Caseworkers' discretion-comparison of spouse visa & ILR

seventhseal · Post by **seventhseal** » Fri Aug 31, 2007 12:56 pm

Many tears have flowed between my partner & I-we are finding out a lot about each other. This visa application business is very rewarding(lol).

Could anybody advise us on the following issue?

My partner's info:
Current visa: Unmarried partner visa (2 yrs) expiring on Sept 13th.
Marriage status: Married (to me, a British national, 2 weeks ago)
Life in the UK test: Passed
Public funds: None received (no working tax credits either)

This means that she can apply for either ILR or spouse visa. We are attending Liverpool PEO on the 13th September (leaving it very late) to apply for one or the other. We are most worried about being refused on maintenance & accommodation grounds-she has a job, but I don't. This brings me to my questions:

1) Will the caseworker apply a different standard when deciding maintenance & accommodation grounds for spouse visas and ILR applications? ie. Is she more likely to get a spouse visa than ILR?

2) My partner's employer has stated in no uncertain terms that they will terminate her employment if no evidence of right to work in the UK is supplied by 13th September despite the fact that while a postal application is being considered her right to work continues-the reason why the premium one-day service is our only option. Would this circumstance possibly affect the caseworker's decision?

We are grateful for whatever advice you can give us.

Wanderer · Post by **Wanderer** » Fri Aug 31, 2007 1:13 pm

From memory I think I was told that with UPV you can only apply for ILR after 5 years, not 2 as per spouse.

But I think the time on UPV counts towards naturalisation.

seventhseal · Post by **seventhseal** » Fri Aug 31, 2007 1:18 pm

Thanks Wanderer.

It's still 4 years for UPV. It's gone up to 5 years for other visa categories including "Highly Skilled Migrant"-I heard this from a recorded message on the Immigration line.

VictoriaS · Post by **VictoriaS** » Fri Aug 31, 2007 1:29 pm

Wrong I'm afraid

As an Unmarried Partner, you can apply for ILR after two years. This is true even if you have subsequently got married, so there is no reason to switch to spouse unless you don't have the supporting documentation of two years cohabitation or you don't have the Life in the UK pass. All the other criteria are the same.

Victoria

seventhseal · Post by **seventhseal** » Fri Aug 31, 2007 1:36 pm

Thanks VictoriaS.

Sorry, I meant 4 years as in 2years cohabitation in order to get the UPV, then another 2 years cohabitation in order to get ILR.

Any idea about the questions I asked in the original post?

VictoriaS · Post by **VictoriaS** » Fri Aug 31, 2007 1:37 pm

Yes, i thik I have answered the first one.

The second one - nothing at all I can do.

Victoria

seventhseal · Post by **seventhseal** » Fri Aug 31, 2007 2:00 pm

Sorry, I meant this question:
1) Will the caseworker apply a different standard when deciding maintenance & accommodation grounds for spouse visas and ILR applications? ie. Is she more likely to get a spouse visa than ILR?

VictoriaS · Post by **VictoriaS** » Fri Aug 31, 2007 2:05 pm

VictoriaS wrote:Wrong I'm afraid

All the other criteria are the same.

Victoria

meaning that other than the test and the evidence of cohabitation...all other criteria are the same!

Victoria

seventhseal · Post by **seventhseal** » Fri Aug 31, 2007 2:18 pm

I see.
Ok, so the criteria are the same, but ILR opens up access to public funds for the successful applicant. My logic tells me that the caseworker would be more likely to refuse an applicant for ILR than an applicant for spouse visa on maintenance and accomodation grounds because of this factor.
Do you have any stats or experience with regard to this?

VictoriaS · Post by **VictoriaS** » Fri Aug 31, 2007 2:27 pm

Er....I'm not sure of the point in you asking a question if, when you get the same answer three times, you then decide the opposite is the case!!!

Victoria

seventhseal · Post by **seventhseal** » Fri Aug 31, 2007 2:42 pm

I'm sorry. It's just that I have read what the law says and understand the criteria are the same. But caseworkers have "discretion" , which means that they have some freedom of interpretation. Unfortunately for us applicants we have no experience of which way the "discretion" will go. I thought that as a qualified person you might have been able to shed some light on that.

VictoriaS · Post by **VictoriaS** » Fri Aug 31, 2007 5:09 pm

I am shedding light.

They will assess both applications the same in terms of ILR and further leave.

Victoria

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Caseworkers' discretion-comparison of spouse visa & ILR

Caseworkers' discretion-comparison of spouse visa & ILR