Spouse: Indefinite Leave to Remain, but left UK

[shrubbery]

Hi,
I just found out about the post-2012 spouse visa rules and was a bit concerned. My situation is this: I'm a UK national, born and raised in the UK. My wife is Chilean, we married in 2007 and lived in the UK, and my wife got Indefinite Leave to Remain in 2009. We have a daughter born in 2010 in the UK. In December 2012 we left the UK to live in Chile and we intend to stay here for the foreseeable future. However, one day we'll probably return to the UK, maybe in five or ten years, I don't know, but I'd like to have the option open. I understand that the Indefinite Leave to Remain expires if you live outside the UK for a certain period, so presumably my wife would have to reapply for a spouse visa if we returned to the UK in a few years? If so, would she have to apply under the new rules, with the financial requirements? I saw that if you had applied before 2012 the old rules still apply, but does that include if your IDLtR expired and you are reapplying? TIA.

[Wanderer]

I think you have to be careful here, generally ILR 'times out' after two years, but can be 'reactivated' by returning to UK to resume residency.

This is where it would get dicey, since a visit to UK isn't returning as a resident and the I/O would most likely admit her as a visitor (if Chileans need a visa), effectively removing ILR, or bounce her (if a visit visa is required). SO you need to resume permanent residence in UK and get her Naturalised ASAP.

Otherwise it's a re-app under new rules when you are ready to return and all the financial requirements etc...

[shrubbery]

Thanks Wanderer, that's very helpful. I don't think realistically we can return to live in the UK in the near future - we've put so much time and money into getting set up in Chile (bought new car, new furniture and electrical items etc.), so the likelihood is that when we do return, if ever, the ILR will have expired.
If we did go back, how long would it take to get her naturalised from her current ILR state? Maybe she could go for an extended holiday and stay with my parents until she's naturalised? Then presumably she can do what she wants regarding living abroad?
Lastly, does the fact that she has a British daughter have any bearing on all this?

[Casa]

It could be a tough one to comply with. This is from the UKBA guidlines for someone with current ILR and married to a BC :

'In order to demonstrate the residential requirements for naturalisation you need to:

have been resident in the United Kingdom for at least three years (this is known as the residential qualifying period); and
have been present in the United Kingdom three years before the date of your application; and
have not spent more than 270 days outside the United Kingdom during the three-year period; and
have not spent more than 90 days outside the United Kingdom in the last 12 months of the three-year period; and
have not been in breach of the immigration rules at any stage during the three-year period.'

[shrubbery]

Thanks Casa, so basically I think we're screwed All seems very harsh. Surely this legislation won't stand after legal challenges? I keep reading about convicted foreign criminals successfully appealing against deportation orders on the basis of European Human Rights legislation guaranteeing a right to family life - I struggle to see how the same thing wouldn't apply to my living with my wife and daughter in my own country.

[MPH80]

The legislation you're looking at has been in place for many many years.

It's going to remain standing.

[Casa]

In effect, they're not denying the right to live in the UK with your family....they require you to apply again for a spouse settlement visa if you've chosen to live outside of the UK for more than 2 years and the previous ILR is void.

[shrubbery]

I'm a UK national, born and raised in the UK. My wife is Chilean, we married in 2007 and lived in the UK, and my wife got Indefinite Leave to Remain in 2009. In December 2012 we left the UK to live in Chile. We have a daughter born in 2010 in the UK. We have another daughter born here in Chile this year.

I have now been offered a job in the UK and we are going to move back. My wife's ILR will have expired, since we haven't lived in the UK for 3.5 years. In terms of her visa for moving back to the UK, I understand that she will need a ‘family of a settled person’ visa. Can she apply for this now, while I'm still in Chile and haven't started my new job yet? The job easily qualifies us for the financial requirement, but obviously I haven't actually started it yet. I could get a contract and a letter confirming the offer and the salary from my new employer.

It says in another post here that the sponsor:

"...will have to return to the UK, secure employment with annual earnings of at least £18,600 and after being employed for a minimum of 6 months his wife will be able to apply for a spouse settlement visa"

So that sounds like I need actual pay-slips from my new job for 6 months. Is a contract showing my salary not going to work?

I'm obviously not keen to be separated from my family for 6 months, so if that's our situation, should my wife apply for some other 'lesser' visa first? Or just come as a tourist then go back to Chile after 6 months and apply for a visa?

[vinny]

Did she not return to the UK within 2 years at all?

See also 5. SET9.5 Exception to the two year rule for those who have strong ties to the UK.

[shrubbery]

Did she not return to the UK within 2 years at all?

See also 5. SET9.5 Exception to the two year rule for those who have strong ties to the UK.

No, she hasn't been in the UK at all during the last 3.5 years (neither have I, FWIW). Thanks for those links, it sounds like there's a slim chance she could be granted an exception due to "strong ties to the UK", but how would we find out? Could the embassy here decide?

[vinny]

The Embassy would decide.

[shrubbery]

OK thanks. I'm going to phone the embassy tomorrow. Assuming she does have to apply for a ‘family of a settled person’ visa, can she only do that after I've been back and working in the UK for six months?

[vinny]

If applying as a spouse, you/she would have to satisfy Appendix FM-SE.

[shrubbery]

If applying as a spouse, you/she would have to satisfy Appendix FM-SE.

Thanks. Reading that, it looks like we definitely need pay-slips so she won't be able to apply until I've been in my new job for 6 months. Would a sensible strategy be for her to just enter as a tourist and then return to Chile after 6 months and apply?

[Casa]

You would meet the financial conditions if:
1.You (as the sponsor) have been earning the equivalent of £18,600 p.a in Chile for the 12 months previous to submitting the application
2. You have a confirmed job offer in the UK to start within 3 months of arrival with annual earnings of £18,600

[shrubbery]

Just to update this since it may be useful for others in a similar position: we were over the 2 year limit (2 years 8 months at the time) but we applied for the 'returning resident' visa anyway since (as it says in the link by vinny) an exception may be given for those with strong ties to the UK. Anyway, we found out today the visa was granted, so obviously very relieved.

Just a small question: on the new 'returning resident' visa they've stuck in the passport, it has a 'valid until' date which is in April 2016 - presumably this is just time limit for her to fly back to the UK on this visa, rather than the limit to how long she can stay in the UK? Also, the ILR sticker is in her old passport and this returning resident visa is in the new passport - presumably we'll need to take both of them to pass border control? Unfortunately the embassy didn't send a covering letter giving any details. Will we need to get a new ILR sticker in her new passport?

[shrubbery]

My wife is Chilean, I'm British. She obtained Indefinite Leave to Remain in 2009 when we were living in the UK. We moved to Chile in December 2012 and stayed there for about 2 years and 8 months, before deciding to move back to the UK. My wife applied for a 'Returning Resident' visa which was granted. We moved back to the UK in October 2016 and have been here ever since.

My wife now has a piece of paper stuck in her passport entitled 'UK Entry Clearance' with 'type' given as 'Returning Resident'. Under 'observations' it says "Settlement: Indefinite leave to remain". This was stamped by Heathrow immigration on 8th October.

The thing I don't understand is that this Entry Clearance stamp has a 'Valid until' date of 1/04/16 - presumably after this date her ILR is still valid? What happens when she next leaves the country (i.e. on holiday) and re-enters, give that this Entry Clearance appears to have expired?

[vinny]

The entry clearance should normally have been valid for six months, with an ILE observation.

But I expect that she will be okay with the slight error(s).

[TeamW]

What is this ILE observation? I'm in the same situation. I'm from Brazil, got my returning resident's entry clearance (6 months validity) and am now here in the Uk. Immigration says I need to re-apply for my ILR whilst a immigration lawyer told me, no, I'm a returning resident, this is my visa and the 6 months is just the time I had to come back.
Shrubbery, did you get to the bottom of this?

[vinny]

What does the visa say?