wife's application for ILR - visa/arrival in UK time gap

[johnbarr]

Hi, my wife is applying for ILR next month and we are worried about the short gap between her being given initial entry clearance (mid Dec)with spouse visa and when she actually arrived in UK (late Jan). As my wife did not know how long the spouse visa would take to be approved she agreed to work with her employers over the Christmas/ New Year holidays and then come to UK as soon as she could thereafter.

Will the immigration dept query this gap and should I obtain a letter of comfort from her ex-employer to expedite matters? Probably more worrying will they say that we'll not lived together for full two years and only give further leave to remain?

[Smit]

Johnbarr,

ILR will only be issued after 2 years of first entry into the UK and not as per the date of issue of the EC. I know someone who was in the same boat as your wife who appled for ILR and who was instead given FLR until the expiry of the 2 years period from the date of first arrival.

But that person had a gap of about 5 months from the date of the EC and date of first arrival, your wife's case may go through as there is only a short gap between date of issue of the EC and date of first arrival. This will be at the discretion of the HO official dealing with your wife's application. What I suggest you do is apply for ILR and see what happens. I suspect the worst case scenario is that HO will give FLR instead of ILR and not reject the ILR application outright and thus making you lose the application fee.

S

[John]

Johnbarr, for reasons as stated by Smit, yes I think there might be a problem, and maybe just FLR would be granted. But have to say that ILR can be granted a few days before the two years is up. For example, if someone got their 2-year spouse visa and then flew to the UK immediately, they could certainly make their application for ILR in the last 28 days of validity of the 2-year spouse visa, even though at that point in time they could not possibly have been in the UK for two years.

What you don't say is how you intend to apply for the ILR? In person at a PEO? Or by post? The fee would either be £500 or £335. Unless there are plans to leave the UK in the next few weeks after submitting the visa application I would suggest the application be made by post, and indeed not be made by post until close to the expiry date of the current visa. Post it say three or four days before the visa expiry date. And of course, as always when important documents are being enclosed, send by Special Delivery.

You might even deliberately pay by cheque rather than debit or credit card. Yes that will add a few days to the processing, while the payment unit waits for the cheque to clear, but it will ensure that it is not passed to the work unit to look at the application for real until at least closer to when your wife will have been here for 23 months.

Worried about your wife being an overstayer in the above scenario? No need to worry at all. As long as IND receive an application for a further visa before the old visa expires, even if they have not dealt with the application by the stated expiry date, then legislation commonly known as Section 3C comes into play. This states that the old visa is "treated as continuing" even though the stated expiry date has passed, and indeed is treated as continuing until after the application is dealt with, and if rejected, until the time has expired for appealing against that rejection. I emphasise the importance of ensuring that the new application must be received by IND before the expiry date of the old visa, otherwise Section 3C cannot come into play.

[johnbarr]

Thanks for the advice guys.........we were going to pay £500 and apply in person (the waiting and not knowing is a killer) but it sounds like it may be better to apply at the last minute by post. I'll ask my wife's ex-employer to write us a letter of comfort and see what happens with the ILR application. As you say probably the worst case scenario will be that FLR is given until she has lived with me the full two years. I am confident that, apart from the short gap of course, we have all of the supporting documentation.

[Smit]

Good luck with the application, let us know what happens.

[John]

John, back in 2001 we faced exactly this situation. Because we dare not assume that the spouse visa would be granted, my wife did not handed in her notice at the Government College where she worked until the visa was in her passport. So she needed to work out that notice leading to an inevitable delay in her arriving in the UK.

The visa start date was 15.03.01 and thus the expiry date on the visa was 14.03.02 (spouse visas at the time being just one year) and she actually arrived in the UK on 14.04.01. The problem was not apparent to us until a call was made to the Birmingham PEO.

What we ended up doing was going along to the Birmingham PEO on 14.03.02 .. literally the expiry date on the visa! And exactly 11 months after my wife had arrived. Thankfully the ILR was granted!

We made a point of applying in person at a PEO because we wanted to go on and apply for Schengen visa. Indeed there was also a French-issued Schengen visa in the passport about 10 days after the ILR one.

So John, and certainly if there are no travel plans in the offing, I think you should take the postal route, and indeed deliberately pay by cheque, in order to delay the application getting to a real caseworker until a later point in time. Hopefully it will all work out.

[johnbarr]

Thanks again John & Smit........you have put my mind at ease for now. My initial thought was that there must be a small gap for everyone as it takes time for you/your spouse to arrange a flight etc and it has to be pretty common for people to delay travelling to the UK as they need to give their employers a period of notice, arrange accommodation and so on. My only concern is that the gap is more than a month as my wife's employers really needed her to help them out over christmas and the new year and it took a while to arrange a flight for me and her ( I picked her up in her home town) but I am sure it will be ok.

One last question guys. How does FLR work? I take it that immigration will give FLR until the end of January or for another set period and then we would need to make a further application/submission at the end of the period?

[Smit]

Johnbarr,

I feel inclined to agree with John, as long as the postal application is submitted before the expiry of the initial EC and is actually considered by the caseworking team after the expiry of 23 months from the date your wife landed in the UK (bearing in mind delays due to Christmas hols), there is no reason why ILR should not be granted.

If for some reason the caseworking team expedites the processing of the application before the expiry of 23 months after your wife landed (i.e. somewhere in mid Dec), then I suspect they will give FLR until end of Jan 2006 and advise your wife to apply for ILR at that time although I doubt they will do this due to the short gap between the EC and actual arrival date.

S

[John]

John, I agree with all of Smit's comments.

Are you able to post the exact dates? Date of expiry of current visa? Date of wife's arrival in the UK?

That is, just how much more than 28 days are we talking about here?

[johnbarr]

I'll need to have another look at my wife's passport.......it's packed away somewhere safe.......I have it marked in my dairy that she needs to apply for ILR by 2 December 2005 and if I recall we arrived in the UK at the very end of January 2004 so its about a 7-8 week gap

[johnbarr]

thanks again guys for your help..........I am really glad that I found the immigration board, your knowledge is indeed priceless