Advice sought......please.....

[heidi205]

Hi,
I was hoping you could offer some advice. I came to the UK in May 2001 on a 4 year ancestry visa. At the completion of this visa I was granted a 3 year extension (too much time out of UK for ILR to be granted).
In the interim I have met and married a UK citizen (after meeting in 2003, and being married in March 2007).
The expiry date for my ancestry extension is in March, and I want to apply for ILR but I fear I have been out of the UK (around 540 days- some holiday, some to care for my ill father in Australia) will mean the application will be rejected, despite my now having lived in the UK for almost 7 years (I have not 'resided' out of the UK since my initial entry-my longest trip abroad was 75 days duration), my husband being a born and raised Brit, and having been gainfully employed in the UK for the duration of my UK residence.
Unfortunately I have made several calls to Immigration making enquiries and I frequently receive different (and sometimes completely opposite answers to my questions). I am supposing that my only remaining option is to apply for a 2 year marriage visa, but I have some concerns about this as well. Will having a marriage visa mean I can't leave the UK for holidays for 2 years?? And my husband and I were married in Australia, will our marriage be 'recognised' here in the UK for the purposes of applying via FLR(M)? Furthermore, on the FLR(M) application form, question 5.2 'Were you granted a certificate of approval for marriage or civil partnership?' What does this mean?
We've found the whole situation pretty stressful (as I'm sure many on this site with immigration concerns do), but after having lived in the UK for 7 years, we were hopeful I would be entitled to a little more than a mere two year extension based upon my husbands nationality.
We've made an appointment at the Croydon PEO for 2 weeks time, and I have made the appointment to apply for ILR as I believe I have fulfilled the requirements set down in the application form and guidance notes. At no time have I 'resided' (ie lived/paid taxes/worked/paid utilities, rent etc) out of the UK. I suspect you will tell me that that application will in all likelihood be refused, but I'm not sure why I should be forced to go down the marriage visa path (after nearly 7 years residence), and then turn around in 2 years time, fork out yet another fee to apply for ILR, especially as the Home Office will have probably changed the rules again by then.
Any advice or information would be greatly appreciated.

Many thanks

[vinny]

It may help if you can provide evidence that your father was ill and you went to give him support. They may disregard your absences from the UK while you were looking after your father, on compassionate grounds.

Changing to spouse status (Application form FLR(M)), should you need to, will not mean that you cannot spend holidays outside the UK (Chapter 8 - Family members, Section 1 - Spouses > 4.5. Further guidance). Your marriage in Australia will be legally valid in the UK if it is legally valid in Australia (13.10 - Validity of marriages). COA are not required for marriages or civil partnerships outside the UK.

Good luck!

[paulp]

Heidi, is the 540 days spent outside the UK for the last 5 years or the whole of your 7 years?

[heidi205]

Hi Paul and Vinny,
Many thanks for your replies, much appreciated. I've been reading through the links you have provided.
In response to your question Paul, the 540 days out of the UK is since 29.05.01.

[Dawie]

Just get a new ancestry visa...they can be renewed indefinitely.

[paulp]

And how many absences do you have in the last five years?

After the recent changes that the home office has been making to the ILR requirements, it would be a good idea to get it asap.

[heidi205]

Hi Paul, I've had several absences, but no single trip exceeded 3 months.

As for the ancestry visa being renewed indefinately, I have been led to believe that it can not be renewed more than once. If anyone has any info regarding a link to the relevant extension information, that would be great (something specific in writing on IND website confirming that an ancestry visa can be renewed more than once).

Many thanks again for suggestion and assistance.

[Dawie]

From http://www.bia.homeoffice.gov.uk/ukresi ... mancestry/:

If you have already entered the United Kingdom with a different kind of visa, you cannot switch to the United Kingdom ancestry category. We will only give you permission to stay in the country on the basis of United Kingdom ancestry if:

* you entered the United Kingdom holding entry clearance based on your United Kingdom ancestry; or
* we have already given you leave to remain based on United Kingdom ancestry.

Please see the above. There is nothing in the immigration rules preventing someone from indefinitely renewing an ancestry visa provided they meet the requirements, nor is there is there anything limiting a renewal to one only. You have been incorrectly informed.

[VictoriaS]

Absolutely. I know several people who have extended twice, due to the cost of ILR or failing the test (yes, I know, but she didn't actually revise and got drunk the night before!).

Victoria

[paulp]

Heidi, you were effectively given that last extension to reduce your days of absence from the UK. Did the bulk of that 540 days occur before the last 5 years or after? Have you actually reduced your absences (per year) in the last 5 years?

[heidi205]

Hi Paul,
My absences from the UK in the last 5 years have been as follows:
2003- 104 days
2004- 74
2005- 114
2006- 38
2007-38

Victoria, Thankyou for your reply, I managed to sneak through the test (just sober enough!), but may not require it if ILR not granted based on absences!

[paulp]

Hi, your total for the last 5 years is now a manageable 368 days and you haven't been out of the UK for more than 90 days in any one spell out of the country. BTW only count full days that you've been out of the UK, don't count your travel days.

To be on the safe side, you may also appeal to the case worker's better side, these must have been difficult times caring for your father (compassionate grounds).

[paulp]

BTW, these are the Chapter 5 - Annex F IDIs that relate to your case. They're from Dec 06 though.

3. CALCULATION OF THE FIVE YEAR PERIOD FOR SETTLEMENT
In assessing whether or not an applicant has fulfilled the requirement to have spent 5 years in continuous
residence in the same capacity, short absences abroad, for example for holidays (consistent with annual paid
leave) or business trips (consistent with maintaining employment or self-employment in the United Kingdom),
may be disregarded, provided he has clearly continued to be based here.

3.1. Discretion in cases where continuous residence has been broken
In addition, time spent here in this capacity may exceptionally be aggregated, and continuity not insisted upon,
in cases where:
• there have been no absences abroad (apart from those described in paragraph 3 above) and authorised
employment or business here has not been broken by any interruptions of more than 3 months or
amounting to more than 6 months in all; or
• there have been longer absences abroad, provided the absences were for compelling grounds either of
a compassionate nature or for reasons related to the applicant's employment or business in the United
Kingdom. None of the absences abroad should be of more than 3 months, and they must not amount to
more than 6 months in all.
NB: Decisions in such cases must be taken at HEO level or above.