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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 I am here on the following visa: Settlement Spouse CP/

Resolved Question:

Hi I am here on the following visa: Settlement Spouse CP/ (Kol Req), if I understand this write this means that I can apply for my ILR right after I completed the Life in Britian Test without waiting the two years (Applied before 9 July 2012).
I was here on a previous occasion and was granted ILR but due to been out of the country for a few years i lost it.
I am Married to a British Citizen and in this time our son was born here in the UK so that makes both my husband and child British by birth and both carry British Passports.
We moved back to South Africa in 2002 when our son was only 18 months old, in this time we discovered he is Autistic and got learning disablities, we decided to come back to the UK for a better future for our son.
Now this is my quistion we are getting child benefits for our son as well as DLA (disablity living allowance). Will this affect my ILR application.
This is quite confusing as it say there no resource to public funds but yet my husnband and son is both entitled to this as they are British, and the claims is for our son not for one of us? As far as i remember it was only my husband name and national insurance number on the appliation and the letter refers to our son but because he is under 16 it say refering to my husband as point as contact.
My visa is valid from the 01/06/2012 to 01/08/2014. I am doing my test on the 27 and than will apply for ILR
Entered the country on the 2 July 2012
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

You will still have to be in the UK on your current visa for a period of two years from the date it was granted before you can apply for ILR, however you will not have to meet the 5 year requirement that the post-9th July 2012 rules impose.

If you made your application for a spouse visa prior to 9th July 2012 then your visa was granted under the old rules.

This means that you can apply for ILR once you have been in the UK on this visa for two years. You do not have to make a further extension to the visa like the applicants under the new rules have to make. You will see that the position is confirmed on the following page:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/before9july/settlement/

See the first bullet point under the heading titled “Applying for Settlement”.

You will also be able to apply for ILR any time between 2 July 2014 and the date your visa expires because although you slightly delayed your entry the UK provided the delay was not longer than 3 months then you will still be able to apply. Please see the above link and the paragraph titled “If you delayed your entry to the UK“

The requirement is that you should have no resource to public funds generally taken to mean that no additional public funds should be claimed as result of you being here. So, if your son and his father are UK citizens then they would have been entitled to these benefits and presumably would have claimed them if you were not here. Therefore, I doubt this will be an issue provided that you demonstrate these were claimed on behalf of your son.

However, to avoid confusion I would attempt to avoid your name being used in order to claim them in the future and ideally have them transferred in to your husband’s account.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 1 year ago.

Ok I am not sure if you are fully aware of the difference on the different type of visa’s if I was issued with only a SpouseCP/ ...(surname) than I would have completed the 2 Years but Because I was Married for more than 4 years and met all the other requirements except the Life in the UK test i still get issued with a 27 month visa but in this time at any time after the life in britian test been completed i can apply for ILR


 


My visa is Settlement spouse/CP (Kol req) issued before 9 July 2012


 


You can read all about his on the following sites


 


http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/set/set16/


http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter8/section1/section1.pdf?view=Binary (pages 6 and 7)


 


I am a bit concerned as at a previous occasion I ask about the KOL endorsement and also as i already basicly new just got it confirmed now you give me a dif answer

Expert:  Thomas replied 1 year ago.
Hi,

Sorry, I must have misread your initial post.

You are correct, provided that you have been married for a period of 4 years to your husband prior to making the application then you would have received the type of leave to remain that you refer to.

This means that if you complete the test then you should then be eligible for ILR immediately.

My mistake, I interpreted your question incorrectly.

The advice as to the benefits element of your question remains unaffected.

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