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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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FAO Tom, A couple of follow up questions regarding my wifes

Resolved Question:

FAO Tom,

A couple of follow up questions regarding my wife's future ILR application
1. Residence requirement. Although my wife's first visit to the UK will be Aug 23rd, she plans to continue her job in Brussels until end of December 2012. She will be visiting me in the UK over the weekends from now to December, roughly 3 months. Starting Jan 2013 she will quit her job in Brussels and stay in the UK permanently. According to the UKBA website (copied below ***), there is no strict residence requirement for the ILR application, yet a stricter requirement for the citizenship application. In our case, do you think my wife would still qualify for ILR in 2 years time in Aug 2014?

*********************************************************
Time spent outside the UK

The Immigration Rules do not say that you must have been in the UK for the entire 5 years of your visa or permission to remain. Your application to settle here will be judged on its merits, taking into account your reasons for travel, the length of your absences, and whether you and your partner travelled and lived together while you were outside the UK. If you have spent a limited time abroad in connection with your job, for example, this should not count against you.

However, time spent outside the UK does make a difference to applications for British citizenship. If you apply to be naturalised as the husband, wife or civil partner of a British citizen, you must show that you have been living in the UK for the last 3 years (the 'residential qualifying period'), and that you have spent no more than 270 days outside the UK during those 3 years. Also, you must have spent no more than 90 days outside the UK in the last 12 months of the 3-year period. (We have discretion to allow absences above the normal limits in some circumstances.)
*********************************************************


2. Timing of ILR approval.
If my wife applies for ILR in Aug 2014 by post, and the ILR is granted in October 2014. (not uncommon for this to take a few weeks or even months). Would she qualify for citizenship still in Aug 2015 (3 years in total since she came to the UK) OR in October 2014 (does it have to be 1 year after ILR is granted?)

Part of the reason I'm asking this is also due to cost. ILR application by post is cheaper (£991 today) but slower, yet ILR application in the public enquiry office is more expensive (£1377 today) but if approved is granted on the same day.


Thanks!

Jake
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 2 years ago.
Hi Jake,

How many days will she spend in Brussels during the period from when she first comes here to when she finished her job and moves permanently?

Tom
Customer: replied 2 years ago.

Tom,


 


Here is our travel plans until end of December:


 


She will be in UK on Aug 23 and permanently be in the UK on Dec 23 (so this is topline 4 months)


In October we will both be in Asia for 3 weeks for our wedding.


In the middle of all this she'd be in the UK for maybe 4-5 weekends.


 


 


Jake


 


 


 


 

Expert:  Thomas replied 2 years ago.
Jake,

Sorry, I assumed you are already married because you refer to your "wife" and not "fiancee" but you refer to your weddmng in Asia. Can you clarify please? Is this a ceremonial wedding only?

Do you mind calculating the days and just giving me an approximate number of days that she will be out of the UK?

Tom
Customer: replied 2 years ago.

Tom,


 


Yes, it is just a ceremonial wedding in Asia. We have had the legally binding wedding already.


 


Approximate number of days would be 110.


 


Jake

Expert:  Thomas replied 2 years ago.
Hi Jake

Thanks for your patience and requesting me.

There is no fixed time threshold that a person should remain in the UK in order to be eligible to apply for ILR. Each case is judged on it’s facts but generally I’ve found that person who have spent more than approximately 35-45 days in any 12 month period outside the UK run in to problems.

There is a bit of flexibility in that if they are required outside the UK for a period of time because of their UK employer OR because there were exceptional compassionate circumstances that applied (eg. health of family member outside the UK) then you can get the caseworker to exercise their discretion to disregard these periods of time. However, if she is to spend that length of time out of the UK working for a job outside the UK then this time would certainly not be disregarded.

This means that when she reaches the end of her visa she will have to apply for Further Leave To Remain, rather than ILR, wait another three months of so and then apply for ILR.

Once she has ILR she can apply as soon as she hits her three year period assuming she otherwise meets the eligibility criteria. There is no requirement that a spouse of a UK national needs to have been free of immigration time restrictsion (ie. hold ILR) for a period of 12 months at the date of the application for naturalisation as you will see from the following link:-
http://www.ukba.homeoffice.gov.uk/britishcitizenship/eligibility/naturalisation/spouseorcivilpartnerofcitizen/

The requirement is only that the spouse must be free of immigration time restrictions at the date the application for naturalisation is made:-

Sorry it could not be better news.

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Kind regards,


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