Spouse visa to ILR. Days outside uk

[suhu]

Hello all,

My wife joined me in the UK in Nov 2013. Her visa is due to expire in Feb 2019. She is eligible for ILR at that time.

She is now pregnant and wants to go back to India for delivery. If she is outside the UK for more than 6 months will it be a problem for ILR. How long can she stay outside the UK if she wants to go for ILR.

Option 2
Because of her absence if she is not eligible for ILR, can she apply for another extension?

Any advice on this is greatly appreciated.

Thanks

[debrancherenzym]

Hello all,

My wife joined me in the UK in Nov 2013. Her visa is due to expire in Feb 2019. She is eligible for ILR at that time.

She is now pregnant and wants to go back to India for delivery. If she is outside the UK for more than 6 months will it be a problem for ILR. How long can she stay outside the UK if she wants to go for ILR.

Option 2
Because of her absence if she is not eligible for ILR, can she apply for another extension?

Any advice on this is greatly appreciated.

Thanks

There is no limit on how many days you can stay outside the country, but it would be helpful if the reason is explained, which in your case will be easy

[suhu]

Thanks for your reply. Do you know where I can find that information in a official document?

I read about the 180 day rule which is contradicting. Any links to official document will be of great help.

Thanks

[suhu]

Hello,

I am a Citizen and my wife is spouse visa. If she leaves UK for more than 6 months will she have a problem for ILR.

Some people say there is no limit for spouse visa. A bit confused, if someone can clear this it will be of great help.

[vinny]

The changes outlined in this topic only affect certain PBS migrants and not partners/spouses.

[vinny]

See also the guidance relating to time spent outside the UK for spouses under Appendix FM.

[suhu]

Thanks Vinny.

I first came into the country with a tier 1 visa and then got my citizenship. So will it make my wife PBS dependant? If it does, will these criteria about 180 days apply for her.

Thanks

[suhu]

Thanks Vinny.

Appendex-fm gives this information.

What is worrying is "At least 60 months in the uk"

Section E-ILRP: Eligibility for indefinite leave to remain as a partner

(a) at least 60 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1.; or
(iii) a combination of (i) and (ii);

Is that something you can throw some light on.

Thanks

[vinny]

I’ve merged some of your posts with this thread.

Thanks Vinny.

I first came into the country with a tier 1 visa and then got my citizenship. So will it make my wife PBS dependant? If it does, will these criteria about 180 days apply for her.

Thanks

Did you apply for ILR under Tier 1?

Did you your wife initially apply as a PBS dependant?
Has she switched to FLR(M) or is she still a PBS dependant?
When does her leave expire?
When and for how long does she expect to be away?

[suhu]

Did you apply for ILR under Tier 1? - Yes

Did you your wife initially apply as a PBS dependant? - I was in ILR when she first got the visa
Has she switched to FLR(M) or is she still a PBS dependant? - When we went for second extension it was FLR(M)
When does her leave expire? - Feb 2019
When and for how long does she expect to be away? - From March 2018 to Jan 2019

[suhu]

Did you apply for ILR under Tier 1? - Yes

Did you your wife initially apply as a PBS dependant? - I was in ILR when she first got the visa
Has she switched to FLR(M) or is she still a PBS dependant? - When we went for second extension it was FLR(M)
When does her leave expire? - Feb 2019
When and for how long does she expect to be away? - From March 2018 to Jan 2019

[vinny]

Okay. Then she is under Appendix FM. I believe the Guidance permits absences within the 60 months. It doesn’t specify a maximum limit.

[marcnath]

Did you apply for ILR under Tier 1? - Yes

Did you your wife initially apply as a PBS dependant? - I was in ILR when she first got the visa
Has she switched to FLR(M) or is she still a PBS dependant? - When we went for second extension it was FLR(M)
When does her leave expire? - Feb 2019
When and for how long does she expect to be away? - From March 2018 to Jan 2019

Even if you had your ILR when you wife applied as a dependant, she could have applied for PBS dependant visa - so which visa category did she apply on initially ? PBS dependant or FLR (M)

If the first was PBS dependant and the extension was FLR (M), then the 5 year clock was reset on the extension. Which would mean she is not eligible currently for ILR but would have to have another 2.5 years as FLR (M).

So, it is important you clear on which visa she has been for the past 5 years

[suhu]

I just checked and she was initially on a FLR(M) as well. So in Feb 2019 she will be in FLR(M) for 5 years.

In that scenario how does the 180 day rule play. Will it affect her?

[marcnath]

I just checked and she was initially on a FLR(M) as well. So in Feb 2019 she will be in FLR(M) for 5 years.

In that scenario how does the 180 day rule play. Will it affect her?

It does not appear that the 180 day rule applies. Obviously, the rule can change before Feb 2019.

[suhu]

Thanks Vinny and Marcnath.

The information I got from the search is, the rules have changed in Nov 2016 and patners will need to spend 5 years in UK for ILR. If you are outside the UK for more than 180 days the 5 years gets reset.

Marcnath, when you say it doesn't apply, I am thinking it is an exception you are referring too.

Do you know where I can find that details. The FM guidance doesn't give any specific information.

[CR001]

Thanks Vinny and Marcnath.

The information I got from the search is, the rules have changed in Nov 2016 and patners will need to spend 5 years in UK for ILR. If you are outside the UK for more than 180 days the 5 years gets reset.

Marcnath, when you say it doesn't apply, I am thinking it is an exception you are referring too.

Do you know where I can find that details. The FM guidance doesn't give any specific information.

The 180 days rules only applies to PBS migrants and PBS dependents, i.e. Tier 1, Tier 2 etc and NOT to spouse settlement visas under Appendix FM which is a completely different set of rules.

The links have been provided to you already in this topic.

[marcnath]

Thanks Vinny and Marcnath.

The information I got from the search is, the rules have changed in Nov 2016 and patners will need to spend 5 years in UK for ILR. If you are outside the UK for more than 180 days the 5 years gets reset.

Marcnath, when you say it doesn't apply, I am thinking it is an exception you are referring too.

Do you know where I can find that details. The FM guidance doesn't give any specific information.

Appendix FM only refers to "continuous period".
There is no definition or guidance of "continuous period" that I can find for family members of citizens/settled persons. There is extensive guidance on "continuous period" for PBS dependants, which is where this absence period is specified.
Because in cases where absences are taken into account, it is specifically mentioned, my reading on this (and it appears to be the same as Vinny, CR001 and other moderators) is that absences do not impact the continuous period in cases where it is not mentioned.
If you are looking for specific wording to say absences are not taken into account, I doubt if you will find it (at least I have not been able to).

However, The SET (M) guidance states :

One of the requirements is that you have completed 24 months (under Part or 60 months (under Appendix FM) with leave to enter or remain as a partner or parent. That period runs from the date on which you entered the UK with a visa in the relevant category;

Which reinforces that period is related only to entry into the UK and does not exclude absence periods

[suhu]

Thanks Marcnath. You are absolutely spot on with my query. It is quite confusing between these 2 categories (Spouse of settled person and spouse of PBS migrant) and there is no clear documentation clarifying these.

Not many people are aware of this difference in category and confuse with the 180 day limit.

I am thinking of using a solicitor for this case just because of the lack of clarity in this matter. Will you be able to suggest a solicitor who will be familiar with these categories.

Thanks to all the moderators for clarifying my doubts. Really appreciate it.

[marcnath]

Thanks Marcnath. You are absolutely spot on with my query. It is quite confusing between these 2 categories (Spouse of settled person and spouse of PBS migrant) and there is no clear documentation clarifying these.

Not many people are aware of this difference in category and confuse with the 180 day limit.

I am thinking of using a solicitor for this case just because of the lack of clarity in this matter. Will you be able to suggest a solicitor who will be familiar with these categories.

Thanks to all the moderators for clarifying my doubts. Really appreciate it.

I do not know any solicitors as I have not used them.

Even if I did, this forum rules prevent me from providing any such details.

[CR001]

I am thinking of using a solicitor for this case just because of the lack of clarity in this matter. Will you be able to suggest a solicitor who will be familiar with these categories.

You don't need a solicitor. You will only end up a lot poorer for what is in effect just a form filling exercise. Solicitors very often get applications horribly wrong and it is the migrant who suffers.

There is no 'lack of clarity'. It is quite simple, there is NO absence limit for spouse settlement visa holders. Obviously they cannot live abroad for 5 years and then come back and apply for ILR for example, but visits home and maternity leave to go home is fine.

[suhu]

Thanks Marcnath and CR001.

I agree with you CR001. I have always done my application myself and never used a solicitor.

With the spouse visa I feel some of the points are not laid out crystal clear.
" there is NO absence limit for spouse settlement visa holders" - I agree but this is not mentioned anywhere in the guidance. The guidance says - Continuously in the UK for 60 months. Case worker can come back and argue I have broken the continuous period.

What continuous means no one knows for sure. It falls into the discretion of the case worker. In my experience not all case workers are knowledgeable and they make mistakes. But if they make a mistake they tend to stand by it. They very hardly acknowledge their mistake unless a new application is made.

In these circumstances I feel if you are represented by a solicitor the case worker takes your point a bit more seriously. Would like to hear your thoughts on this.

Thanks.

[CR001]

You are overthinking this.

There is no mention of 'no absence limit' as it is not relevant to this visa category. HO don't hold you hostage, you are free to travel on holidays etc.

Many have had successful ILR applications even with long holidays and maternity breaks.

A solicitor has no influence on your application at all. Makes absolutely no difference.