please help i am lost

[tooley]

Hi there, i hope someone can help. I am bulgarian with ILR in the UK, i recently married and my husband is from Belarus. Now, the matter is a bit complicated He has been married before to a bulgarian girl and had FLR as her dependant. His FLR expires in january 2008. I would like to find out what application form we need to use, so i can attach him to my visa as a married partner, and if he still needs 2 years probation period, if he has been previously married and had 3 years FLR or we can automaticly apply for ILR as my dependent. Please help

[Mr Rusty]

Here's the relevant bit of the Rules:
287. (a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:

(i)(a) the applicant was admitted to the United Kingdom or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom;

; and

(ii) the applicant is still the spouse or civil partner of the person he or she was admitted or granted an extension of stay to join and the marriage is subsisting; and

So the words in bold give you the answer about applying for ILR.

I can't see anything that precludes another application for FLR as your spouse, although a caseworker might be minded to enquire into the circumstances of a second marriage so soon after the obvious failure of the first, and whether the parties genuinely intend to live together.

[tooley]

Dear Mr Rusty,
Thanks a lot fro your reply,

The problem is that he has been issued FLR as a spouse of his previous wife, as he is already divorced, but still in the UK and already married to me. Do you think that there are any complication from the fact that as he is divorced he is technically no longer entitled to his FLR from his previous wife? My question is if we can apply for his new visa as my spuse from here or he needs to go back home to apply for it?
Thanks so much

[Mr Rusty]

Para 284 says only that the applicant has to have been given Leave to Enter or Remain (for more than 6 months) in accordance with the Rules, and be the spouse or civil partner of someone settled here. (Plus all the other stuff about support and accommodation, etc.)

It also says that the applicant should not have remained in breach of immigration law, but although someone's marriage has broken down, their leave to remain is valid until it expires, unless it is revoked by the Home Office, or possibly cancelled at a port of entry if an Immigration Officer discovers that the person is not returning to live with his/her spouse, or an allegation is proved that the original leave was gained by deception leading to service of papers on the person as an illegal entrant.

If none of these has happened to your bloke, I don't see why an application can't be made in this country.

[VictoriaS]

Unfotunately, once the decree absolute was issued, he should have left the UK.

Victoria

[Docterror]

tooley, by posting twice, you have effectively gotten 2 simulateous thread running which is against the policy of the Broad.

[Mr Rusty]

Unfotunately, once the decree absolute was issued, he should have left the UK.

Victoria

So, if I was an Immigration Officer who encountered this man, say, at his place of work, under what Paragraph of the 1971 Act (as amended) would I be able to arrest and serve papers on him? Is he an illegal entrant? Not unless I could prove that he never intended to stay with his first wife, and the onus of proof is on me. Is he an overstayer? Nah, he's got current leave.

There is no breach of the law. Arguably he has contravened the spirit of the law by remaining, and this may well, in fact should, focus attention on the bona fides of a second application, but it doesn't stop him applying - for FLR, not ILR

[paulp]

There is no breach of the law. Arguably he has contravened the spirit of the law by remaining, and this may well, in fact should, focus attention on the bona fides of a second application, but it doesn't stop him applying - for FLR, not ILR

There is a requirement to notify the home office of any changes in circumstances that may affect the visa status.

[Mr Rusty]

There is no breach of the law. Arguably he has contravened the spirit of the law by remaining, and this may well, in fact should, focus attention on the bona fides of a second application, but it doesn't stop him applying - for FLR, not ILR

There is a requirement to notify the home office of any changes in circumstances that may affect the visa status.

I'd be grateful to see where it actually says that

[sakura]

tooley, John has already explained to you what you need to do.

However - one thing is not clear - when did they divorce? How long ago was this? When did you marry? If there is a significant gap between these dates, you might find it hard to apply for FLR/spouse visa for him in-country.

He certainly cannot apply for ILR, anyway.

[paulp]

I'd be grateful to see where it actually says that

It's one of those things that we've read at one point or another from home office correspondence but is difficult to find afterwards.

http://www.ind.homeoffice.gov.uk/contac ... onenquries

"14. My circumstances have changed. Can I vary the terms of leave?

If the basis on which you were granted leave to enter or remain in the UK no longer applies, you should write to the Home Office as soon as possible, quoting your full name, date of birth, nationality, the RD or SD number that accompanied the original application, the date that application was posted and your Home Office reference.

Home Office
Border and Immigration Agency
Lunar House
40 Wellesley Road,
Croydon
CR9 2BY.

If you fail to tell us of a change that may affect your immigration status, you may be committing an offence and could be removed from the UK."

[Mr Rusty]

Thanks for that.
So, they'd like you to tell them if your conditions change, but there's no actual offence committed if you don't. Someone whose marriage fails and doesn't leave the UK is no more "in breach of immigration law" than a student who stops attending their course, which the courts have said is not an offence.

The OP asked whether her husband could apply for ILR (no, he can't) or whether he could apply for FLR instead of leaving and seeking Entry Clearance to return. I still say there is nothing that disbars him from applying here, although I would advise doing it not long before his leave expires.
I can't offer any opinion as to whether an application would be successful - but the criteria for the decision should be the same whether he applies in Croydon or in Minsk.

Sorry if I'm perpetuating a duplicate thread, I didn't see the other one.

[paulp]

Thanks for that.
So, they'd like you to tell them if your conditions change, but there's no actual offence committed if you don't. Someone whose marriage fails and doesn't leave the UK is no more "in breach of immigration law" than a student who stops attending their course, which the courts have said is not an offence.

Mr Rusty, have you read the quote from the home office website? I'm not sure I would equate the phrase "you should write to the home office as soon as possible" with "they'd like you to tell them", nor "you may be committing an offence" with "there's no actual offence committed".

[vin123]

Folks,

These are definitions from information commissioners dictionary. Not sure whether Home Office website contents have undergone the audit or scrutiny relevant to this discussion...

Must

Where the word 'must' is used, we mean that there is a specific legal or regulatory requirement affecting concerned parties. ....................................

Should

We the word 'should' is used, we regard that as minimum good practice, but for which there is no specific legal requirement. Parties should make effort to follow the good practice guidance unless there’s a good reason not to. ...............

[VictoriaS]

Where have the courts said that someone on a student visa who stops attending their course but remains in the UK on their student visa is not acting in breach of their visa?

Victoria

[Docterror]

paulp, even if the HO insists that they should be notified, is there anything in the Rules that compels the people in breach of a visa issuing condition to do so?

[vin123]

well said ! a point there for the whole immigrant student community's welfare.

Where have the courts said that someone on a student visa who stops attending their course but remains in the UK on their student visa is not acting in breach of their visa?

Victoria

[vinny]

Where have the courts said that someone on a student visa who stops attending their course but remains in the UK on their student visa is not acting in breach of their visa?

Victoria

See also ZHOU and Detention and Removals - Chapters 46-60 > Chapter 50 - Persons liable to administrative removal under section 10 (The Zhou Judgement).

[VictoriaS]

So they may not be liable for administrative removal but they are certainly likely to get their leave curtailed and will have difficulties returning. So, as good as a breach and removal then?

Victoria

[tooley]

tooley, John has already explained to you what you need to do.

However - one thing is not clear - when did they divorce? How long ago was this? When did you marry? If there is a significant gap between these dates, you might find it hard to apply for FLR/spouse visa for him in-country.

He certainly cannot apply for ILR, anyway.

Hi Sakura,
Thanks for that, it is getting more and more comlicated. They got divorsed last year and we married in August this year. I have been told that it will be easier to apply under EEA rules instead of UK rules, and this can be done from here. Do you think that this will be easier? We freeaked out now, as the home office was informed for the divorce but we never heard anything from them. We have been told that if he applies as my spause under EU rules (i am EU citizen) it will be easier....

[VictoriaS]

I don't think you'd lose anything by trying.

Victoria

[Decus et Tutamen]

I've been lurking for a while, but the discussion in this thread has quite interested me, and I have a view on this quote from Victoria:-

So they may not be liable for administrative removal but they are certainly likely to get their leave curtailed and will have difficulties returning. So, as good as a breach and removal then?

Under section 82(2)(e) of the 2002 Act, the decision by the BIA to curtail leave constitutes an immigration decision, and generates a right of appeal. Furthermore, section 92(2) makes it clear that this right of appeal can be exercised in-country. Consequently, in relation to students who are not attending classes, it is quite likely that the BIA are reluctant to curtail leave when the ensuing appeal process could well effectively give the individual longer in the U.K. than was allowed by the curtailed leave.