on me?
4. If so, what is the penalty?
5. Am I obligated to privide my wife with the requested copies of my South African passport and UK Ancestry visa?
6. If it has been cancelled, or based on the fact that my wife is no longer living with me or dependant on me, would I be commiting an offence by giving her copies of my South African passport and UK Ancestry visa?

I am happy to help my wife with her visa and in fact to remain in the UK, but I won't do anything that puts myself ant risk, especially as my son still lives with me.

I'd appreciate your advice.

Thanks
Andrew
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 3 years ago.

Hi

Thanks for your question.

To enable me to answer your question could you please respond to the following:-

  • 1. Please confirm that your wife currently has a ancestry (dependent) visa which is valid until some time in 2014
  • 2. Have divorce proceedings been issued

Kind regards.

Tom

Customer: replied 3 years ago.

Hi There

 

Yes, my wife is currently on an ancestry (dependant) visa valid to June 2014.

 

No, we have not started divorce proceedings as yet. Foolishly, I suppose, the plan was to remain married until she is in a position to apply for ILR in 2014. How we were going to get around the fact that she no longer lives here etc., I'm not sure.

 

Hope that helps.

 

Kind Regards

Andrew

Expert:  Thomas replied 3 years ago.

Hi Andrew,

 

Thanks for your Question. It's a difficult one to pick through unfortunately.

 

If you have obtained a UK passport then your earlier ancestry visa would have been been cancelled had the UKBA become aware. At the point of obtaining your passport your wife should then have applied for an in-country spouses visa (ie. Settlement) if your marriage was still subsisting.

 

It would be best if you both regarded your separation as a temporary separation and not the ultimate end of your marriage for now.

 

In the long term, you can apply for further leave to remain for your children on the basis of you having a British passport and living in the UK. The problem with this is that when you do you will open the can of worms with your wife's status. If the marriage is no longer subsisting then the UKBA will consider the status of your wife when your children's leave to remain is considered. They will hold that she does not technically have leave to remain because your marriage is no longer subsisting. She would then have to apply for discretionary leave to remain on the basis that he children may be here after being granted further leave to remain. This is tricky and not guaranteed, so you will all have a fight on your hands.

 

If you do genuinely reconcile then she can apply for ILR but this will not be successful if you are living at separate addresses.

 

You are supposed to report and change in circumstances to the UKBA. If it is only a temporary separation then you could argue that this is not a material change in circumstances.

 

In terms of your wife's application if you pass your SA passport to her then she could apply with it but if the UKBA found out then you would face some tricky questions on why this was submitted and not your passport. You could rely on this being your "honest mistake" on the basis of your misunderstanding the rules and would be unlikely to face any penalty in this regard. Your citizenship would not be revoked, this only happens generally where it has been obtained by fraud.

 

Sorry it could not be better news.

 

 

If this has been useful please kindly click accept so that I may be rewarded for my time. It will be gratefully received and you will be free to ask follow up questions.

Kind regards,


Tom

Customer: replied 3 years ago.

Hi Tom

 

To clarify:

 

If my Ancestry visa has been cancelled, what is the position with my wifes visa, as hers is as a dependant of that visa? Would hers still be valid?

 

If we did not change her visa when I receieved my UK passport (we didnt), will this affect her ILR application in any way, besides the fact that we are no longer living together?

 

In her application for ILR, would I need to sign anything, and if I knowing sign to confirm that we are still together when we are not, am I again putting myself at risk?

 

The odds of us reconciling are between none and zero, as the basis of our seperation is that she had an affair. I am involved in a relationship with someone else, she has rented her own home and signed a lease agreement etc., i.e. we have gotten on with our lives. The only millstone still around my neck is her status in the country. I'd appreciate it if you could, to put it bluntly, tell me what I should be doing.

 

Many Thanks

Andrew

Expert:  Thomas replied 3 years ago.

Andrew,

 

Your wife's visa would have been cancelled if the UKBA were aware that you have been issued a UK passport. If you applied for this directly from the passport office then they would probably not have cancelled it.

 

If the marriage is not subsisting then it would affect her ILR application because they will require it to be supported by you as it is a term of her ancestry visa that your marriage is still subsisting.

 

You would have to support any application she made for ILR, if you did when the marraige is not subsisting then this would be an offence for which you could be subject to criminal proceedings. The point is that her application for ILR is not likely to get that far becuase the UKBA would do some digging and find out about your UK passport and therefore that they are entitled to curtail ancestry visa.

 

If there is no chance of a reconcilliation then I would suggest you go and see an immigration solictor together about 1) securing your child's leave to remain here first on the basis that their father is a UK citizen and then 2) applying for discretionary leave to remain for your wife relying on article 8 grounds (right to family and private life) not on the basis of her marriage to you but rather on her being the parent of the children.

 

It's a very complicated situation and in order to secure your children's and wife's stay here (without reconcillation) you will need an immgiration solicitor to act on your behalf.

 

You can find immigration solicitors in your area via:-

http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law

 

 

Trust this clarifies, if so please click accept. I will continue to answer your follow up questions.


Kind regard,

 

Tom

 

 

 

Thomas, Solicitor
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Experience: BA (Hons), PgDip, Practising Solicitor
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