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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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My husband is British and I am Canadian. We are currently living

Resolved Question:

My husband is British and I am Canadian. We are currently living in Canada. We used to live in the UK after we were first married, and I had a definite leave to remain visa (I think that's what it is called; it was the probationary visa). We only stayed in the UK for 9 months before going to Canada. We have been out of the UK since 2010. We would like to go back to the UK but are unsure of the best route. Can I reapply for a new visa that I used to have? Also, my grandmother was born in England and immigrated to Canada when she was 3. Can I apply for an ancestry visa instead, and then we don't have to worry about my husband going back to the UK first and setting everything up and satisfying income requirements, or does my being married to a British citizen affect my ability to get an ancestry visa. And lastly, our 2 children were born in Canada. Do I have to apply for immigration for them, or do I just apply for their British passports? Thanks!
Submitted: 10 months ago.
Category: UK Immigration Law
Expert:  Thomas replied 10 months ago.
Hi

Thanks for your question.

What is your husband's date of birth and was he born in the uk please?

Kind regards

Tom
Customer: replied 10 months ago.

Hi Tom,


 


He was born in 1982 in Oakham, England.

Expert:  Thomas replied 10 months ago.

Hi,


Thanks for your reply.


If your husband was born in the UK before 1983 then he will be a UK citizen otherwise than by descent (unless he was born to parents who had diplomatic immunity, which I assume he wasn't). Confirmation here:-

http://www.ukba.homeoffice.gov.uk/britishcitizenship/othernationality/Britishcitizenship/borninukorqualifyingterritory/

 

This means that he is free to pass on his citizenship to such of his children that are born outside the UK. This means that your children are UK citizens. However, the type of citizenship they have is "citizenship by descent", which means that they have exactly the same rights as other citizens except that they will not be able to pass on their citizenship automatically to their children (ie. your grandchildren) if they are born outside the UK.

 

If you previously obtained a spouse visa then you would have been given leave to remain. If you left the UK after 9 months then you would not have fulfilled the residential requirements to apply for indefinite leave to remain (two years was required as a probationary period at the time). If you were in your probationary period then this would have lapsed now, so you would not be able to pick it up from where you left of (so to speak)..

 

Upon application for a spouse visa if the spouses had been married for 4 years then they may have been given "indefinite leave to remain", which is the permanent right to remain in the UK. I assume this does not apply to you.

My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.

Kindly rate my answer if you are satisfied with the information I have provided.

Kind regards,


Tom

 

 

There is nothing precluding you from applying for an ancestry visa provided that you are eligible for one. However you would of course have to prove that your grandmother was born in the UK.

Customer: replied 10 months ago.

Hi Tom,


 


Thank you for your wonderful reply. Just one more point to clarify-we will have been married for 5 years before we reapply for a visa. Does automatic indefinite leave to remain still exist? I'm under the impression that no one gets this automatically anymore, and a probationary period is still necessary. Am I correct?


 

Expert:  Thomas replied 10 months ago.

HI,


You are correct, I'm afraid. The right to automatic indefinite leave to remain has been repealed so a probationary period is required for all spouses now.

 

I would be grateful if you would kindly rate my answer.

Kind regards,


Tom

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