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Will my wife loose her ILR?

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

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jandk
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Will my wife loose her ILR?

Post by jandk » Sat Jul 28, 2012 9:51 pm

Hi,

I am a british citizen, my wife is Japanese and has held ILR for the last 3 years and we have a 2.5 year old little boy (with a british passport)

I have just been offered a job in New Zealand and we are considering to go, on a residents visa.

Our plan is to live there for 3 - 4 years, then return back to the UK to live.


Are there going to be complications when we come to return to the uk?

(Thanks in advance for any advice and help with this)

skyper
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Re: Will my wife loose her ILR?

Post by skyper » Sun Jul 29, 2012 2:11 am

jandk wrote:Hi,

I am a british citizen, my wife is Japanese and has held ILR for the last 3 years and we have a 2.5 year old little boy (with a british passport)

I have just been offered a job in New Zealand and we are considering to go, on a residents visa.

Our plan is to live there for 3 - 4 years, then return back to the UK to live.


Are there going to be complications when we come to return to the uk?

(Thanks in advance for any advice and help with this)
Yes if she lives oversea for more then 2 years then she will loose ILR.

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Casa
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Post by Casa » Sun Jul 29, 2012 8:44 am

If your wife has held ILR for 3 years, why hasn't she applied for British Citizenship?

temuujin
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Post by temuujin » Sun Jul 29, 2012 10:00 pm

Casa wrote:If your wife has held ILR for 3 years, why hasn't she applied for British Citizenship?
why she has to be British? She may proud of being Japanese!!!

newperson
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Post by newperson » Sun Jul 29, 2012 11:21 pm

Unfortunately, when you return to the UK in three or four years time, your wife's ILR will have lapsed. As others have mentioned, this happens when she hasn't been living in the UK for two years.

When you do wish to return, you will be applying for a new spouse visa. You won't get any "credit" for time already in the UK. Moreover, you will be subject to the new rules that just came into force on the 9th of July.

To return, your wife will apply for her first spouse visa overseas at a cost of more than a thousand pounds. This will be valid for 30 months. At the end of those thirty months, she will have to extend that spousal visa for another 30 months. Again at a cost of more than a thousand pounds, and the fees go up all the time.

After those 60 months are up (or 5 years), then she can apply for ILR again, also at a cost of more than a thousand pounds. Note that the qualifying period for the spousal ILR route has increased from two years to five.

I understand that Japan doesn't easily tolerate dual citizenship. If she becomes British, she will likely have to give up her Japanese nationality. But I guess this is something that the OP has to balance against the hassle and cost of starting the settlement process all over again.

See this:

http://www.ukba.homeoffice.gov.uk/visas ... spouse-cp/

And particularly this:

http://www.ukba.homeoffice.gov.uk/sitec ... family-mig

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Casa
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Post by Casa » Mon Jul 30, 2012 8:26 am

temuujin wrote:
Casa wrote:If your wife has held ILR for 3 years, why hasn't she applied for British Citizenship?
why she has to be British? She may proud of being Japanese!!!
I'm not suggesting she has to take British Citizenship, simply that it would solve the problem of her re-entry to the UK the family are currently facing.

linkers
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Post by linkers » Mon Jul 30, 2012 8:53 am

jandk: You will have to be careful as your wife could lose her Japanese Citizenship as Japan does not allow dual citizenship except to those having acquired dual citizenship prior to January 1, 1985.

JohnM
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Post by JohnM » Mon Jul 30, 2012 12:37 pm

I am not solicitor, so double check it. But as far as I understand ILR will be removed if she will be out of UK for 2 years non-stop. If you visit UK during this time, she will have airport stamps in passport that she was here and ILR should be Ok.

I am not solicitor, but this was always my understanding of this rule. :D

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Casa
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Post by Casa » Mon Jul 30, 2012 1:00 pm

Visiting briefly doesn't count. More than 2 years residence outside of the UK will result in loss of ILR.

newperson
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Post by newperson » Mon Jul 30, 2012 3:05 pm

JohnM wrote:I am not solicitor, so double check it. But as far as I understand ILR will be removed if she will be out of UK for 2 years non-stop. If you visit UK during this time, she will have airport stamps in passport that she was here and ILR should be Ok.

I am not solicitor, but this was always my understanding of this rule. :D
Sorry, but bad advice. Very bad. :-/

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Post by linkers » Mon Jul 30, 2012 3:37 pm

I would agree with Casa. There is a general perception that if you visit the UK for a short period of time, your ILR remains valid (which is not true). As Casa advised, it can still be revoked, especially when you have no ties with the UK.

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Casa
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Post by Casa » Mon Jul 30, 2012 3:52 pm

This is passage from instructions to border staff:
a person resident overseas cannot maintain their settled status in the UK by paying short visits to the UK before resuming residence overseas.

JohnM
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Post by JohnM » Tue Jul 31, 2012 11:46 am

newperson wrote:
JohnM wrote:I am not solicitor, so double check it. But as far as I understand ILR will be removed if she will be out of UK for 2 years non-stop. If you visit UK during this time, she will have airport stamps in passport that she was here and ILR should be Ok.

I am not solicitor, but this was always my understanding of this rule. :D
Sorry, but bad advice. Very bad. :-/
But then we should define what is considered short periods. If you have ILR but you decided to spend 10 months outside, then returned for 2 months, then again decided to go on business trip for another 10 months. At the same time you have ties with the UK, then will it revoke?

I think very bad advice is not to discuss things but categorically say - you will loose it. Well, if you want to give good advice, give it in full then with all details. What would be considered short periods of visit. What will demonstrate no ties with the UK, etc. Because I can't believe laws in this country can be THAT categorical. They genuinely lived in UK and want to continue to live here.

I think it can depend on different things. For example, if they have home here, can they demonstrate ties with the UK, how they pay taxes, etc.

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Post by ouflak1 » Tue Jul 31, 2012 12:28 pm

I was under the impression that you could regain you ILR if your were a previous permanent resident with the intention of re-establishing your life back in the UK and had strong family ties. I would think her husband and children count as strong family ties, but perhaps that is my own interpretation. Would this be up to any sort of discretion due to obviousness? Or is this one of those specific cases where there is no discretion?

Link to UKBA page on returning residents.
UKBA wrote:If you have been away for more than 2 years, you may still qualify to return to live in the UK if, for example, you have strong family ties here or have lived here most of your life.

If you have been away for more than 2 years, you must apply for a visa or an entry clearance certificate before you can return here. For more information, see the How to apply page.

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Post by wpilr_nov12 » Tue Jul 31, 2012 1:55 pm

Anything with 'may' is a high risk proposition, esp with respect to UKBA.
Please do not send me PM if I haven't sent you one yet.
My ILR, MN1 and kids PP stories.

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Casa
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Post by Casa » Tue Jul 31, 2012 2:32 pm

JohnM wrote:
newperson wrote:
JohnM wrote:I am not solicitor, so double check it. But as far as I understand ILR will be removed if she will be out of UK for 2 years non-stop. If you visit UK during this time, she will have airport stamps in passport that she was here and ILR should be Ok.

I am not solicitor, but this was always my understanding of this rule. :D
Sorry, but bad advice. Very bad. :-/
But then we should define what is considered short periods. If you have ILR but you decided to spend 10 months outside, then returned for 2 months, then again decided to go on business trip for another 10 months. At the same time you have ties with the UK, then will it revoke?

I think very bad advice is not to discuss things but categorically say - you will loose it. Well, if you want to give good advice, give it in full then with all details. What would be considered short periods of visit. What will demonstrate no ties with the UK, etc. Because I can't believe laws in this country can be THAT categorical. They genuinely lived in UK and want to continue to live here.

I think it can depend on different things. For example, if they have home here, can they demonstrate ties with the UK, how they pay taxes, etc.
Did you read my post with the passage from the UKBA website about visiting?

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Post by ouflak1 » Wed Aug 01, 2012 11:55 am

wpilr_nov12 wrote:Anything with 'may' is a high risk proposition, esp with respect to UKBA.
Agreed. But it is better than no possibility and it is specifically mentioned on their website. I just wonder what the real possibilities are. Could she come back with her family in tow and get ILR back right then?

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Post by Lucapooka » Wed Aug 01, 2012 12:14 pm

wpilr_nov12 wrote:Anything with 'may' is a high risk proposition, esp with respect to UKBA.
May, when used in legal texts, refers to permission rather than possibility (because being vague is not desirable with rules and guidance). May I borrow your umbrella? Yes, you may. This treatment of that modal verb is standard throughout UKBA guidance. Were it otherwise, the decision would depend on whether the caseworker was in a good mood that day rather than if the applicant met the particular condition that may (is permitted to) be applied.

So, to help your understanding you can interpret:

If you have been away for more than 2 years, you may still qualify to return to live in the UK if, for example, you have strong family ties here or have lived here most of your life.

as meaning

If you have been away for more than 2 years, you can still qualify to return to live in the UK if, for example, you have strong family ties here or have lived here most of your life.

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