Discretion on residency requirements for spouse

[thrope]

Hello,

My wife is a Brazilian national. We married in 2005 and she has indefinite leave to remain since september 2007.

In 2010 I finished my PhD and we moved to another European country for me to take a postdoc job. We were there for 23 months. Apart from that period she has been resident in the UK since 2004. We moved back to the UK 1 year ago and she meets the final year eligibility requirements.

So I have calculated the days away and if we put the application in on 1 Oct 2013 then she has (including the time for my postdoc and other vacation trips to her family) 740 days away in the last 3 years, 878 days in the last 5 years.

I understand that some discretion can be applied to the official requirements. Here are my questions:

- would accompanying me to a postdoc position in another european country be a situation eligible for discretion? It is not a government job, but in science it is very often required to take short term postdoctoral contracts in different countries.

- According to the rules I have read, discretion can be applied up to 540 days if applying as a spouse with 3 year requirement. However, for the 5 year requirement discretion can be applied up to 900 days. In this case she is far out for the 3 year, but I belive would be within the range of discretion that could be applied to the 5 year. Is there any way to have the application considered under the 5 year requirement? I understand it is supposed to be the stricter requirement, so I was hoping meeting that might count for something (also the fact the she would have been eligible under the 3 year requirements 2010 before we moved away).

- More generally, would it be worth putting in an application at this point or would we be wasting our money? We moved out of the UK at the start of November 2010, so I think we have a 1 month window or so now to apply, after which the "resident in UK on day 3 years prior to application day" will not be met which I think is an automatic fail.

Any advice appreciated. Would also be interested if anyone could refer to a reasonably priced lawyer or advisor who could help with these matters.

[Amber]

See Chapter 18, Annex B - 4.1.2 (click)

[thrope]

See Chapter 18, Annex B - 4.1.2 (click)

Thanks I had seen that and read it carefully - it lead me to the questions I asked above. Specifically - is discretion applied for short term overseas jobs in science, and is it possible for a spouse application to be considered under the 5 year requirement rather than the 3 year?

[Amber]

Perhaps:

the excess absences to have been an unavoidable consequence
of the nature of a career (for example a merchant seaman or
someone in UK-based business or employment which requires
frequent travel abroad);

[thrope]

Thanks. Yes I had read that. But it still leaves some aspects open to interpretation. There are jobs in science in the UK - it is not the same as being a merchant seaman. I guess I was hoping for someone with specific experience either way.

However, the second one is the more important. According to the letter of those regulations she would not be eligible, having absence much higher than the maximum discretion allowed in the last 3 years (540 days). But if she was considered under the 5 year regulations, she would be elible (allows up to 900 days according to that document). So is it possible they would consider her application under the stricter 5 year regulations rather than the 3 year regulations?