Overstaying on visit prior to spouse visa; any grace period?

[SimonW]

How long can I overstay the 180 days per visit on a 2year family visit visa? I have had to stay longer in UK because my mother-in-law has been ill. She passed away last Sunday and the funeral will take place the day before the 180 days expires. Ideally I would stay a bit longer because of the emotional circumstances. However I do not want to put my intended application for a settlement UK visa at risk. I'm also wondering if I can apply to remain in UK without returning to India now that my daughter has been naturalised, though I believe the rules prevent this. Thanks... Iishita

[secret.simon]

It will impact the settlement visa application negatively, though not sure to what extent. BTW, what are the grounds for a settlement visa? Were they disclosed when you made your visit visa application?

But the overstay will certainly count against you in any future citizenship application. Any overstay will get a 10 year ban for citizenship.

[Casa]

In addition to secret.simon's advice...it isn't possible to switch from visitor to any other category from within the UK, even though your daughter now has British citizenship. It doesn't change anything.

[SimonW]

Is the 28 day grace period applicable for family visit visas? I arrived november 1st so if we include this then the total is 181 days if I get a flight on April 30th, the day after the funeral. It would seem very harsh to penalise this.

[SimonW]

(Grounds for settlement are that my husband is UK citizen since birth and settled in UK.)

[secret.simon]

To the best of my knowledge, the 28 day grace period applies to further immigration applications, not to naturalisation applications, which are administered under different rules and different laws.

(Grounds for settlement are that my husband is UK citizen since birth and settled in UK.)

How did you manage to get a visit visa with that? Did you disclose in your application that your husband is a British citizen by birth and resident in the UK?

I'm also wondering if I can apply to remain in UK without returning to India now that my daughter has been naturalised, though I believe the rules prevent this

And why did your daughter have to be naturalised if your husband is a British citizen by birth? Was she naturalised (as an adult) or registered (as a child) and on what grounds?

[SimonW]

We have had visit visas since marriage 6 years ago because we have been unsure where to settle. Now our daughter is 4 we feel UK is better for her. My husband is born in Singapore so we had to naturalise out daughter first (she was born in India) and now she has a UK passport. For myself, being indian, I have to go through the settlement procedures to harmonise our nationalities.

I have checked article 62.2 from the thread above and it seems that if I leave voluntarily within 90 days of the 180 day visit then that should be ok given that I'm going to be applying for family settlement. However, while it would be terrible to miss the funeral we really don't want to take any risks. Everything is in place for a successful settlement visa application and it would be even more terrible to be separated for too long from my daughter and husband who will stay in UK while I return for the process.

Thanks...

[noajthan]

We have had visit visas since marriage 6 years ago because we have been unsure where to settle.

...

Thanks...

Something odd going on here. Visit visas are not to be used for achieving something approximating a form of residency in UK.

Children are registered as citizens not naturalised; presumably a section 3(2) or 3(5) registration for your child in your case.

[Casa]

One other point before you submit your spouse settlement visa. Has your husband been earning a minimum of £18,600 pro rata per year for at least 6 months, or has held savings of £62,500 for 6 months in an accessible account?

[secret.simon]

My husband is born in Singapore so we had to naturalise out daughter first (she was born in India) and now she has a UK passport.

Children are registered as citizens not naturalised; presumably a section 3(2) or 3(5) registration for your child in your case.

That makes sense now.

But, like noajthan, I am surprised that you were issued a visit visa at all when you had such strong connections to the UK as a British husband resident in the UK.

Was the fact that your British husband was resident in the UK disclosed in the visit visa applications?

I would suggest leaving the UK asap, in spite of the familial circumstances, and starting off the settlement route procedures.

[SimonW]

Well, for the last few years my husband has been in India a lot so unable to work seriously in UK. However, since April 2015 he has managed to accumulate more than £62500 in savings - ISAs and bonds but all accessible anytime - so we now qualify that way. He is understandably devastated that I might not be there for the funeral and we are wondering about the official position on the grace period. On the last time I came through Heathrow I was informed that this visa I currently possess was not being used correctly and that the next time there would be a chance of being refused entry. So we know we have to proceed with settlement. We are praying that the grace period is indeed valid because I would be leaving our daughter with him in UK, hoping for a speedy and uncomplicated visa application...

[SimonW]

The reason I was allowed into UK in november last year was because the officer believed my mother-in-law was ill. I had come on a one way ticket from India because we have been unsure when I would return and this had aroused concern. If in my application for the settlement I include the certificate of my mother-in-law's passing and official funeral booking documents for April 29th then surely the authorities will be understanding? And as well, by quoting article 62.2 in the covering letter there is surely a legal basis to my situation anyway?

[Casa]

Unfortunately the Home Office doesn't make decisions based on compassion, in this case attending a funeral.

One point I've picked on in one of your recent posts regarding savings. The ISA is fine, but bonds will have to be liquidated into cash savings before you submit your spouse visa application. Note the following from Appendix FM 1.7:

Evidence must be provided showing that:
 The investments, stocks, shares, bonds or trust funds were in the ownership and
under the control of the applicant, their partner or both jointly for that part of the 6
month period prior to the date of application before they were liquidated into cash
savings;
 The value of the investments, stocks, shares, bonds or trust funds at or before the
beginning of that 6 month period was at least equivalent to the amount of the cash
savings relied upon in the application; and
 The cash savings meet the requirements of Appendix FM-SE.
If this evidence is not provided, the cash savings previously held as investments, stocks,
shares, bonds or trust funds cannot be counted towards the financial requirement.

[SimonW]

Thanks so much for the tip. One of the accounts is a joint account in my husband and daughter's name. He has full access of course, she only being 4. Is this ok too?

[Casa]

Thanks so much for the tip. One of the accounts is a joint account in my husband and daughter's name. He has full access of course, she only being 4. Is this ok too?

To be honest I'm not sure as I haven't come across this before where the joint account holder is a child. My instinct says there may be an issue with this, but wait for firmer advice from others.

[secret.simon]

On the last time I came through Heathrow I was informed that this visa I currently possess was not being used correctly and that the next time there would be a chance of being refused entry.

I think the situation is considerably worse than you realise.

4.2 (a) (c) (e) of Appendix V, Immigration Rules of Visitors" states:

The applicant must satisfy the decision maker that they are a genuine visitor. This means that the applicant:
(a) will leave the UK at the end of their visit; and
(b) will not live in the UK for extended periods through frequent or successive visits, or make the UK their main home; and
(c) is genuinely seeking entry for a purpose that is permitted by the visitor routes (these are listed in Appendices 3, 4 and 5); and
(d) will not undertake any prohibited activities set out in V 4.5 – V 4.10; and
(e) must have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds. This includes the cost of the return or onward journey, any costs relating to dependants, and the cost of planned activities such as private medical treatment.

If the Immigration Officer at the airport feels that you are abusing the visit visa by in effect residing in the UK on the basis of a visit visa (such as by staying in the UK for the full 180 days allowed), he can cancel the visa on the spot and send you back home on the next flight. You will then find getting another visit visa very difficult.

I think the Immigration Officer has already spotted the pattern and hence the warning. That does not bode at all well for either the settlement visa or citizenship application. You are effectively already on record as attempting to frustrate the immigration rules.

by quoting article 62.2 in the covering letter

Can you provide a link to Article 62.2? What document is this Article in?

[SimonW]

https://www.gov.uk/government/uploads/s ... pter62.pdf

That's the link...

[SimonW]

secret.simon,

In another post from June last year you say to someone that 180 days can approximate into 6 months and that the person who wrote the query should not look too much into it. So if I stay for the funeral I will have been in UK 182 days.

The problems with the immigration officer at Heathrow stemmed from me travelling from India on a one way ticket. I accepted that I need a different visa to be staying here extended periods and although there is almost a year to run on the 2year family visit visa I said will make no more entries on it.

The funds in the joint account my husband has set up in his and our child's name can be transferred immediately to his sole account and have been 'his' for the preceding 6 months. I don't foresee any settlement visa problems. The question is whether those 2 days on top of the 180 would cause an issue. I'm placing hope in the grace period too, as some legal underpinning of the situation...

[secret.simon]

In another post from June last year you say to someone that 180 days can approximate into 6 months and that the person who wrote the query should not look too much into it.

In that thread, the person was hemming and hawing about the difference between 180 days and 6 months. Crucially, he had been issued a 6 month visa and he knew that he would be overstaying if he exceeded the specified dates on the visa. With a two year visa, it is the pattern of stay that also matters, as I pointed out in the document I had quoted earlier.

As the document you link to clearly states, you will be unlikely to have issues with getting a visa on the basis of being the family member of a British citizen. But the breaches will be taken into account when applying for citizenship. Naturalisation is not a part of the immigration pathway and different rules, made under different laws, apply.

It may be worth, when you are back in the UK, to apply for an SAR (Subject Access Request) with UKV&I, to find out what they have on record about you. This will typically include any adverse comments that Immigration Officers and other caseworkers may have put on your file.

[SimonW]

Thanks for your insight, it's been a very difficult time for us and we appreciate your communication.

When you say 'citizenship' do you refer to the settlement visa that we will be applying for immediately upon my return to India?

Effectively I will be cancelling my own visa, acknowledging the limitations of it, recognising the pattern to which you refer. Normally we spend the spring and summer in UK and the winters in India. This doesn't constitute living here necessarily - especially since my husband in recent years has been working more in Asia than here. Only this year we had to be here for the winter because of the illness of his mother.

I am leaving voluntarily and paying the fare of course. The grace period seems to provide some technical basis to the situation and gives us confidence. I arrived november 1 and will leave april 30 so I don't go into the 7th month. That's a Saturday. I intend to make my application for settlement in India on Monday 2nd May.

We will provide a detailed covering letter outlining the above and much more. We never intended to live in UK with this visa, the circumstances forced us into staying last winter so we are dealing with it and requesting the appropriate visa for our needs.

This should be tight enough and allow me to be by my husband for the funeral and then return quickly to care for our child. Don't you think?

Thanks again...

[ohara]

When you say 'citizenship' do you refer to the settlement visa that we will be applying for immediately upon my return to India?

They are referring to to applying for naturalisation as a British citizen.

Naturalisation has its own set of rules and one of them is the good character requirement. Breaches of immigration law will earn you a 10 year ban from applying.