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Best Route Back to UK If Needed

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Marc0
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Best Route Back to UK If Needed

Post by Marc0 » Fri Dec 23, 2016 1:26 pm

Hi all,

My wife (Canadian) and I (British) and our two young children (both British and Canadian citizenship) are currently based in the UK.

Mainly to be closer to her family, my wife wants to move back to Canada. So we are going through that process and I have been accepted for PR there. Plan is to move late 2017.

She first came to UK on a student visa, changed to an ancestry visa, then to a 2.5yr FLR(M). We have just applied to extend her FLR(M) for another 2.5years as was due to expire.

My question is if things don't work out for whatever reason in Canada and we want to come back to the UK what is our best option for returning? We like the UK and both have reasonable employment here, but Canada has always been in our plans and now with kids we are keen to move to be closer to wife's family.

We have been reluctant to apply for ILR in the past as we always had in our mind that we would probably give Canada a go and didn't want to have this option revoked for misuse. Would FLR(M) be an option for us again? As I understand it I would need to return to UK on my own and find employment that meets the financial threshold to then apply for FLR(M) or have over £62,500 savings (i wish). However, I wasn't sure if you could get FLR(M) more that twice?

I would really appreciate it if people could chip in and advise what would be a suitable way of coming back if things don't work out.

Thanks

secret.simon
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Re: Best Route Back to UK If Needed

Post by secret.simon » Fri Dec 23, 2016 4:35 pm

The rules for spouses of British citizens are tightened all the time and it is very possible that that route will be much tougher when you plan to return.

Ancestry visa rules tend not to change so much, if at all. If your wife is eligible for that, I would say that that would be the best alternative. The best route of course is acquiring British citizenship itself.

If she applies for and is granted ILR (possibly under the Ancestry visa route), she can apply for British citizenship immediately on acquisition of ILR (as the spouse of a British citizen) and that would have been for life, with no more immigration hassles.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Marc0
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Re: Best Route Back to UK If Needed

Post by Marc0 » Sat Dec 24, 2016 2:36 pm

Thanks. My wife has already used her 5-year ancestry visa so I don't think that would be an option. Unfortunately, I don't see any other options that would allow us to return.

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Re: Best Route Back to UK If Needed

Post by CR001 » Sat Dec 24, 2016 2:48 pm

Marc0 wrote:Thanks. My wife has already used her 5-year ancestry visa so I don't think that would be an option. Unfortunately, I don't see any other options that would allow us to return.
There is no limit to the number of Ancestry visas you can apply for. She can apply for 5 over 25 years if she wishes to. It is not restricted to only one in a lifetime.
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Re: Best Route Back to UK If Needed

Post by secret.simon » Sat Dec 24, 2016 3:10 pm

Marc0 wrote:My wife has already used her 5-year ancestry visa so I don't think that would be an option.
Did she work during the period on Ancestry visa? Periods on maternity leave are counted as working to the best of my knowledge.
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Re: Best Route Back to UK If Needed

Post by Marc0 » Tue Dec 27, 2016 2:40 pm

Thanks very much for responses. We were not aware the ancestry visa could be used more than once. It is a relief that there isn't a limit! That seems like the way to go if we want to come back.

Re my wife working during her ancestry visa- yes, she worked on the visa with one period of maternity leave. I'm curious why you ask?

If taking up the ancestry visa again is it best to renew it close to the 5-year expiry (within 28 days) and apply for ILR once we have a solid 5 years residence in the UK? I'm thinking it may take us a couple of months once ancestry visa is granted to organise ourselves (flights, schools, accommodation) before moving back and so would not be confident that we would meet the 5-year residence for ILR with one ancestry visa.

Am I right in thinking that having now applied for our second FLR(M) that we cannot apply for any more in the future?

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Re: Best Route Back to UK If Needed

Post by secret.simon » Tue Dec 27, 2016 3:09 pm

As I understand it, if your wife has worked for the entirety of the five years while she was on her Ancestry visa, she can apply for ILR on that basis at any time while she is legally in the UK (other than on a visit visa to the best of my knowledge).
Immigration Rules part 5: working in the UK wrote:186.The requirements to be met by a person seeking leave to enter the United Kingdom on the grounds of his United Kingdom ancestry are that he:
(i) is a Commonwealth citizen; and
(ii) is aged 17 or over; and
(iii) is able to provide proof that one of his grandparents was born in the United Kingdom and Islands and that any such grandparent is the applicant’s blood grandparent or grandparent by reason of an adoption recognised by the laws of the United Kingdom relating to adoption; and
(iv) is able to work and intends to take or seek employment in the United Kingdom; and
(v) will be able to maintain and accommodate himself and any dependants adequately without recourse to public funds;

Indefinite leave to remain on the grounds of United Kingdom ancestry
192.Indefinite leave to remain may be granted, on application, to a Commonwealth citizen with a United Kingdom born grandparent provided the applicant:
(i)meets the requirements of paragraph 186 (i)-(v); and
(ii)has spent a continuous period of 5 years lawfully in the United Kingdom in this capacity; and
(iii)has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL;and
(iv)does not fall for refusal under the general grounds for refusal; and
(v)is not in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded; and
(vi)provides the specified documents in paragraph 192-SD to evidence the reason for the absences set out in paragraph 128A, where the absence was due to a serious or compelling reason.
So, on that basis, I would suggest that your wife apply for ILR based on the ancestry visa now, followed immediately by an application for citizenship when the ILR is approved. Then, by mid to end 2017, she will be a British citizen as well. And that status is for life.
Marc0 wrote:We have been reluctant to apply for ILR in the past as we always had in our mind that we would probably give Canada a go and didn't want to have this option revoked for misuse.
Future intentions is gauged by the Home Office by past conduct. Many people on these forums have left the UK on acquiring British citizenship, primarily to take care of their elderly parents (it is practically impossible for elderly parents to join their family in the UK under the current rules). And yet, we have not heard of revocation of citizenship on these grounds. Furthermore, while revocation of ILR is a purely domestic matter, revocation of nationality is governed to a limited extent by international law. So, it is much harder to revoke.

Also, if your wife has spent five years in the UK and has a British husband and family, I would say that she is sufficiently anchored in the UK even if she were to spend long periods in Canada. Thus a revocation of citizenship, as opposed to ILR, is considerably less likely.

I would suggest waiting for others to comment before taking further action, but I hope you can understand the reason for the questions.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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Re: Best Route Back to UK If Needed

Post by CR001 » Tue Dec 27, 2016 7:51 pm

secret.simon wrote:As I understand it, if your wife has worked for the entirety of the five years while she was on her Ancestry visa, she can apply for ILR on that basis at any time while she is legally in the UK (other than on a visit visa to the best of my knowledge).
This would not be applicable as she switched to FLR(M). If she had had close to 5 years on Ancestry visa, should have had to apply for ILR shortly before it expires or she reached 5 years in this category. Switching to FLR(M) reset the clock. The Ancestry visa could no only be used towards ILR LR and not for ILR on Set(O) as she does not hold a qualifying visa for that.
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Re: Best Route Back to UK If Needed

Post by Marc0 » Wed Dec 28, 2016 11:12 pm

secret.simon - absolutely understand the need for the questions. Really useful to get your input. Shame that we didn't apply for ILR at end of ancestry visa.

CR001 - thanks for clarifying that can no longer apply for ILR through ancestry as we are now on FLR M.

My wife has 7.5 yrs residence so 2.5yrs off the requirement for ILR LR. Staying for another 2.5+years doesn't fit with our timeline now that I have been approved for Permanent Residence in Canada. Need to move in a year or so if want to fulfil Canadian residence requirements.

So ancestry visa seems best (perhaps only) option for coming back. At least we have an option. Hopefully it is still available in a few years should we need it.

I know I previously asked, but I want to make sure I have explored all options. If we meet financial requirements for FLR M could we also use this route again having already used it twice? I note there is an option under section 2.3 (stage of extension of leave) of application "further period of leave following a previous grant of leave..." Is this for three or more FLR M applications?

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Re: Best Route Back to UK If Needed

Post by secret.simon » Thu Dec 29, 2016 7:57 am

CR001 wrote:This would not be applicable as she switched to FLR(M). If she had had close to 5 years on Ancestry visa, should have had to apply for ILR shortly before it expires or she reached 5 years in this category. Switching to FLR(M) reset the clock. The Ancestry visa could no only be used towards ILR LR and not for ILR on Set(O) as she does not hold a qualifying visa for that.
I will disagree with you on this specific point, CR001.

My reading of the Rules is that FLR(M) can not be aggregated with the time spent on any other visa, either PBS dependent or one in your own right.

But if the requirements for ILR via Ancestry visa (reproduced above) are already met before the FLR(M) application, I do not believe that an FLR(M) extinguishes the ability to apply for it at a later date.
Marc0 wrote:Need to move in a year or so if want to fulfil Canadian residence requirements.
I know what you mean. Canada was my backup option when I started my immigration journey. Unfortunately, my British and Canadian journeys started at the same time and I had to take a pick. So, here I am.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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Re: Best Route Back to UK If Needed

Post by CR001 » Thu Dec 29, 2016 9:00 am

secret.simon wrote:
CR001 wrote:This would not be applicable as she switched to FLR(M). If she had had close to 5 years on Ancestry visa, should have had to apply for ILR shortly before it expires or she reached 5 years in this category. Switching to FLR(M) reset the clock. The Ancestry visa could no only be used towards ILR LR and not for ILR on Set(O) as she does not hold a qualifying visa for that.
I will disagree with you on this specific point, CR001.

My reading of the Rules is that FLR(M) can not be aggregated with the time spent on any other visa, either PBS dependent or one in your own right.

But if the requirements for ILR via Ancestry visa (reproduced above) are already met before the FLR(M) application, I do not believe that an FLR(M) extinguishes the ability to apply for it at a later date.
I switched from Ancestry to FLR(M) and was told at PEO (back in the day) that I would lose the Ancestry option of ILR as once on FLR(M), I cannot apply for Set(O) Ancestry ILR as am on the Set(M) route. The same as when a PBS migrant/dep switches to FLR(M), they lose the ability to apply for ILR on Set(O) even if they had the qualifying period and made the error of switching to FLR(M). To apply on Set(O), the applicant has to hold a qualifying category visa at the time of ILR application.

As far as I am aware, the only ILR option that can be applied for with retrospective qualifying period is ILR LR.
Char (CR001 not Casa)
In life you cannot press the Backspace button!!
Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

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