ILR Application AFTER first year expired

diggo · Post by **diggo** » Sat Jan 15, 2005 8:19 pm

hello,
i'm married to a UK citizen, and i was given a one year settlement visa in oct 2002, but i didn't extend and left the uk beofre the year expired. now if i want to apply again will time spent there be counted towards ILR and cirtzenship? or do i have to start fresh again?
thx

Kayalami · Post by **Kayalami** » Sun Jan 16, 2005 8:12 pm

Assuming you intend to return to the UK on the basis of the above marriage you would need to re-apply for settlement visa at the relevant British Diplomatic Post initially issued for 2 years. A month (or rather 28 days) before the 2 year anniversary you can then apply for ILR. In both applications you would have to meet the requirements of the immigration rules pertaining to being the spouse of a person present and settled in the UK (or returning at the same time as you to the UK on this basis). Out of interest are you able to disclose the reason why you left the UK prior to the initial 1 year visa?

Good Luck

diggo · Post by **diggo** » Sun Jan 16, 2005 10:24 pm

thank Kayalami,
so i take it from your reponse that the first year doesn't count?? but we have been married more than 4 years and we have kids (i assume they r BC because of thier mom), do i get ILR STRAIGHT AWAY? instead of the 2 years period.
as for the reason i didn't stay, i just didn't find the right job for me, and i didn't want to be doing nothing for a long time? and i hope we get lucky this time?
thx again

Post by **John** » Mon Jan 17, 2005 7:46 am

diggo, now you give the relevant information!

If you have been married at least 4 years it should now be possible to obtain your ILR abroad. That is, when you apply for your settlement visa, make a point of saying that you have already been married for over four years and that they should issue an ILR visa. Not all embassies/consulates are totally up-to-speed on that change which was introduced on 01.04.03.

As far as naturalisation is concerned, it is a question of looking at the detailed facts but as you are married to a British Citizen :-

you must have been physically in the UK exactly three years before IND receive your application
you must not have been outside the UK for more than 270 days in the three years before IND receive the application
you must not have been outside the UK for more than 90 days in the one year before IND receive the application
you must have an ILR visa

So you really do need to make those calculations. It might be that the period already spent in the UK will count for nothing ... on your facts.

Kayalami · Post by **Kayalami** » Mon Jan 17, 2005 1:46 pm

The 4 yr route applies to those who have been outside the Uk with their settled spouse for 4 or more years - my interpretationof this rule is that said period must be continuous. Depending on the date of your marriage and time in UK on your initial 12 month visa you may or may not meet this criteria.

Post by **John** » Mon Jan 17, 2005 2:02 pm

Kayalami, I stand corrected, as the immigration rules in para 281 say :-

..... the parties were married at least 4 years ago, since which time they have been living together outside the United Kingdom

Which seems to suggest that as diggo has lived with spouse in the UK for part of the time he might not qualify for the issue of an ILR visa. So he might just get the normal two-year spouse visa.

However ... slightly tongue in cheek ... no harm in mention being made that the marriage occurred over 4 years ago. How the ECO wishes to interpret that is up to them.

diggo · Post by **diggo** » Mon Jan 17, 2005 6:49 pm

thx John and Kayalami,
I tend to agree with John though, that the point here is that the marriage is sbustantial and continous for a peroid of 4 years or more, and that both parties have been living together!!

Kayalami · Post by **Kayalami** » Mon Jan 17, 2005 8:17 pm

diggo wrote:thx John and Kayalami,
I tend to agree with John though, that the point here is that the marriage is sbustantial and continous for a peroid of 4 years or more, and that both parties have been living together!!

No one doubts the sincerity of your statement pertaining to the subsistance of the marriage - nevertheless the rules clearly state the relevant 4 year period must be outside the UK. It would be unduly harsh for an Entry Clearance Officer to count short periods of time in the UK againt you for this clock but if you spent a substantial portion of it here then you are expecting a high level of discretion..you may or may not get it. As per John's comments perhaps giving the relevant details might help us better assess your chances i.e.

1. Date of marriage.

2. Date of entry into the UK and if on basis of 1.

3. Date of grant of the initial 12 month visa.

4. Date you left the UK as per your 1st post.

Likewise all trips in and out of the UK since then and their nature inclusive of the presence/ accompanying or otherwise of your spouse and/or dependents....not so simple now is it

diggo · Post by **diggo** » Mon Jan 17, 2005 8:45 pm

Ok here we go
1. date of marriage is 8/2000
2. date of grant of 12 months visa and actual entry on the basisi of 1 is 10/2002
3. we left uk 2 months after entry.
4. entered on a visit visa recently for 2 weeks to assess the situation and see if i would like to stay permanently.

on the other hand, we have 2 kids but we didn't apply for thier BC ? will that make any psitive or negative impact?
thx

Kayalami · Post by **Kayalami** » Mon Jan 17, 2005 8:57 pm

Ok here we go
1. date of marriage is 8/2000
2. date of grant of 12 months visa and actual entry on the basisi of 1 is 10/2002
3. we left uk 2 months after entry.
4. entered on a visit visa recently for 2 weeks to assess the situation and see if i would like to stay permanently.

Ah now we see a light - from given details you should be o.k. to get immediate ILE if you can satsify to the ECO as to the subsistence of your marriage outside the UK in the 4 years prior to the application as well as the other requirements of the rules. No ECO in their right mind should penalise you for the 2 month stay - it would be unduly harsh and may harm their career prospects were an appeal to be raised.

on the other hand, we have 2 kids but we didn't apply for thier BC ? will that make any psitive or negative impact?

Will be considered an aspect of the said subsistance plus weighs things in your favour in view of the Human Rights Act but will be taken as part of an overall context. Assuming their mother is a UK citizen by birth, registration or naturalisation in the UK then the kids are automatically BC's and entitled to British Passports - how are they travelling at the moment?

diggo · Post by **diggo** » Mon Jan 17, 2005 9:04 pm

thanks again Kayalami, you are a great help.
the kids incidently are born in 2 different countries, so they hold different passports and actually this is one of the reason s that prompted us to decide to move to uk, so all of us would have the same passports when travelling,
we do travel around alot, and it's a hassel for all of us travelling on different passports and waiting in different lines at the airport ! it's a drag.
now, will the kids be able to apply for BC from inside or they have to apply aborad? and if abroad can both of them apply at the same country or they have to apply at thier repective birth place?

Kayalami · Post by **Kayalami** » Mon Jan 17, 2005 9:09 pm

If the mother meets the stated criteria as to her obtaining BC then make the kids passports applications at the same post as your settlement application. I presume you are all legal term residents/ nationals of the country in question..not to be a pain but its easier if country names and relevant status (citizen, permanent resident) are detailed..this may or may not be an issue for you in a public forum.

bisonic · Post by **bisonic** » Tue Sep 15, 2009 8:21 pm

Hi all,
I think I have a similair situation.
I wonder if you could advise?
I am a UK national and my Canadian wife's UK permanent residence visa
ran out in June 09 (after 2 years). Unfortunately her father took ill and she missed the deadline to apply for Indefinite Leave to remain. Can you advise
what steps we need to take now to apply for this? She is currently in
Canada with her family.
Many thanks,
Sean Phillips

Post by **John** » Tue Sep 15, 2009 10:23 pm

bisonic, unfortunately she will need to apply for a further time-limited spouse visa, in order to return to the UK.

bisonic · Post by **bisonic** » Tue Sep 15, 2009 11:16 pm

John wrote:bisonic, unfortunately she will need to apply for a further time-limited spouse visa, in order to return to the UK.

Thanks John,
I thought perhaps ya. So you think get the 2 year temporary leave to remain visa and then apply for Indefinite?

Many thanks for your thoughts - there is no info on the official sites for this scenario.

immigrationuk2009 · Post by **immigrationuk2009** » Wed Sep 16, 2009 11:10 pm

bisonic wrote:
John wrote:bisonic, unfortunately she will need to apply for a further time-limited spouse visa, in order to return to the UK.
Thanks John,
I thought perhaps ya. So you think get the 2 year temporary leave to remain visa and then apply for Indefinite?

Many thanks for your thoughts - there is no info on the official sites for this scenario.

Hi

Everybody missed one point..Life in UK Test so even they qulaify for 4 years rule they would not ILR.

So first they have to apply for spouse visa with KOL required stamp and once in Uk she can pass life in uk test and can apply for ILR.

So ILR at this moment is impossible.

Apply for spouse visa again.

UK_Banned_Member

Post by **John** » Thu Sep 17, 2009 8:17 am

Everybody missed one point..Life in UK Test so even they qulaify for 4 years rule they would not ILR.

So first they have to apply for spouse visa with KOL required stamp and once in Uk she can pass life in uk test and can apply for ILR.

Missed what point? Why do you think that the "KOL REQ" endorsement is due here? There is nothing in the posts to suggest it might be due.

immigrationuk2009 · Post by **immigrationuk2009** » Thu Sep 17, 2009 9:03 pm

Hi

John wrote:
Everybody missed one point..Life in UK Test so even they qulaify for 4 years rule they would not ILR.

So first they have to apply for spouse visa with KOL required stamp and once in Uk she can pass life in uk test and can apply for ILR.
Missed what point? Why do you think that the "KOL REQ" endorsement is due here? There is nothing in the posts to suggest it might be due.

Well If you read above posts,many said he would qualify for ILR on four years marraige basis but I said even he qualifys he would not be able to get ILR as he has not passed life in uk test yet.

So ILR outside uk is not possible for this case.They have to apply for spouse visa first and once in uk after passing Life In Uk test they can apply for ILR.

Hope answer yours questions.

If they qualify for ILR on four year marriage then they would be issued spouse visa with KOL required.

Hope answer your questions.

UK_Banned_Member

Post by **John** » Thu Sep 17, 2009 10:21 pm

Well If you read above posts .......

I think you carefully need to look at the dates of the above posts, and who has posted those posts.

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ILR Application AFTER first year expired

ILR Application AFTER first year expired

Temporary Right to remain run out