Evidence that you have permission to be in the country you are applying from

[why-is-this-so-hard]

Hi everyone,

I'm posting here as a last ditch effort to this contentious point in our family Visa application. Everyone seems to have a different take, and some immigration lawyers have even refused to work with us because of this.

I am a UK citizen and have been in a relationship for almost three years (this has been long distance on paper but in practice we've been seeing each other almost every month thanks to remote work). Late last year we decided we'd like to settle in the UK, and got married in Gibraltar.

We have satisfied all the requirements (Proof of Relationship, Financial, Accommodation, English) however there is one big question mark around the "Evidence that you have permission to be in the country you are applying from" requirement.

My wife is Brazilian but is currently a resident in Italy with a 'permesso di soggiorno' for family reunification. Her latest permit expired in March 2023, and although she has followed all the rules to get this renewed on time, due to a large backlog we are still waiting for the new permit to be issued (it's been stuck in a pending status for several months).

While this is pending, she can still legally work in Italy and even travel in and out of the country at will, but all we have in terms of documentation is:

• An Italian ID Card valid until 2032

• A residence permit which expired on March 2023

• A receipt from the Italian Post which is what affords her the legal right to be in Italy (screenshot below)

There is no official letter that we can get from an immigration authority to state that she has the legal right to be in Italy - they simply refuse to write one. All we have to go by is this web page from the Italian police: https://www.poliziadistato.it/articolo/ ... emporarily

Do you believe this would be enough to satisfy the requirement? We are afraid that UKVI might think she has overstayed her permit, which is not the case. We are also happy to pay for an immigration lawyer to help us, but once again we have been refused due to "lack of expertise in this area"

Any help or guidance would be very much appreciated.

[Frontier Mole]

Officially until her residency in Italy is evidenced / renewed she is in the horrible grey zone where she has a right to remain but not confirmed residency. In my opinion it would be a high risk attempt to apply even with an explanation letter and the evidence you have.

I don’t believe it would be an absolute guaranteed refusal as there is some merit. The U.K. operates a similar system for pending applications and we also don’t issue letters that state continued leave, but the law is clear that your previous leave continues as long as you applied before visa expiry.

If you are prepared to gamble the application fee that would be your choice. There is a rush of applications due to the announcement of the increased earnings requirement, I you meet the new limits I would hold back and wait it out. If you don’t meet the new limit then this is a gamble you really have to take.

[why-is-this-so-hard]

Thank you so much for your input @Frontier Mole.

While we would still fortunately meet the financial requirements after the income threshold raise (and IHS increase), it's incredibly frustrating to be living separately as a married couple due to the inefficiencies of Italian government. The Questura has literally broken their own laws which state that these renewal requests need to be processed within 60 working days, which has long passed.

We have even considered flying her back to Brazil to apply from there, but it would take several weeks to formally move her residence back there, and would probably raise eyebrows for our UK Visa application.

While she is luckily still able to travel to the UK with that receipt (and the Brazil/UK visa waiver program), we feel completely stuck and our lives are on hold until we can get her here with her full visa.

Do you think applying through an Immigration Lawyer may help our chances, if we manage to find one willing to take our case? Thank you again for your input.

[CR001]

but it would take several weeks to formally move her residence back there, and would probably raise eyebrows for our UK Visa application.

Why would it raise eyebrows?? It would not. She is Brazilian, returning to Brazil to apply for a visa. You are overthinking this point.

Do you think applying through an Immigration Lawyer may help our chances, if we manage to find one willing to take our case? Thank you again for your input.

It makes absolutely no difference if you use one or not. They have no influence on UKVI and visa processes. It is simple, you either meet all the requirements or you do not.

[why-is-this-so-hard]

@CR001 Noted on the Immigration Lawyer, thank you for the information. I thought I saw a thread on Reddit where that claimed ECOs may be less inclined to deny an application if they see it's being done through a lawyer, but I guess you can't trust everything you see on the internet (and it might have even been written by one).

Regarding her return to Brazil, my worry is that might raise eyebrows about our relationship and all the evidence we have submitted thus far (flights, photos, messages) around the validity of her permit(s) to be in Europe and the UK for this period - after all you wouldn't approve someone who has broken immigration laws elsewhere - but you are right we may be overthinking this.

I've actually done some more research and found a directive from the Ministero dell'Interno (5 agosto 2006) which explains that you have full legal rights as an Italian resident while the permit is being renewed. I wonder if getting a certified translation of that and including it (along with a brief supporting statement) would have any impact?

[why-is-this-so-hard]

I don’t believe it would be an absolute guaranteed refusal as there is some merit.

Out of interest, on what grounds could they refuse her visa? I had a pretty thorough look through all the Family visa documents on Gov UK (including the Appendix FM and FM-SE, etc...) and there is no mention of refusal based on this situation... Would be keen to understand more around the reference/reasoning ECOs would be using here.

[Frontier Mole]

It is in the general grounds for refusal. An application is to be made from a country the applicant has residence be it through country of origin or visa that is regarded as long term or has indefinite leave to remain.
It is designed ( somewhat in an old fashioned way where it was paper applications) to stop country hopping to apply from say France in order to gain a return of to leave the UK.
The control mechanism is now the giving of biometrics in the country of residence , so it pretty outdated.
Will dig out the bit that says about applying from a country other than that you hold residency.
There are certain visas that don’t require residency - visitor visas as an example

[Frontier Mole]

28. An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application. An application for an entry clearance as a visitor or as a short-term student or under Appendix Ukraine Scheme must be made to any post designated by the Secretary of State to accept such applications. Subject to paragraph
28A, any other application must be made to a post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Where there is no such post the applicant must apply to the appropriate designated post outside the country or territory where he is living.

[why-is-this-so-hard]

In my opinion it would be a high risk attempt to apply even with an explanation letter and the evidence you have.

We actually just heard back from a solicitor... Here's what they said: "In the given circumstances, your partner will still be considered as resident in Italy her lawful stay is extended by virtue of pending application which she made prior to the expiry of her permission to stay in Italy and all this can be explained to the UKVI in legal terms. We can provide the required legal services for your application, if required, for a fixed fee of [redacted] to cover all our work on your partner’s application."

Thoughts? Is this legit or just a sales pitch? Always wary of lawyer services that don't offer your money back if your application gets refused...

[Frontier Mole]

I would be inclined to apply but don’t use the lawyer

[why-is-this-so-hard]

Hi everyone,

I'm circling back with an update in the hope that this post will get indexed by Google and save some others in a similar situation from all the trouble and uncertainty that we went through.

We ended up deciding not to wait, as we found out that the residence permit wouldn't be ready until April and we wanted to avoid the increased IHS fee.

After putting together all the documentation, we consulted a UK immigration lawyer.

We used their document checking service (£350 GBP) because I had 95% of the documents done already and in the correct format thanks to this forum and the r/UKVisa subreddit.

He did give some valuable advice on a few areas, the most important of which being a recommendation to hire an Italian immigration lawyer and ask them to write a letter (in English) confirming that she is legally resident in Italy throughout the renewal process. More importantly, he gave peace of mind by saying "based on what you have shown me today, I believe you have a 99.9% chance of being approved"

We found an Italian Immigration lawyer, got the letter (€200 EUR), applied to UKVI, did the biometrics, paid for priority service, and then 15 working days later we got the approval. Her flight to London is on Thursday.

Definitely worth paying a little bit of cash for a consultation with a lawyer. In hindsight, I would've paid the £1000+ GBP to do the entire process via the lawyer, as I ended up spending a lot of precious time doing research which I could have just delegated. Everyone's circumstances are different, but if you have the means and are in a non-typical situation, then definitely hire a lawyer.