Application for UK Spouse Visa by Irish Citizen

[scrudu]

Hi there,

I am an Irish Citizen married to an Indonesian Citizen. He is currently in Indonesia applying for a Spouse visa to return to Ireland. We expect that he will return next month if his application is successful.

We are considering relocating to the UK as there are more work opportunities for my husband there (Mech Engineer). I know that because of the CTA I can apply as a British citizen would for a Spouse visa for him to enter the UK (rather than an EEA family permit). And I believe that after 2 years he can apply for ILR, and then for citizenship 1 year later (if he's happy to give up his Indonesian citizenship).

After reading the Info on the IND website, and partially completing the online application I am now unsure about the following. Do I need to be resident and employed in the UK before he applies for his spouse visa? The application asks for addreses and work details in the UK of which I have none as I am currently employed and living in Ireland. Will this count against me in a Spouse Visa Application?

Also, has anyone else applied through the UK Embassy in Ireland for a Spouse visa. I know this will depend on his case, but any ideas on how long it takes from Ireland?

[JAJ]

And I believe that after 2 years he can apply for ILR, and then for citizenship 1 year later

No he can't apply for citizenship after 3 years, because you are not a British citizen. He will need to wait 5 years.

[scrudu]

ah ok, thanks for the heads up JAJ. So what's the story with ILR then, once you have this can you leave the country? I ask because we are thinking of moving to Indonesia in a few years but may return. If you do not become a citizen, and depart for a few yeards, does the ILR stay valid, or do you have to remain in the country for it to remain valid?

Note also: I called the British Embassy regarding residency, and they said that you had to be resident in the UK to apply for a Spouse visa. They recommended to apply for an EEA Family Permit to enter the UK but couldnt advise whether it was possible to change to a Spouse visa after this.

[JAJ]

So what's the story with ILR then, once you have this can you leave the country? I ask because we are thinking of moving to Indonesia in a few years but may return. If you do not become a citizen, and depart for a few yeards, does the ILR stay valid, or do you have to remain in the country for it to remain valid?

You've got to live in the UK for ILR to remain valid,sorry. If you're no longer living in the UK it can be revoked.

Short term absences (not exceeding 2 years) are okay provided your "home" remains in the UK. Some people try to keep ILR alive by visiting the UK every 2 years. This does not work indefinitely and often does not work at all. ILR is not there to be used as a glorified visitor visa.

For absences over 2 years, returning resident entry clearance is mandatory: http://www.ukvisas.gov.uk

Also - even if you manage to keep ILR, a 2 year absence from the UK can reset the residence clock for naturalisation.

Note also: I called the British Embassy regarding residency, and they said that you had to be resident in the UK to apply for a Spouse visa.

Not true, as far as I can see. Chapter 13 of the Diplomatic Service Procedures on entry clearance states:

A spouse/civil partner is a person who qualifies to live permanently in the United Kingdom because he/she is married to/in a civil partnership with a person who is either present and settled in the UK or will be admitted for settlement in the UK when arriving there

Look at the sitemap on the UK visas website to find these procedures and you can read this for yourself.

If you do decide to apply this way you may need to be quite assertive if other visa staff have a similarly hazy understanding of the law.

They recommended to apply for an EEA Family Permit to enter the UK but couldnt advise whether it was possible to change to a Spouse visa after this.

So are you saying they were giving out "recommendations" without understanding the law and the consequences of these "recommendations"??

It is possible to change from EEA to Spouse status in-country (if you pay the fees) once admitted for 6+ months. Initial EEA permit is usually 6 months, and only then gets renewed for longer period so you're looking at the best part of a year before being able to apply for spouse. Which means the 2 year clock for ILR starts after that year, not immediately.

In some limited circumstances it's a good idea to go for EEA permit with a plan to switch to spouse in-country,but usually not a good idea.

[smalldog]

It is possible to change from EEA to Spouse status in-country (if you pay the fees) once admitted for 6+ months. Initial EEA permit is usually 6 months, and only then gets renewed for longer period so you're looking at the best part of a year before being able to apply for spouse. Which means the 2 year clock for ILR starts after that year, not immediately.

In some limited circumstances it's a good idea to go for EEA permit with a plan to switch to spouse in-country,but usually not a good idea.

I don't have a reference but I remember the Home Office instructions stating quite clearly that it is NOT possible to switch from EEA permit to spouse status (or any other status). Their logic is that as an EEA family member you are admitted under EEA regulations rather than being given leave to enter under UK immigration law. As you don't have or require leave to remain, you can't apply to extend leave which you don't have in the first place.

[John]

Note also: I called the British Embassy regarding residency, and they said that you had to be resident in the UK to apply for a Spouse visa.

Not true, as far as I can see. Chapter 13 of the Diplomatic Service Procedures on entry clearance states:

A spouse/civil partner is a person who qualifies to live permanently in the United Kingdom because he/she is married to/in a civil partnership with a person who is either present and settled in the UK or will be admitted for settlement in the UK when arriving there

I just wonder if this is the total story. An Irish Citizen who is living in the UK is deemed to be a Permanent Resident of the UK, and accordingly their spouse is entitled to apply for a 2-year spouse visa.

However it surely cannot be right that an Irish Citizen not living in the UK, for example living in Ireland, is in the same category. Surely the Irish Citizen needs to actually move to live in the UK before being classed as a Permanent Resident of the UK, thereby qualifying their spouse to apply for a UK spouse visa.

If that is wrong then an Irish Citizen who is living in Ireland, and who has never set foot in the UK, can apply for a spouse visa for their spouse! I don't think so.

[JAJ]

However it surely cannot be right that an Irish Citizen not living in the UK, for example living in Ireland, is in the same category. Surely the Irish Citizen needs to actually move to live in the UK before being classed as a Permanent Resident of the UK, thereby qualifying their spouse to apply for a UK spouse visa.

John
It says quite clearly: "or will be admitted for settlement in the UK when arriving there"

Irish citizens are pretty much guaranteed settlement in the UK by virtue of the Common Travel Area provisions in the Immigration Act 1971 and supporting regulations.

There is nothing in the DSPs that I can see which insists that a sponsor for a spouse visa who is not a British citizen needs to be resident in the United Kingdom. However it may well make the maintenance and accommodation issues more difficult.

They are also entitled to ask for evidence of a real intention to settle in the United Kingdom.

The situation would be very similar for an Australian or Canadian Right of Abode holder planning to settle in the UK and bring a spouse.

To the original poster: Strongly advise getting a good lawyer!

[JAJ]

I don't have a reference but I remember the Home Office instructions stating quite clearly that it is NOT possible to switch from EEA permit to spouse status (or any other status). Their logic is that as an EEA family member you are admitted under EEA regulations rather than being given leave to enter under UK immigration law. As you don't have or require leave to remain, you can't apply to extend leave which you don't have in the first place.

I can find no reference to this in the Immigration Rules or IDIs. That doesn't mean you're wrong,but a reference would be appreciated.

The same logic would prevent an EEA citizen in the UK applying for an in-country spouse visa.

I cannot see how preventing people switching from EEA to regular status would be within the spirit of the no-switching rule.

[smalldog]

The following is from a copy I have of last year's European Directorate Instructions (chapter 8, section 1.1).

If the applicant is a non-EEA family member and has no current leave (either through being admitted under EC law, or due to illegal entrant or overstayer status) you should refuse the application for leave to remain under the rules. These applications should therefore be considered under EC law.

...

As a matter of national policy, an EEA national married to British, Irish or other settled persons may obtain permanent residence in the UK after 2 years under the immigration rules instead of the 4 years required under EC law. These applications are subject to the normal charges applying to applications under the Immigration Rules.

An applicant cannot pick and mix between the rules and EC law in order to obtain the maximum benefits of each. In the cases of Sahota and Zeghraba, the authorities held that the systems of EC and national law in relation to immigration control were regarded as distinct.

I don't see anything so clear in current policy documents, but the current IDIs do state that in order to be granted leave to remain as a spouse of a settled person:

the applicant has limited leave to remain in the United Kingdom in accordance with the
Immigration Rules, other than limited leave to enter for 6 months or less and has
contracted a valid marriage, which is recognised in this country, to a person who is
present and settled here;

People who enter the UK on an EEA family permit are not considered to have leave to remain, so they don't meet this condition.

[JAJ]

People who enter the UK on an EEA family permit are not considered to have leave to remain, so they don't meet this condition.

What about EEA/Swiss citizens wishing to obtain spouse visas?

And would it be implemented this way in the few situations that actually arise?

In any case, couldn't the application for a spouse visa be sent to the British diplomatic post in the applicant's home country? (if they were living in the UK on an EEA Family Permit and an in-country switch was not possible)

[smalldog]

What about EEA/Swiss citizens wishing to obtain spouse visas?

And would it be implemented this way in the few situations that actually arise?

According to the Immigration Rules, EEA/Swiss citizens would need to apply outside the UK for leave to enter. In-country applications may be accepted as a matter of policy, but they are not provided for within the Rules.

In any case, couldn't the application for a spouse visa be sent to the British diplomatic post in the applicant's home country? (if they were living in the UK on an EEA Family Permit and an in-country switch was not possible)

Exactly. But this would mean returning to Indonesia or wherever to submit the application.

[JAJ]

According to the Immigration Rules, EEA/Swiss citizens would need to apply outside the UK for leave to enter. In-country applications may be accepted as a matter of policy, but they are not provided for within the Rules.

I wonder if the Home Office people have thought seriously about this?

In any case, couldn't the application for a spouse visa be sent to the British diplomatic post in the applicant's home country? (if they were living in the UK on an EEA Family Permit and an in-country switch was not possible)

Exactly. But this would mean returning to Indonesia or wherever to submit the application.

What's there to prevent the application being sent by courier from the UK to the British Embassy in Jakarta? (with the applicant remaining in the UK until visa is ready to be granted)?