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Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7617
Experience:  BA (Hons), PgDip, Practising Solicitor
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Good morning. My wife was granted a spouse Settlement visa

Customer Question

Good morning. My wife was granted a spouse Settlement visa marked Settlement, Spouse / CP (KOL req). She has now passed her Knowledge of life test. When we applied for the visa from the Philippines it seemed clear that if she got this test she could immediately apply for Indefinite leave to remain. However, there now seems to be some ambiguity as to whether she is still required to be present in the UK for 2 years before applying. The UKBA website contains documents which seem to imply she can apply straight away, but they also changed the wording of rule 287(a)(i)(c) to have an 'and' instead of an 'or' which seems to mean she has to wait 2 years. Can you clarify? Thanks
Submitted: 5 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 5 years ago.
Thanks for your question.
To enable me to answer your question could you please respond to the following using the same numbering:-
1. Had you cohabited for any period of time before applying for the spouse visa (settlement)?
2. From when until when is the visa valid for

Kind regards.
Customer: replied 5 years ago.
Hi. Yes, we have been married for 9 years and living together all that time, hence we were granted our visa under section 282 (c) of the immigration rules. We have had two previous visits to the UK, for 9 months and 11 months respectively.
The visa is valid from 1st July 2011 to 1st October 2013. We would like if possible to get the ILR in less than two years, since we intend to return to the Philippines, but make periodic visits back to the UK before eventually settling here for our children's education when they are a few years older.
Expert:  Thomas replied 5 years ago.

So you had cohabited as a married couple for four years (in fact longer) immediately preceding the application for a spouse visa?

When approximately is it intended that you will return to the Phillipines and when approximately after this do you suppose you will return to settle permanently in the UK?

Kind regards,

Customer: replied 5 years ago.
We plan to return to the Philippines at the end of the current school year i.e. probably the 1st week of August 2012.
We are only thinking of permanent settlement here in maybe 9 or 10 years time, but knowing that the laws keep changing we thought that if possible getting a permanent visa status now would be better than waiting.
Expert:  Thomas replied 5 years ago.
HI Brian,

Thanks for your reply.

Basically your wife could have received ILR upon determination of your application for a spouses visa if she had passed the KOL test because you have been married for 4 years prior to the application and had cohabited for that length of time (rule 281(i)(b)(i). Because she did not submit this she only received a spouse visa.

Under a strict construction of the wording of the above clause she could not now submit her KOL and obtain ILR because you will see that it is a effectively a requirement in the pre-amble that the applicant is seeking admission to the UK. She already has admission to the UK because she is on a spouse visa.

I cannot see that it would be hugely advantageous either, because indefinite leave to remain is there for persons who are to live permanently in the UK. If a person holding ILR moves from the UK and stays in another country permanently for considerable periods of time then the ILR is revoked/curtailed so it’s not permanent as one might think if you are not living in the UK permanently.

Even if you could apply for ILR now by submitting the KOL (which in my opinion you can’t) then after you have gone back to the Phillipines she would face awkward questions if she attempted to come to the UK for visits and the ECO saw that she has been outside the of the UK for a time much longer than one would expect of a person supposed to have settled in the UK and refused entry stating that she should apply for either a visitor’s visa OR a returning residents visa:-

In my view it would be best for her to remain on her current visa. Return to the Phillipines, update the UKBA of the change in circumstances, then apply periodically for visitor’s visas as required. Upon an application to return here permanently apply for settlement but enclose the KOL which she has passed closer the time and receive ILR upon your return when you are to permanently settle-
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Kind regards,

Thomas and other UK Immigration Law Specialists are ready to help you
Customer: replied 5 years ago.
Thank you, XXXXX XXXXX've probably just saved us £972 applying for ILR.
Expert:  Thomas replied 5 years ago.
Hi Brian,

No problem. Obviously, you will have to pay a fee when you come to apply for ILR from the Phillipines though.

Kind regards,