Query about changing status from Ancestry to Marriage

[kiwichick]

Hi

I am hoping that I may be able to get some answers to my query regarding changing my status. So far I have asked several sources including IASUK, British High Commission (New Zealand) and the immigration advisor that my work uses but can't get a straight answer.

I am currently on a 4 year Ancestry Visa that will end in July 2007. However, with the new rules I am hoping to find the quickest (and hopefully cheapest) route of eventually getting British Citizenship.

I am a New Zealand citizen and married my British husband in February 2003, we came to the UK in July 2003 but were advised by the British High Commission when we looked at visas that they would not look favourably upon a marriage application as because my husband had been living with me in NZ for the previous 3 years he had no job and no home in the UK. They suggested that as the Ancestry route was open to me that I should do that.

I have now been told by a couple of different sources that to switch to marriage at the moment would mean an additional two years probationary period on a marriage visa before I could apply for ILR. However, there appears to be an option to apply directly for ILR/settlement after 4 years of marriage (February 2007 in my case)... but most sources seem to imply this needs to be done from outside the UK.

IASUK said that I could apply from within the UK (which is my ideal option)
The British High Commission said it had to be from outside the UK
The immigration advisor said it couldn't be done at all and that I would have to do the 2yrs probation.

If I need to apply from outside the UK then I will need to return to NZ which is relatively high cost, plus would involve a large amount of time off work (processing guidelines vary from 3 weeks to 8 weeks according to the website). I am also currently completing my professional qualifications in the UK (as they would only accredit part of my NZ qualification) and the timing wouldn't be great for study and exams.

At one point when I spoke to the IND they said that I could try applying in person and seeing if a case officer would make a discretionary decision but there was no guarantee so I'm currently reluctant to do this as the in person fee is very high.

I would appreciate any suggestions - or any evidence of whether others have been able to apply while in the UK.

[JAJ]

I am currently on a 4 year Ancestry Visa that will end in July 2007. However, with the new rules I am hoping to find the quickest (and hopefully cheapest) route of eventually getting British Citizenship.

I am a New Zealand citizen and married my British husband in February 2003, we came to the UK in July 2003 but were advised by the British High Commission when we looked at visas that they would not look favourably upon a marriage application as because my husband had been living with me in NZ for the previous 3 years he had no job and no home in the UK. They suggested that as the Ancestry route was open to me that I should do that.

I'm not sure if you were well advised back in 2003, most British citizens living overseas have little problem sponsoring for a spouse visa. If you had gone that route you would have ILR and probably naturalisation by now.

If you go for a spouse visa now, it's still 2 years to ILR so you may be better off continuing on your ancestry visa. It's 5 years to ILR for ancestry now, so you will be eligible in mid 2008 (you'll need to extend your ancestry leave to remain next year). If you went for a spouse visa, timescale for ILR would be about the same, however you might then have issues if your marriage ended before ILR.

I don't know if they let people go straight to spouse ILR if they are in the UK. You really would need an immigration lawyer to discuss this in more detail.

One piece of good news : once you have ILR you'll be able to apply for naturalisation immediately as you're married to a British citizen and have lived in the UK for 3+ years. The fact you would have acquired ILR through ancestry would not matter.

And off topic but ...

Have you got children? If so, they can be registered as New Zealand citizens by descent, assuming you are born/naturalised in NZ. However you need to know that should they live in NZ in future, they can "upgrade" to full NZ citizenship (by naturalisation), which would allow them to pass on NZ citizenship to *overseas* born children. http://www.citizenship.govt.nz has details.

[ppron747]

.....If you go for a spouse visa now, it's still 2 years to ILR so you may be better off continuing on your ancestry visa.

I believe that, where the marriage has subsisted for four years or more, successful applicants for spouse settlement visas (overseas) are given ILE immediately - I assume on the basis that a marriage that has lasted four years doesn't need a two year probationary period. (I can't get onto the IND site at the moment, to give a link)

Unfortunately, I don't know the answer to whether it is possible to switch in UK and get immediate ILR.

kiwichick If IASUK told you that it is possible, why not call their bluff and ask them to specify how? They really shouldn't be giving out half-formed advice...

[John]

A direct path to ILR/ILE for the person applying for a spouse visa? Regretfully I think para 281(i)(b) is quite clear, with my emphasis :-

the applicant is married or the civil partner of to a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom;

As the couple here have been living together in the UK I can't see how Indefinite Leave comes into play.

If you go for a spouse visa now, it's still 2 years to ILR so you may be better off continuing on your ancestry visa. It's 5 years to ILR for ancestry now, so you will be eligible in mid 2008

I think the problem with this is that the OP only has a 4-year ancestry visa, and now cannot avoid applying for a further visa, of some sort, in the UK. That is, if they stick on the ancestry path then in a year's time they will need to apply for a further 1-year ancestry visa.

Accordingly I think they should now apply for a 2-year spouse visa. That spouse visa is a better choice as it has no work requirement attached to it. After all an ancestry visa is a type of employment visa.

So kiwichick, apply for a spouse visa now .... rather than a further ancestry visa in one year time. Yes either would lead to ILR in two years time .... but a spouse visa is preferable.

[kiwichick]

Thanks for all your comments:

JAJ - I was very much wrongly advised initially while in New Zealand (pretty common to be honest when I speak to other Antipodeans I know - including a South African who got told it was fine to enter on a Tourist/Visit Visa and then switch to Spousal once in the UK). It's part of the reason I'm trying to get as many different opinions on this now.

Ppron 747 - I will try and get more info from IASUK however, they appear to be reluctant to put things in writing (probably to avoid getting into trouble when they give incorrect advice).

John - The UK High Commission in NZ have confirmed by email that I can switch to ILR after 4 years marriage if I return to NZ for processing so obviously the requirement to live outside the UK isn't actually a requirement (or once again they are giving wrong advice...).

I have got back in touch with the High Commission and asked some more detailed questions so I'm hoping that will help. Alternatively, the South African mentioned earlier suggested I just go to the local processing office and try them - although it is very much against policy and rules that's how he got his visa status sorted (after being told on entrance that he was here illegally and would need to return to South Africa).

[JAJ]

As the couple here have been living together in the UK I can't see how Indefinite Leave comes into play.

Unless through a concession outside the Rules? (I'm not saying it's possible, just raising the question).

Accordingly I think they should now apply for a 2-year spouse visa. That spouse visa is a better choice as it has no work requirement attached to it. After all an ancestry visa is a type of employment visa.

So kiwichick, apply for a spouse visa now .... rather than a further ancestry visa in one year time. Yes either would lead to ILR in two years time .... but a spouse visa is preferable.

You are right that ancestry has a work requirement while spouse visa does not. But at the same time, doesn't spouse visa have risks should the marriage end within the 2 year period?