BC application after divorce

[pk10]

I have ILR through marriage to a British spouse and unfortunately my marriage is broken after three years and now we are living separately. Does that mean that my ILR will be revoked? Can my spouse write to Home Office to cancel my ILR? My friend tells me that after ILR it does not matter if one is divorced. Is this correct

I want to get naturalized. Do I have to complete 5 years with the current ILR? Or my clock for new ILR will start again?

What options do I have other than marriage route to apply for BC. Also note that I have a child who is British from my marriage.

Can I apply on the existing ILR after completing 5 years.

[John]

Does that mean that my ILR will be revoked? Can my spouse write to Home Office to cancel my ILR?

No, and no! Well I suppose as regards the second "no", you can't stop your husband writing, but the effect of him doing so will be nil.

How long have you actually been in the UK? 3 years already? Have you passed the Citizenship Test? If so, apply for Naturalisation now, given you are (still) married to a British Citizen. It does not matter that you are no longer living with him. He does not need to consent to your application. You are still married to him up to the time when the divorce Decree Absolute is issued.

Proof that he is a British Citizen? When you apply for your naturalisation you will need to enclose either his passport or his full birth certificate showing he was born in the UK and showing his parent's names. You don't have his birth certificate? You know his date of birth, and where he was born? If so it is possible to get a copy of his birth certificate.

[pk10]

John, thanks for your quick response.

Your advice is contrary to what I am told by a solicitor. He says that if the Home Office contact the British spouse, he may not support my application for BC.

He is not co-perative and keeps threatening language. He is not applying for divorce.

From what you are saying I need to obtain his birth certificate(without his knowledge) and apply.

I remember at the time of obtaining ILR, we needed to prove that we were living together, joint bills, etc. Don't you think that Home Office will make inquires when they'll notice different address of mine and my husband. It will clearly show that we are living apart. The guidance notes say that we need to know details of your spouse to make enquires.

[British]

Hi pk10,

As a side question, can you detail your experience on the ILR application based on marraige (i.e. via 2 years spouse visa).

My wife will be applying for her ILR soon on the basisi of having been married to me (a British citizen).

We have accumulated all teh nec. docuemntation spread across the two years so far, but just want to read your experience, for more confidence

Thanks.

As for your question you have said that your spouse is not willing to give divorce. That itself is more than enough status-quo that you are married currently as at the date of aplication (in spite of the fact that you may be living away from each other), and hence the HO cannot deny your application, as long as you can gather the necc. documentation as is needed in the application.

Since there is no current divorce, the marraige continues, as for the HO is concerned.

As for your earlier ILR, that was a totally different thing - you were asking for ILR based on the marraige to a BC and on the promise that you continued to live together as spouses.
But the BC application based on marriage does not require any promise to contiue your marraige.

As long as you had lived with your current British spouse (on a marraige) an dyou have lived in th UK for at least 3 years, and have had ILR even for one minute, you qualify for BC.

That is my opinion.

John will have more inputs on this bit defenitely.

[John]

Your advice is contrary to what I am told by a solicitor. He says that if the Home Office contact the British spouse, he may not support my application for BC.

The solicitor is totally wrong. Whilst the support of the spouse was totally necessary for you to get your ILR in the way you did, and your husband needed to sign the application form SET(M) to get that ILR, as regards the form to apply for Naturalisation, there is no space on the form for the spouse to sign, and no reason why IND would need to contact your husband. Even if they did, there is nothing in the law relating to Citizenship that gives your husband any sort of veto to your application.

Can I ask, how long between you applying for your ILR, and the separation happening?

He is not applying for divorce.

No but you might start the divorce proceedings, especially as you say he "keeps threatening language". Do keep a record of these instances.

To order a copy of your husband's birth certificate go to this webpage, and do ensure that you order a copy of the full birth certificate, rather than the short birth certificate.

As for your question you have said that your spouse is not willing to give divorce.

She did not actually say that. She merely said "He is not applying for divorce.". Either spouse is entitled to initiate divorce proceedings. It is only on the two-year separation ground that the other spouse effectively needs to consent. But if the ground is unreasonable behaviour, or adultery, then he cannot stop the proceedings from being started, and he would be well advised to think carefully about defending the action, especially if the facts in the divorce petition are true.

PK10, if you are thinking of initiating divorce proceedings then you will need to seek legal advice about that.

[JAJ]

Your advice is contrary to what I am told by a solicitor. He says that if the Home Office contact the British spouse, he may not support my application for BC.

The law on naturalisation in the British Nationality Act 1981 is very clear. All that is required for naturalisation (with the residence concession for marriage) is that the applicant is legally married (or in a civil partnership) with a British citizen on the date of application.

- Spouse does not have to support or consent to the application
- It is irrelevant if spouses are separated
- It is irrelevant if there is any intention to separate or seek a divorce

It should be a matter of concern that a solicitor could give wrong advice (if it was wrong, as opposed to a misinterpretation) on something that is very clearly explained in the Nationality Act. A professional who is not expert on a particular area of law should either research properly or not give advice in the first place.

[pk10]

Thanks for all the responses.

There is part of me which is upset and part more confident than before.

Based on all the responses and various other posts on this forum, there is no doubt that the solicitor I've been seeking advice is ill informed. He said that since my marriage is broken even though I've ILR I now have to wait until five years to be apply for BC on my own. Second, he told me to wait for 12 months after the ILR, which I now understand is not necessary because of the marriage to a British spouse (I have been more than 3 years in Britain).

I have now learned that after acquiring ILR I have equal civil rights as a BC and should not be afraid anymore or feeling timid of my husband and living with fear of deporting me.

Yes, I've kept notes of his verbal threats and foul language. But those are written notes in a diary with dates. Whether it will be acceptable in any court I don't know. Someone can accuse that I have generated these myself or my husband can cookup a similar diary to support his false allegations. I've never recorded any of our voice conversations, thinking that it is illegal and unethical.

Someone asked about my ILR, it was granted after 2 years of spouse visa (Limited Leave to Remain). Its been more than six months to my ILR. Before spouse visa, I was on WP. In total 4.5 years.

To the question of my ILR application, we were living together in the same flat. We had joint bank account, joint Inland Revenue documents, some bills in my name some in his name. If my memory serve right, in total we showed 8 documents with our names having the same address dated for more that 2 years of residence. The application was smooth and quick with no inquires and I was granted ILR.

As everyone has explained I should submit my application with no fear and get on with my life.

Thanks everyone, this query and your answers really made a difference to me.