Cancellation of ILR

[smiles345]

Dear forum

My sister lived in UK and was holding ILR, her husband and two children hold BC.Due to some family circumstances she had to come to india and lived more than 2 years which led to cancellation of ILR

she then applied for a ''returning of resident '' visa and but refused on the grounds mentioned below-:

Would greatly appreciated, if the forum members can kindly guide as to what category [solutions pls]she can apply - her husband owns property in UK and can demonstrates sufficient funds

I have considered your circumstances but I am not satisfied that you are a person who, although having been away from the UK for longer than 2 years, may be admitted under paragraph 19; your circumstances are lifestyle choices, I have therefore refused your application because I am not satisfied, on the balance of probabilities, that you meet all of the requirements of the relevant Paragraph of the United Kingdom Immigration Rules.I have considered whether your application raises or contains any exceptional circumstances which, consistent with the right to respect for family life contained in Article 8 of the European Convention on Human Rights, might warrant consideration by the Secretary of State of a grant of entry clearance to come to the United Kingdom outside the requirements of the Immigration Rules.
In the case of Gulshan [20131 UKUT 640 (IAC) it was determined that it is necessary to consider whether there are compelling circumstances not sufficiently recognised by the Rules. I am mindful that I should consider the seriousness of any difficulties which you may face in continuing your family life outside the United Kingdom, and whether they entail something that could not (or could not be expected to) be overcome, even with a degree of hardship for one or more of the individuals concerned.
I acknowledge that you have two children, who at the date of this letter are 11 months old, and 9 years old. I find it was yours and your spouse's choice for you to return to India with your eldest child, and it continues to be your spouse's choice to remain resident in the UK. I acknowledge that your youngest child has the entitlement to the Right of Abode in the UK, and she also holds an Indian passport so she may reside in India. I am satisfied that your spouse could also reside in India, but by your own admission, chooses to not reside with his family because of his own business interests. Whilst I am aware that you and your spouse have not lived in the same country for over five and a half years, I do accept some level of family life, given that you have two children together. I am satisfied that you may continue to maintain this family life with your spouse through family visits and by modern means of communication which you have deemed sufficient up till now. I find that there are no compelling circumstances or insurmountable obstacles to family life continuing overseas — there is no reason why your spouse cannot return to India. It has been decided that your application does not fall for a grant of entry clearance outside the Rules.
Your application for entry clearance to come to the United Kingdom is therefore refused.

Many Thanks in advance

[CR001]

Start the immigration journey again meeting all the requirements for a spouse visa. Spouse in the uk must meet the financial requirement and adequate accommodation.

[secret.simon]

you and your spouse have not lived in the same country for over five and a half years

I suspect that the above may have played a significant role in the decision.

[smiles345]

Many thanks CR001 and secret.simon for the kind replies. sister and her husband never been apart more than an year,
its been over few years now the husband joined her in india as he work for UK based IT company remotely as well as a tax resident in UK. Does it have an impact on the spouse visa he applies? i mean , Can she apply for spouse dependent eventhough her husband [Brtitsh citizen] also lives with her ?

valuable suggestions are greatly appreciated.

[CR001]

To qualify for a spouse visa, the British citizen must either be living and working in the UK (ie settled) OR they must be planning to return to the UK.

A spouse visa is only possible if the sponsoring spouse is also living and working in the UK.

She cannot get a spouse visa and simply come back on her own and her husband remains abroad.

[smiles345]

Many thanks CR001 for the reply. she goes only with husband and they live together in india at the moment. would it be necessary to have the husband's presence in UK while lodging the application? of course the husband can produce all the necessary paper work includes UK company payslips her work for and bank statements and his house title deeds etc.

does he require to be in UK [physically] while she lodge a spouse visa application here in india

Thanks

[smiles345]

Would appreciate your valuable input with regards to this.Thanks