Chinese Spouses Failed ILR - What should we do now?

I am a British and Irish dual citizen and have lived in the UK all my life. My wife is Chinese and we married in Dec 2004.

She was here in the UK on a student visa at that time doing a masters degree. She then received a 2 year limited Leave to Remain (LLR) as my spouse which expires in March 2007. She applied for Indefinite Leave to remain in Feb 2007 but has just been refused.

The reasons given were as follows:-

1: They said out marriage is not subsistent.
2: They said we are not going to live together permanently.

Because my wife has business interests in China she had to go back regularly to see to that and also her Mother has been very unwell with diabetes. During the 2 year period she was in the UK only for 4-5 months as she came and went 5 times in total between the UK and China.

To say our marriage is not subsistent (ie. does not exist) is a HUGE INSULT to me and her! Ours is a genuine marriage and we intend to live together in the longer term and start a family. We only seek financial security for the future and so work very hard to achieve this. For the last 5 months I have been working away from my UK home in the South of England.

What should we do now? Appeal, ask them to re-consider or apply for another limited leave to remain.

I am so disgusted I feel like tearing up my British passport and living on my Irish one! Even though I am British born & bred!

Thanks very much for any advice offered!

Hmmm... sorry to hear about that!

Now, i am thinking, if ILR rejected, why not your apply for a FLR (for 2 more years maybe!) as a Spouse visa and then attempt for ILR again at the end of that 2 years!

But in any case, i have never heard of any case succeeding, based on appeals with UK immigration. So i would not recommed it for anyone.

My wife's ILR appointment is in next week and we have accumulated all documentation as much as possible with evidence sorted out in different folders, each for an year plus a separate folder of eveidence of contact while my wife was in India during pregnancy.

I am now worried with too many spouse ILR cases being rejected.

I am not sure what is going on these days, but the message seems ot be very clear: Long term residency is to be made impossible.

I am just thinking what we will do if my wife's ILR is rejected.

The only thing to do is to let my wife go to India with our baby (she is 10 months old now), and then i will slowly wind up my (very established) software consultancy company here in the UK, and move to India (Doh! I am a British citizen now! and i lost my Indian nationality two years back ) Now i feel for it, since i will have to move to India anyway if my wife's ILR is rejected. I won't appeal or apply for a FLR, since i will want to wind up my business here and move to India because I will take it as an insult if they questioned our marraige and there is no point coming back to UK ever again, with such dis-respectful people around here.

In economic terms, they will lose one very prosperous business man from this country. We have nothing to lose however!

Anyway I have got the Indian PIO card, so i can settle down in India - no visa worries for me though!

Anyway, let's see... what is in store for us - next week!
I am slowly losing hopes now, seeing so many recent spouse ILR cases failing!

To say our marriage is not subsistent (ie. does not exist) is a HUGE INSULT to me and her! Ours is a genuine marriage and we intend to live together in the longer term and start a family.

Could it be that you simply failed to prove that the marriage subsists? What evidence did you supply to prove that the two of you are living together? How many pieces of evidence? Spread out over the whole of the 2-year period?

limey wrote:During the 2 year period she was in the UK only for 4-5 months as she came and went 5 times in total between the UK and China

Isnt it possible that they thought that your wife considered her spouse visa as one glorified visit-visa and hence the suspicion of "They said we are not going to live together permanently" ?

We provided lots of evidence that we lived together. The usual bank statements, bills, etc.. But these were mostly in our individual names. My wife even has a UK company registered here.

I think the main problem was the amount of time that my wife spent abroad. As if you can't really be married if you aren't sharing the same bed! So many married couples are forced to liveapart these days, mainly because of work financial reasons. We were planning for the future and trying to earn as much money as possible to secure that.

I'm an IT consultant and have worked on many IT projects, developing software which is of great importance in the defence aerospace industry. I am due to start work for the government soon. Right now I fell like telling the government where to shove it!

I feel like renouncing my British citizenship right now! My Irish citizenship will do just fine for me!

limey wrote:I feel like renouncing my British citizenship right now! My Irish citizenship will do just fine for me!

If you plan to head off with your wife to Irelend get ready to have some more "fun" with the immigration over there. Have a look at the Ireland forum to have a sneak preview of the "wonderful" time you might encounter. You have a far better chance if you are to stay here and use your status as an EEA national.

Thanks for the advice, Doc! But apart from there has been very little help at all!

Just to say that the IND advised my wife that she should apply for Indefinite Leave to Remain and said that if she failed then she could get Further Leave to Remain. Then when she was informed that she failed they deny all knowledge of what was said previously!

The IND are as incompetent as all the other UK government departments such as the Inland Revenue.

The IND said my wife should apply by post for ILR as it was too complicated to sort out at interview. So take that as a warning that you may well fail if it happens to you!

As her husband, I have not been consulted at all in anyway!

To say that our marriage does not subsist (ie. exist in Plain English) is a total insult! So much so that I may well go and live in China instead and take my skills elsewhere.

If I may add my 0.002p:

The 2 year spouse visa is a probationary visa in which period the couple are expected to live together as a couple if the "foreign" spouse is to go and get ILR.

In your case, even though you are still married and the marriage does exist, the fact that you and your spouse lived in the UK together as man and wife for 4-5 months out of the 2 year probationary period went against you. Put yourself in the immigration officer's shoes and tell me what you would do in their place?

There is nothing stopping your spouse from applying for a further limited leave to remain visa for 2 years as you still are both married to each other and if you spend more time together in this period and the marriage is still subsisting, I do not see why a successful ILR application may not be made.

May I also ask, did you both go together for the failed ILR application or did your spouse go alone? My advise would be to go together (and act all lovey dovey ) even if it is not required as this will help clear doubts that the marriage is not subsisting and that you and spouse do not intend to live together permanently.

Good luck

SMIT: I appreciate what you are saying. The application was done by post as they said it was too complicated to be done via interview! See my earlier post that this means the chances of you being rejected are greatly increased!

Though, I have a sneaking suspicion that if my Wife were from Australia or NZ and not China then she may well have been allowed in. Which smells of facial discrimination to me!

Update: As I have dual British/Irish nationality, I have enquired with thr IND about bringing my wife over using my irish citizenship. The big advantage of this is that it is FREE and not as discretionary!

That is a good tip for people hereis, if you have dual EU nationalities then use the non-British citizenship to bring your wife into the UK on a Family Permit for FREE!! Not £500 using your British citizenship which is just rip-off

smit wrote:the fact that you and your spouse lived in the UK together as man and wife for 4-5 months out of the 2 year probationary period went against you. Put yourself in the immigration officer's shoes and tell me what you would do in their place?

Smit, that was an amazing thing to say out loud. Even though I had thought of the same thing I dint do so as I dint know how to do it without being confrontational. You managed to pull it off without being provocative and there is a lesson in tact over here somewhere for me.

Limey, incase you are around in UK and not yet run off to China or Ireland to bless them with your high skills and talent, pls look into the fact that your wife may already be exercising her treaty right as a familly member of an EEA national since Dec 2004. Dont think that average of 2-2.5 months of residence/year is enough even through the EEA route.

Limey wrote: The application was done by post as they said it was too complicated to be done via interview!

Hi Limey,

So are you saying that having applied for ILR in post, your wife's ILR request was rejected??? - and then what happened? Did they not automatically issue an FLR for the 1.5 years to your wife?? I am told (based on my wife's recent horrible ILR experience at one of the PEOs) that if they reject the ILR request which you may make via post, they will automatically grant her an FLR for the gap period so she can be considered for ILR again at the end of that extension FLR!!!

Did they not give your wife that FLR for 1.5 years then??

Or is it that your wilfe will have to apply spearately for an FLR via post again? Please let me know, since i am in a similar position.

See my post today for our application details, here:

http://www.immigrationboards.com/viewtopic.php?t=14267

Brit: they told my wife that if she applied for ILR then if she failed then she would get FLR we would not have to pay twice. Otherwise, we would not have applied for ILR!

But after she failed the ILR, they denied all knowledge of saying that they said that! Now she is meant to leave the country!

The problem is each time you speak to them over the phone, you get a different answer because most of them don't know the rules themselves!

Doc: She can apply for a family permit from China using my Irish citizenship then it is FREE! I know it sounds crazy. Also, the Family Permit is more flexible and allows her to travel more.

In support of this , I am getting a residence permit for the UK using my Irish citizenship. Even though I am already British!

Also, the EEA Family Permit is more flexible as to what is regards a valid relationship in that you do not always have to have lived together since marriage. As in our case. But we have every intention living together in the future as we want to start a family.

Using my Irish citizenship also makes sense in that we intend to move to Ireland in the longer term.

Just to add that my wife doesn't particularly want to live in the UK at all. The only reason she wants to come here is to be together with me!

But after she failed the ILR, they denied all knowledge of saying that they said that! Now she is meant to leave the country!

So, from what has happened to your wife, i gather this:

They will advise the spouse to apply for ILR through post.
They will take their time until her current visa expires, then they will let her know that her ILR request has failed. ANd since hte date has expired for her current visa, she cannot apply for even an FLR(M) and so has to leave the country forcefully.

So, by learning from your experience, if my wife directly applied for an FLR(M) in-country, before her leave expires and without having to apply for ILR in post, she will have to be given the FLR (how many months i don't know), and hence they cannot trick us with their ugly trick of asking my wife to forcefully leave the country!

Am i correct in that???? What do you think.

Just so my wife does not go through the same trick tthat they played on your wife.

British: I think you have grounds for an appeal. You should do it. I believe the appeals can take a few months to occur so your wife would be able to stay here until then at least.

You should contact IND and just ask them what is the maximum amout of time you wife could be out of the country during the 2 years?

Let us know what they say.

Good luck!

Cheers Limey.

You should contact IND and just ask them what is the maximum amout of time you wife could be out of the country during the 2 years?

Actually we did ask that specific question and the reception girl said 2-3 weeks as holidays.

And teh supervisor said it depends on the caseworker who works on that case. They don't seem to have one answer across the board! Shame!

The supervisor lady in fact said that the reasons like we have : going away to India for having pregnancy in India and getting delayed because of medical reasons etc, they don't care and they woul donly take extrenous circumstances like death or trating a ill parent

I am now thinking of FLR (M) route.

I found some IND info that somebody downloaded onto this forum.

It said that if the spouse spent more than 50% of the time outside the UK during the 2 years (as in our case) then the ILR will be refused and FLR will not be offered at all!

Therefore British, you should be OK to apply for FLR. Good luck!

Cheers limey. We have taken an appointment for tomorrow, in person FLR (M) appointment. Hopefully she will get a full 2-years extension, but it may also end up as that gap filling excerceise - 5.5 months.

We are fine with both, anyway. Th eonly thing is cost: unneccessarily we will have to pay another £950 again for another extension around september, if the give my wife a 6 months extension.

I have updated my progress in the other thread as well here:

http://www.immigrationboards.com/viewtopic.php?t=14293

I will keep you all updated as to how it went, tomorrow!

limey wrote:Doc: She can apply for a family permit from China using my Irish citizenship then it is FREE! I know it sounds crazy. Also, the Family Permit is more flexible and allows her to travel more.

Why is that?

In support of this , I am getting a residence permit for the UK using my Irish citizenship. Even though I am already British!

You can't get a residence permit for the UK. However it is understood that dual British/other EEA nationals may sponsor through the EEA system if they wish.

Using my Irish citizenship also makes sense in that we intend to move to Ireland in the longer term.

Your wife's UK-issued EEA Family Permit will be no use in the Republic of Ireland.

Why on earth are you not planning to get your wife British citizenship as soon as possible? That's going to be the easiest way by far for her to migrate to the Republic of Ireland - you ought to know that the Irish immigration system as experienced by others is a nightmare.

Hi Guys,

Since many are reading this post to read teh progress of our case, i just wanted to keep this thread updated with the current state of our spouse visa extension process.

The updates are in my thread here:

http://www.immigrationboards.com/viewto ... 9976#79976

best regards.

Update: We went to see an immigration lawyer and discussed our case in a free interview. The outcome was that an appeal against the ILR refusal would have little chance of success due to my wife being out of the country too long during her 2 year spouse visa. Also, if we did appeal and it failed then it could adversely affect any future applications we might make.

Also, the appeal takes place in a Court Of Law.

Therefore, we will each get multi-entry visas to visit each other in the UK and China and when my wife's work in China ends (in a year or so) and she can then live in the UK permanently. Then we will apply for a spouse visa for her to live in the UK.

Thanks for all your comments. Much appreciated!

Cheers Limey, for updates.

Therefore, we will each get multi-entry visas to visit each other

What UK visa would that be? A tourist visa? or an FLR(M)?

Then we will apply for a spouse visa for her to live in the UK.

And this would be the VAF-1 settlement spouse visa (for 2 years) to be applied from China, is it?

So its only the FLR(M) that one cannot apply multiple times, but spouse visa from home country can be applied multiple times?? Have you confirmed this is possible? Just want you to be sure!

Good luck!

best regards.

British: It would just be a normal multi-entry tourist visa. In that time I would like to spend some time in China too.

In the future, when my wifes Chinese business commitments are completed, we will have to go thru the spouse visa or EEA Family Permit process all over again. Though, we will be much better prepared next time!

Just to say that my wife is still very upset over what has happened!