While there do seem to be compelling and compassionate circumstances in your wife's case, be aware that the
Long Residence ILR guidance for caseworkers states that in such cases, the appropriate outcome (of exercising ILR) is (further) Leave Outside The Rules, not ILR.
Page 11 of the guidance linked to above wrote:If the applicant has been absent from the UK for more than 6 months in one period or more than 18 months in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.
This must be decided at senior executive officer (SEO) level with a grant of leave outside the Immigration Rules being the appropriate outcome.
Things to consider when assessing if the absence was compelling or compassionate are:
• for all cases – you must consider whether the individual returned to the UK within a reasonable time once they were able to do so
• for the single absence of over 180 days:
o you must consider how much of the absence was due to compelling circumstances and whether the applicant returned to the UK as soon as they
were able to do so
o you must also consider the reasons for the absence
• for overall absences of 540 days in the 10 year period:
o you must consider whether the long absence (or absences) that pushed the applicant over the limit happened towards the start or end of the 10 year
residence period, and how soon they will be able to meet that requirement
o if the absences were towards the start of that period, the person may be able to meet the requirements in the near future, and so could be expected to apply when they meet the requirements
o however, if the absences were recent, the person will not qualify for a long time, and so you must consider whether there are particularly compelling
circumstances
All of these factors must be considered together when determining whether it is reasonable to exercise discretion.
The children's immigration status will be that of the wife in this case, and will likely follow her's. In any case, the children will be eligible for ILR with the wife.
munisekhartelagam wrote: ↑Mon Dec 28, 2020 11:43 am
3. If i apply for spouse visa for my wife, i heard she NO need to wait for 5 years, i heard its 2 years if she stays on spouse she can get ILR.
That used to be the case before 2012. So, people who started on a spouse of an ILR holder visa before 2012 would have got ILR in 2014. But for anybody applying for that visa after 2012, they require a further five years of residence in that category (i.e. previous residence under other categories do not count) before applying for ILR.
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.
