Applying for IDR for my spouse - both been out of country (because of my job)

[junebug1981]

Hi all, really appreciate some sage advice.

I'm British (born), and work as a surgeon in the NHS.

I married an American citizen, and obtained 30 month leave to remain for her on 10th July 2015. This was renewed on 28th December 2017 for another 30 months, expires 11th July 2020. We aim and hope to apply for IDR in June /July2020.

As part of my surgical training, I was offered a prestigious international fellowship post for 6 months in (February to July 2018) Sydney and 12 months in Toronto (August 2018- July 2019). So I obviously left the UK with my wife on this fellowship. We now plan to return to the UK in August 2019, where I will find work back in the NHS. I have a home in the UK.

(of note, but probably irrelevant, we now also have a baby, born in Toronto but will have a British citizenship - so she will also be the mother of a British citizen)

Coming to the problem - when we apply for ILR, there is conflicting advice regarding time spent out of the country (and legibility for ILR). Obviously my wife has spent more then 180 days out of country but she was only joining me on my surgical training, not for her own work or reasons. It would have been crazy for her to stay in the UK whilst I move abroad for training.

We will return to the UK August 2019 - June 2020, prior to the ILR application, and I'll resume NHS activity.

Questuons:

1. Will she qualify for ILR in June 2020 or are we going to get rejected outright? What our are chances?

2. If she doesn't qualify for ILR, what are our options? Extend her leave to remain by another 30 months? Will we run into problems with that too?

(please assume all other ILR criteria are met)

Many thanks!

[zimba]

She will qualify for ILR. There is no absence limit for the people under family/partner visa route

[junebug1981]

Thank you Zimba, that's great, really appreciate the reply.

Two follow on questions:

On the set(M) application, section 9.13, it asks:

9.13 How long have you lived in the UK?

And then asks for details of periods away from the UK. I assume we will have to declare the dates she left with me to Australia / Canada but from your advice, it should be irrelevant to our application as a partner and they won't question this?

Lastly, regarding the next step, applying for citizenship, which we hope to go after indefinite leave to remain, is it true that she could only be absent for 270 days in a 3 year period (which disqualifies her) or 90 days in a 1year period (which she would qualify for) should we apply in 2020.

Thanks again so much for your assistance!

[CR001]

is it true that she could only be absent for 270 days in a 3 year period (which disqualifies her) or 90 days in a 1year period (which she would qualify for) should we apply in 2020.

Yes and based on the absence you have stated she won't qualify in 2020.

She must also meet the physically present requirement on the same date as she applies, at the start of the 3 year qualifying period for citizenship. This is mandatory and if not met, she will be refused and the fee lost.

[secret.simon]

Alternatively, of course, if she is willing to wait for a year after acquiring ILR, she could still qualify on the basis of five year years residence in the UK.

Of course, for that to work, she still needs to have been legally resident in the UK at the start of the five years period immediately preceding her date of application.

[junebug1981]

Thank you once again for the replies.

Is there any work around regarding the absence / exceptional leave rule, since she travelled with me on my career path, thereby helping to establish our life in the UK.

Secret.simon - if she waited a year (til 2021), would she still not qualify as she has spent more than 450 days outside the UK during those 5 years (2016-2021)

Thank you again everyone, it's really appreciated as its becoming an increasing source of anxiety!