Need confirmation on public funds rule, please

[zaphod]

Hi, first off a big thank you to all the members on the forum who have posted information. I think I've got it right, but I'm a little paranoid when it comes to certain sectors of our lovely government, so I wanted to be absolutely sure.

I am a British national, I claim Income Support (due to severe disability causing - hopefully temporary - incapacity to work), DLA (high rate mobility, middle rate care), housing benefit (already at the maximum level allowed by my council) and council tax benefit. I have no children and no other defendants.

My fiancee is Canadian, and we'd like to get her living here in the UK permanently and get married as soon as possible. She is a Psychology student (she'll be continuing her studies with Open University) and does not work, but has some financial support from her family.

If I'm reading the information linked from this forum, and the IS rules, correctly I can continue to claim IS until I am well enough to start work again and it won't prevent my fiancee from getting a visa and, after we're married, Leave to Remain. My Income Support payment should unchanged, or possibly go down a little.

Is my interpretation of the law correct?

[John]

Yes, I think so, but the biggest problem is going to be passing the financial test, given that third-party support cannot be taken into account.

Where is she now? Already in the UK? If so, on what basis? Type of visa? When that expires? And assuming it was legally possible, any reason why she could not work?

[zaphod]

Thanks John. We've worked out a budget that proves we can live on my benefits income alone (we're cheap )

She's in the UK on a visitor visa (valid until the end of December), so we're planning to go to Canada to apply for a fiancee visa before the end of the year. Since she's here on a visitor visa she can't work, but will start selling hand-knitted craft products as soon as its legal (she can't do 'normal' type office or shop work because she's disabled too).

[John]

we're planning to go to Canada to apply for a fiancée visa before the end of the year

If indeed you are both planning to go to Canada, why not slightly revise that plan, and get married in Canada, and after that marriage she can apply for a spouse visa (instead of a fiancée one)? Once granted that would mean that she can work immediately she gets back to the UK on that spouse visa.

Not only that, going down that route, it cuts out one visa application, that is, it cuts out the need to convert the fiancée visa into a spouse visa in the UK.

[zaphod]

Nice idea, John, we hadn't considered that!

Am I right in thinking (I've done some more reading) that we could also apply for a COA and then she could apply for FLR(M) while in-country after the wedding?

[Wanderer]

Nice idea, John, we hadn't considered that!

Am I right in thinking (I've done some more reading) that we could also apply for a COA and then she could apply for FLR(M) while in-country after the wedding?

No - CoA only allows the marriage (and pays for Gordo's Office Party at Number 10 this Xmas) - ur then wife will still need to return to Canada and apply for a spouse visa (for the Hogmanay Party)

[John]

Am I right in thinking (I've done some more reading) that we could also apply for a COA and then she could apply for FLR(M) while in-country after the wedding?

She is in the UK on a visitor visa, and whilst she cannot be prevented from applying for a CoA, and indeed it might be granted, allowing the marriage to proceed in the UK, she would then need to return to Canada to make the application for the spouse visa.

An application in the UK on form FLR(M) would be "outside the rules", that is, in particular, it breaches the "no switching" rule that stops holders of visitor visas switching to a spouse visa in the UK. OK, she cannot be stopped from submitting the FLR(M) but as an "outside the rules" application it will take a very long time to be dealt with, quite possibly years rather than months, and even then no guarantee of success. And all the time they are looking at the application your wife, as she would be, would not be permitted to work.

In other words, the real cost of going the UK route .... CoA .... FLR(M) ... and lack of work during the long time they take to deal with that application .... could be very considerably more than, for example, you both going to Canada and getting married there, and then making a spouse visa application there in Canada.

[zaphod]

Oh OK, thanks for clearing that up. Tis a shame, but c'est la vie. Onward to Canada!