Urgent: Visitor Visa for Spouse

[sam_145]

Hi everyone,

I am in a tricky situation. I am on Tier 1 visa currently and my wife is on Tier 1 Dependent. My wife is 20 yrs old now and will be 21 in 2012.

I am due for ILR next month but as I understand my wife cannot apply with me as she is not 21 (according to the new rules.). Her Tier 1 Dependent visa will run out in May and I guess she will have to go back. And I cannot apply for a dependent of a settled person visa till she turns 21. (which will happen in Feb 2012).

My question: Is there anyway my wife can apply from India as a visitor or something and be with me for that period? We will be pleased even if she gets a 6 month visit visa. She can then go back and apply for dependent when she is 21 next year.

All suggestions welcome.

[sam_145]

Anybody? experts? Please give your suggestions..

[vinny]

How long has your wife been living with you in the UK? If she has been living with you in the UK for at least two years, then she may apply for ILR with you (319E). Else, switch.

Appeal if refused.

[sam_145]

Thanks for your advice.

No.. She has been here for only 8 months.

Can I apply for a tourist visa from India? If so what are the do's and dont's?

[Greenie]

She should apply to switch to be the spouse of a settled person as suggested above. If it is refused on age grounds you w ould be very likely to win on appeal because of the current case law and also because she has already been granted leave as your spouse. There may even be an exception to the rule in your situation given that she was granted leave as your spouse before the rules changed. Can check this tomorrow unless someone already knows the answer to this.

[sam_145]

Thank you very much for your replies.

What is the current case law that you are referring to with regards to age? Can you give me some more details on it please?

I did call UKBA and explained my case. Their representative clearly said she won't get a dependent of ILR visa, if she isnt 21 on the day she applies. She was also astonished that we managed to get a visa for my wife.According to her, my wife shouldn't have been granted a Tier 1 dependent visa also because she was only 19 yrs old. Then she went on to say since we already have visa its fine, but my wife will have to go back when it runs out. And then when she turns 21, apply for dependent of settled person.

Also, what is the best approach? Should we apply from within UK? Or is it better if we apply from India?

[Greenie]

Application from within the UK. Otherwise she'll be stuck outside UK.

Search in forum for quila and you'll find the case law.

[Greenie]

http://www.immigrationboards.com/viewto ... sc&start=0

read this topic

[sam_145]

Thanks for all the replies.

Greenie: I have read the link you gave. It gives some hope but honestly speaking I feel if I go down that route I might have to spend more money, time and resources. And my wife also wants to go India in a couple of months. So with the case in appeal that would not be possible too.

So we are ready to wait till next year and apply as dependent when she is 21. But I just want to know, if she wants to or feels like coming over to UK, can we apply for a tourist visa? We could explain our case in a covering letter and give reasons as to why we are not applying for dependent. And I would also let them know of our intention to apply for proper dependent visa when she turns 21. Do you think she will be granted a tourist visa?

[t1s2010]

**Not an expert on the discussion.

How about Extension of dependent visa before your ILR.. possible or not?

[sam_145]

No we can't. She already has been given maximum possible visa. It's valid till May 2011, same as my Tier(1) visa.

[sam_145]

Hi,

Any ideas on this experts? Waiting for your valuable comments

[Greenie]

the fact is your wife has already been granted leave as your dependent therefore you have very strong grounds for further leave on the basis of your marriage.

I think you have already beeng given the correct advice by myself and vinny to make an application for further leave to remain as the spouse of settled person and to appeal if refused.

[sam_145]

Hi All,

Could you please help with a few queries? This is our current immigration status.

Me: Naturalization granted. Will attend ceremony soon.
Wife: Indian passport (No UK visa)
Sons: Indian passport (No UK visa) (6 month old)

Just to make things clear, boys were born outside India when I was on ILR. I wish I had British citizenship then and they could have been registered straight away. But, that's not the case.

Wife was in the UK with me for around 14 months. She went for delivery and has been in India since then.

I am aware if I have to bring them over, I need to apply for dependent visa for family of British citizen. And according to new rules, they will be granted visa for 2.5 yrs. My questions are:

Can I apply for registration of my sons, as British citizens, once they have been here for lets say a year? I heard there is no time stay requirement for minors.

Or do I need to wait for 5 more years, when my wife will get ILR? Is there anything I can do to quicken the citizenship process for my sons?

[Jambo]

See Q1 & Q2 in Citizenship FAQs - Common Questions - Read before posting - Children.

[sam_145]

See Q1 & Q2 in Citizenship FAQs - Common Questions - Read before posting - Children.

Thanks for your reply. I did go through them posts before asking here. However, I am still not clear on one thing. I am not sure if the "no residential qualification" applies to children with both parents British citizens or for just one parent British citizen?

In our case, when my family is here, my wife will be on the first year of the new 5 year residential qualifying period and I will be British citizen. In such a scenario, what is the earliest I can apply for citizenship for my sons? Do I have to wait five years till my wife gets ILR or can I apply in the first year itself? Or after "x" years?

Thanks in advance.

[Jambo]

Although there are no residential requirements, application under 3(1) is at discretion and as you stated the HO would expect the other parent to hold ILR. You can apply earlier than that but it would be at discretion. follow the link in Q1 in the FAQ if you want to better understand the chances.

[sam_145]

Although there are no residential requirements, application under 3(1) is at discretion and as you stated the HO would expect the other parent to hold ILR. You can apply earlier than that but it would be at discretion. follow the link in Q1 in the FAQ if you want to better understand the chances.

Thanks for your reply. All this is so annoying. My wife had to go back in the first place because of a stupid rule. She was granted dependent visa on my Tier 1 and was with me for a year. When I got ILR, she couldn't apply for extension because they had a rule stating partners of settled persons need to be 21 years of age. And she was 20 years old. SO she had to go back then.

Now, when we are ready to move back, they have changed rule to 5yrs from the old 2yrs residential requirement. This is so frustrating and so expensive. Has destroyed our family life. Isn't this against human rights? Doesn't a family have a right to live together?

[sam_145]

Hi All,

Can someone guide me to the best route for the situation I am in.

I am a British citizen and a British passport holder.
Arrived in the UK on a work permit in 2006,
Switched to Tier 1 in 2008
Applied for ILR in 2011
Applied for naturalization and British passport in July 2012.
Applied for OCI in Sept 2012.

Spouse details.

Was in the UK from June 2010 to June 2011 on Tier 1 dependent.
Went back to India in June 2011 as she was not 21 and I had applied for my ILR. The new rule required spouses to be 21. Members on this forum had advised applying for
ILR dependent and appeal if it was refused but she just decided to go India for personal reasons.

We had a child born in India in March 2012. At this time, I was still on ILR. I was naturalized in July 2012. I understand from reading other posts and the FAQ that my child
is not entitled to British citizenship as I (Father) was on ILR and the child was born abroad (in India).
Since then I moved with a job in India around Jan 2013 and have been here since.
My wife and child are in India with me.

My question is, Can I apply for registration / british passport for my child as I was on ILR at the time child was born? I understand my situation is an exception case, as my wife could have been on ILR if not for the stupid 21 year age rule. In such case, child would have been born to both parents on ILR and hence be entitled to ILR/ILE, and registration when in the UK? Will the HO consider ours as an exceptional case and treat it differently? Or would I need to apply for settlement visas for both my wife and child and do the drill (2.5 yrs + 2.5 yrs = ILR + 1 yr = BC)

Also, in case I do need to apply for settlement visas for my wife and child, can I register my child and get him British Passport as soon as I am in the UK, or do I need to wait for the qualifying period just like my wife's? I heard from friends that Home Office are not so strict on residence qualifying times for children under 13, and hence I could apply for registration after a year or so of the child being in the UK. Is this true?

I thank all members in advance for the wonderful support and look forward to hearing what the best recourse for our family is. The new rules are such a pain, and it makes
straightforward family life , so expensive and difficult with all the paperwork involved. To me, it is a basic human right violation. However, it is what it is, and we have to
live by the rules.

Thanks,
Sam

[vinny]

Did you not know that the minimum age for spouses was lowered back to 18 on 28 November 2011?

[secret.simon]

Will the HO consider ours as an exceptional case and treat it differently?

I don't actually see any "exceptional" circumstances.

Also, the fact that as soon as she was eligible, your wife and child did not attempt to move to the UK, that you moved out of the UK soon after you yourself got citizenship and hence that your family is not really settled in the UK, all of these weaken any appeal to "exceptional" circumstances.

Your absence from the UK, in particular, for a period of about two and a half years is particularly damaging to your family's application, in my opinion.

The idea of ILR is that your family and you have settled in the UK, with "the center of your life" in the UK (I'm borrowing language from the EEA Regulations and the Surinder Singh route, but I think it expresses the idea pretty well). Nothing in your circumstance demonstrates that that has happened.

would I need to apply for settlement visas for both my wife and child and do the drill (2.5 yrs + 2.5 yrs = ILR + 1 yr = BC)

Yes.

can I register my child and get him British Passport as soon as I am in the UK, or do I need to wait for the qualifying period just like my wife's?

From the history above, there is no evidence of the child having any private or family life in the UK. There is no obvious reason for the Home Office to expedite the registration.
To the best of my knowledge, given your history (of being away from the UK for so long), the Home Office would expect the child to be in line with the mother.

[sam_145]

Thanks Simon, for addressing all my questions so thoroughly. And thank you vinny for pointing out revocation of the age rule.

Yes, I agree that they are not as such "exceptional" circumstances. Just that the age rule came in and completely messed our ILR/ Citizenship journey. Yes, we could have applied, got refused and appealed but that would have meant my wife could not travel to India and she needed to at that time.

Wish there was an easier route, as the settlement visa route is very expensive and time consuming.
Anyway, it is what it is, and I think we will have to just go through the 5 year settlement process for both kids and my wife.

[sam_145]

I had another question experts.

In case we decide not to go back and live in the UK, what are the options available to my kids in the future?
When they turn 16 or 18 or the adult age, would they be given a choice to choose their nationality? Or would this option not be available to them because they were born when I (Father) was still on ILR?

[vinny]

If they were born outside the UK prior to your grant of naturalisation, then this option is not available to them.

[secret.simon]

When Big Ben chimes midnight on the day of the child's 18th birthday, s/he loses any rights to registration based on your citizenship and will need to go through the whole journey on his/her own.

The last working day before your child's 18th birthday is the last day that they can apply for citizenship based on your UK citizenship. So, they would need to arrive in the UK the day before their 12th birthday at the latest to get citizenship based on your citizenship (assuming that the 2.5 years LR + 2.5 years FLR + 1 year ILR is followed and every decision is taken on the same day service by UKV&I and there are no appeals).

There is a story somewhere on these forums of a father in a similar situation, who applied at the 59th minute of the 11th hour (he applied at 11PM, an hour before his daughter turned 18). I believe that the Home Office declined to accept the application because by the time the payment was processed by the banks, the bewitching hour had passed and the daughter had turned 18.

Also, remember that the advice above is based on the rules as they are now. They can and do change frequently and they only change to make it more difficult. Your wife and children will be safeguarded against most changes to Immigration Rules as on the day of their application to come to the UK. So, the longer you hold on about applying for them to come to the UK, the more irrelevant your UK citizenship to them.