Spouse visa 5 year route (Possible separation)

[adasztf]

Hi Everyone,

This is the first time I ever posted something on this board. This website and community has helped me throughout my UK visa journey. Once again, I need a support from the community member regarding my status in the UK.

I came to UK in 2011 on student visa, which then moved to PSW. I met my wife (British Citizen from birth) when I was on PSW and we tried to apply for extension under un-married partner but visa was refused because we were not living together for 2 years. I left UK voluntarily to go back to India. I was in India for 9 months and then came back to UK on Spouse visa in November 2015. We got married in court and then I’ve applied for spouse visa under 5 year route which has been granted and then I have received an extension for further 2.5 years which is due to expire in first week of March.

We have 19 months old daughter who is British from birth and second child is due on July. This year is been though due to Covid where everyone is working from home. Things are not looking good between us and my wife is threatening me that she will send me back and divorce me. This is quite heartbreaking because I’m supporting my family by bearing all expenses (mortgage, bills, cars, insurance) everything and I’ve been a good father.

As a husband and a father, I’m going to work hard to avoid this separation, however, I do need a advise if we do decide to separate, what are my options? Am I still able to apply for ILR? If not, what else I can do?

Furthermore, I’ve been offered a role in Kuwait and I was hoping to go there after I apply for British passport in April somewhere and then take family with next after a year. I am not stuck between family and career!

Please advise.

[CR001]

You could have applied for ilr within 28 days before reaching the 5th anniversary if the date you entered the UK on a spouse visa.

You need her support for an ilr application and prove subsisting relationship with two years eveidence if cohabitation and her passport etc.

You need to decide what is important for your circumstances based on UK status and work abroad.

You can't just "apply for a British passport'. You have to apply for naturalisation first, which can take a few months. Only once you are approved and have attended your citizenship ceremony, can you then apply for a British passport.

Citizenship could be refused for periods of overstay in the last 10 years.

[adasztf]

Thanks for the reply. Work abroad is secondary now because family is important. However, am I eligible to work abroad on ILR if required? I will be coming to UK quite often if I do move to Kuwait.

In terms for extension, if my wife decide not to support my ILR application then what are my options? She does want me to pay for everything.

Thanks in advance

[CULLINAN]

Thanks for the reply. Work abroad is secondary now because family is important. However, am I eligible to work abroad on ILR if required? I will be coming to UK quite often if I do move to Kuwait.

Note, you have Indefinite Leave to Remain which means you have no limits to work or live in the UK. You are a UK resident and made UK your permanent home. By law, ILR is only lapsed if you stay outside UK for more than 2 years. But, technically you have Indefinite Leave to Remain (not enter).

This is a misconception that having ILR can not be denied entry at the border. If your behaviour suggests that you are working abroad and not living in UK, your ILR could still be revoked by the immigration official at the border or denied entry.

I would suggest you reconsider your priorities before making an informed decision.

In terms for extension, if my wife decide not to support my ILR application then what are my options? She does want me to pay for everything.

Also, for your ILR, as @CR001 said, you need your wife’s support in your application as you have to prove that your relationship is subsisting. As long the relationship is subsisting on the date of application and your wife supports you i.e. provides her documents and signs the declaration for you, separation later on is not that damaging (as long she contacts HO and declares otherwise).

Separation is not divorce. Divorce proceedings can take many months or longer given the circumstances. If your ILR is approved before that, given as stated above, you could get away with it.

Having said that, I have personally seen cases where a relationship broke down after an immigration application was pending. The spouse notified HO about the relationship break down but still HO granted ILR to the partner. It is purely HO’s discretion if they grant a visa or not even after a relationship breaks down. Basically the spouse can only notify HO but can not do anything after that (given your relationship exists on the date of application and she supports you at least till the date of application and provides you with her documents and declaration).

[CULLINAN]

Also, if your relationship breaks down and no way out, you can switch to the parent route. This will reset your ILR clock though.

https://www.gov.uk/uk-family-visa/parent

[adasztf]

Thanks for the reply. Work abroad is secondary now because family is important. However, am I eligible to work abroad on ILR if required? I will be coming to UK quite often if I do move to Kuwait.

Note, you have Indefinite Leave to Remain which means you have no limits to work or live in the UK. You are a UK resident and made UK your permanent home. By law, ILR is only lapsed if you stay outside UK for more than 2 years. But, technically you have Indefinite Leave to Remain (not enter).

This is a misconception that having ILR can not be denied entry at the border. If your behaviour suggests that you are working abroad and not living in UK, your ILR could still be revoked by the immigration official at the border or denied entry.

I would suggest you reconsider your priorities before making an informed decision.

In terms for extension, if my wife decide not to support my ILR application then what are my options? She does want me to pay for everything.

Also, for your ILR, as @CR001 said, you need your wife’s support in your application as you have to prove that your relationship is subsisting. As long the relationship is subsisting on the date of application and your wife supports you i.e. provides her documents and signs the declaration for you, separation later on is not that damaging (as long she contacts HO and declares otherwise).

Separation is not divorce. Divorce proceedings can take many months or longer given the circumstances. If your ILR is approved before that, given as stated above, you could get away with it.

Having said that, I have personally seen cases where a relationship broke down after an immigration application was pending. The spouse notified HO about the relationship break down but still HO granted ILR to the partner. It is purely HO’s discretion if they grant a visa or not even after a relationship breaks down. Basically the spouse can only notify HO but can not do anything after that (given your relationship exists on the date of application and she supports you at least till the date of application and provides you with her documents and declaration).

I agree on your point about ILR where there is a possibility to get entry clearance denied. I’ve made clear to my new employer that they need to wait until I get my British passport which can take some time. They are happy to wait because Kuwait embassy is also not giving visas right now. Can I start the process of British passport straight after getting ILR? If I calculate 28 days from expiry then I can apply for ILR on first week of February 2021. I have been given spouse visa on 12.02.2016 which means my 5 years are going to complete on 13.02.2021. Is that sound about right?

Regarding separation or divorce, I don’t want to go to this route. However, it seems like I have a parent route as an alternative. Am I eligible for the parent route? If yes, what do I need to show to qualify?

[CULLINAN]

If all things are okay and your wife supports you and your get ILR, you can apply AN on basis of marriage to a British Citizen (but again you need her British Passport copy and marriage certificate for this). Otherwise, you have to wait 1 year on ILR and meet other AN requirements to qualify for AN in your own right.

Parent route will reset your ILR clock so for now best to focus on your marriage.

You can apply ILR on SET(M) when you complete 60 months minus 28 days from first visa entry in UK.

See guidance for parent route though:

https://assets.publishing.service.gov.u ... v11ext.pdf

[seagul]

However, it seems like I have a parent route as an alternative. Am I eligible for the parent route? If yes, what do I need to show to qualify?

You can check about it here:

https://www.google.com/url?sa=t&source= ... U7RWhiG0Hp

https://www.gov.uk/uk-family-visa/parent

[CULLINAN]

Do not go for parent route. It will reset your ILR clock. That should be the LAST resort. The same guidance has already been posted which the previous user repeated.