Indefinite Leave to Remain Question

rle · Post by **rle** » Sun Jul 17, 2011 11:24 pm

I am a US/CAN citizen and I have an Entry Clearance Visa as a spouse of a British Born citizen and was given 27 months to file for ILR. I am coming to the end of my 27 months and I have completed the Life in the UK test and I am told I need to complete a SET M form. I have recently learnt that I didn't need to wait two years because we had been married for more than four years when I applied for the entry clearance in 2009. Over the last year we are living 50% in the USA where we are trying to sell our house and currently work there and 50% in the UK where we are taking turns caring for my wife's 95 year old father in the UK. I have also been told on another forum that my SET M application will be rejected because my wife isn't settled and present in the UK. But why should she be if we are moving as a couple who are currently living abroad. What should I do next. Should I put in the SET M application in person at a PEO? Should I ask for an extension? The SET M form seems to be created for newly married couples who have to be in the UK for two years before applying. I only have docs going back one year in the UK.

Post by **Greenie** » Sun Jul 17, 2011 11:44 pm

what does the endorsement on your entry clearance/visa actually say?

rle · Post by **rle** » Mon Jul 18, 2011 11:21 am

My Visa is a: UK Entry Clearance from:10/05/09 to 10/18/11
Number of Entries: Multi
Type: Settlement Spouse/CP(KOL REQ)
No recourse to public funds
Number of Dependents: 0

It is stamped 2009 when I first entered the UK after receiving the Visa for a short stay of three weeks. I have four more stamps from customs when I have entered on subsequent stays.

Post by **Casa** » Mon Jul 18, 2011 12:10 pm

If your British wife hasn't been living with you in the UK since you were granted your settlement visa in 2009, then you are unable to apply for SET(M).
Your best option would be to return to the US and re-apply for a 2 year spouse visa when you are both ready to re-locate permanently. A FLR(M) application isn't likely to succeed either if you haven't taken up residency together here within the 2 years since the visa was issued.
The 50% you mention. Was this 50% spent without your wife in the UK...and during her 50%, you were in the US? Virtually no time spent here together?

rle · Post by **rle** » Mon Jul 18, 2011 2:12 pm

[quote="Casa"]If your British wife hasn't been living with you in the UK since you were granted your settlement visa in 2009, then you are unable to apply for SET(M).
Your best option would be to return to the US and re-apply for a 2 year spouse visa when you are both ready to re-locate permanently. A FLR(M) application isn't likely to succeed either if you haven't taken up residency together here within the 2 years since the visa was issued.
The 50% you mention. Was this 50% spent without your wife in the UK...and during her 50%, you were in the US? Virtually no time spent here together?[/quote]
If I was to re-apply for settlement again from the USA would it be more difficult since now I would applying a second time? And now that I have my Life in the UK test Certificate, would I have to apply for SET M when I re-enter the UK? I do live with my wife but we have spent periods apart as one takes care of our house and pets and works in the USA and one takes care of her father who is elderly. our time apart over that last year is about 50% I would guess. Is there no consideration for financial hardship, or for those who work outside of the UK. My wife travels to teach workshops in Ireland, and Mexico and she is involved in an association in the USA as an examiner. How can we maintain our income and apply for SET M if we have to travel so much? I am leaning to applying with the SET M by post and having our docs checked by the checking service. If we reapply or postpone my application our situation may be more complicated. I feel we have acted properly and with in the rules if we apply with in the 27 months deadline. I don't remember ever being told that I had to take the Life in the UK test immediately after I was granted the settlement visa. If I did get the KOL cert. I still would have had to submit a SET M and I wouldn't have had a chance to get a bank account, Util. bill, etc. Isn't it enough to show that we are married and that our relationship hasn't changed?

Post by **Casa** » Mon Jul 18, 2011 2:48 pm

You didn't have to take the KOL test immediately, but you did need to settle with your wife (your sponsor) in the UK when the visa was issued. You would have been asked if this was your intention on the application form.
Bear in mind that it will be evident to the Case Worker how much time your wife has spent with you in the UK. In my opinion you will waste your application fee.
What you need to show is documented edvidence of 2 years residence with your wife in the UK, which it appears you're unable to do. The case worker could take the view that there was an element of deception in your settlement application.

rle · Post by **rle** » Mon Jul 18, 2011 3:15 pm

[quote="Casa"]You didn't have to take the KOL test immediately, but you did need to settle with your wife ([b]your sponsor[/b]) in the UK when the visa was issued. You would have been asked if this was your intention on the application form.
Bear in mind that it will be evident to the Case Worker how much time your wife has spent with you in the UK. In my opinion you will waste your application fee.
What you need to show is documented edvidence of 2 years residence with your wife in the UK, which it appears you're unable to do. The case worker could take the view that there was an element of deception in your settlement application.[/quote]
I know that the Border agency information phone isn't allowed to advise me but when I called them in regards the the timing of my application they said I should how docs of residency from both the US and UK which are joint in both names to show we are still in a married relationship. The woman on the phone didn't see a problem as long as we applied before the deadline. I didn't get into the details of when we entered and left the UK. If they granted us the settlement visa in 2009 based on marriage and are relationship hasn't changes and I simply had to take the KOL once in the UK what has changed?

If I re-apply for settlement from the USA with my Life in the UK Cert. completed will the process be any easier? Or will I have to still submit a SET M and all the evidence the second time around?

Post by **Casa** » Mon Jul 18, 2011 3:46 pm

What has changed? Your wife sponsored you to settle with her in the UK. You didn't settle here with her and she remained resident in the US. Unfortunately UKBA call operators rarely have sufficient knowledge to advise on the validity of an application, especially when in your case you didn't give them the full facts of how much time you'd spent apart.
If you re-apply from the US you will be applying for a 2 year settlement visa as you won't have been living outside of the UK for the most recent 4 years with your wife. i.e You've broken the joint residence. You can't be resident in two countries.
You really need urgent professional advice on this.

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Indefinite Leave to Remain Question

Indefinite Leave to Remain Question