Spouse settlement visa to ILR

[User]

Hi All,

I am now a British citizen and my wife is here on a settlement visa (marraige visa).
She is pregnant now - 13 weeks
She has been here in the UK since this April 2005 and her settlement visa is untill April 2007.

I have to go the USA for about 3-4 months on business visit ( i have been doing small visits so far, but this time it will be for 3-4 months) and i cannot leave my wife for that long without anybody taking care of her - since she is growing very pregnant day by day!

We have decided that I will take her to India and leave her with our parents so she can be taken care of. Our GP's advise is also this that we decide soon whether she will want to fly to India soon, since she cannot board any flights after around 30 weeks - around February time. I will be flying to USA around end of January next year.

Considering all this, we have taken a decision that it is better for her to be in India and take care of her remaining pregnancy in India.

Once she has delivered, i will want her to come to UK - around September 2006.

My questions are these:

1. If she flies to India around January 1st week and then returns to the UK around September 2006, will she be able to get her ILR in April 2007.

She would have been outside the UK - only to take care of her delivery, for about 9 months time. I will be able to substantiate this when applying for her ILR.

2. If in the worst case that she is not given an ILR (because of her 9 months absence) would she be at least given a FLR to continue her stay in UK as my wife?

3. When she arrives after 9 months in the UK, what sort of questions she is likely to face with the immigration officer? Would they ask her why she decided to have her delivery in India and not UK. Of course, i will be accompanying her and our child when they enter the UK around september 2006 though.

Any opinions appreciated.

Ta!

regards.

[User]

All - We are also discussing with our parents to see if they can manage to come over here around delivery time and the time when I am touring around... so its quite possible that they could be here and consequently we will end up having her delivery here in the UK.

Just wanted to know what you guys think about my questions earlier, so it will be useful, just in case...

We are actually excited to have our delivery here in the UK

Ta!

regards.

[lemess]

All I can say is that having a child in the UK may be slightly less stressful for your wife and make the process of getting a UK passport for your child a tad less bureaucratic. The standard of post delivery care and the attention you get in the months after birth in the UK is also quite impressive ( regular health visitor visits etc).

[JAJ]

All I can say is that having a child in the UK may be slightly less stressful for your wife and make the process of getting a UK passport for your child a tad less bureaucratic.

It also means the child will be a British citizen 'otherwise than by descent' rather than British 'by descent'. Or may not automatically British (and requiring registration) if the original poster is British 'by descent' himself.

He doesn't say how he got British citizenship so it's not possible to be specific.

[User]

Hi,

I got my british citizenship by naturalisation recenlty.

I am sure my child will get british citizenship even if he/she is born in India. My question is about my wife's ILR, in case she spends about 9 months in India and comes back to UK and applies for ILR in 2007 when her spouse visa / settlement visa expires?

Or would she at least get an FLR, in case ILR cannot be obtained because of her absence for 9 months (being in India that time during pregnancy!).

Ta!

regards.

[JAJ]

Hi,

I got my british citizenship by naturalisation recenlty.

I am sure my child will get british citizenship even if he/she is born in India.

That's correct but the point I'm making is that your child, if born in India, would be British 'by descent'. Which means that its own children in future, if also born outside the UK, will not automatically be entitled to British citizenship.

In other words, having the child born in India, may impact the nationality status of your grandchildren.

If you do have the child born in India, you can get a British consular birth certificate for it from the High Commission. This is highly recommended in terms of proving the child's British status, however child will still be British "by descent".

The other point to consider is that if there are any medical problems with the birth of the child, I would hazard a guess that neonatal care for any serious problems is going to be a lot better in a British hospital compared to what's available in India.

[User]

Thanks for those points.

But main question in this thread is all about these:

My questions are these:

1. If she flies to India around January 1st week and then returns to the UK around September 2006, will she be able to get her ILR in April 2007.

She would have been outside the UK - only to take care of her delivery, for about 9 months time. I will be able to substantiate this when applying for her ILR.

2. If in the worst case that she is not given an ILR (because of her 9 months absence) would she be at least given a FLR to continue her stay in UK as my wife?

3. When she arrives after 9 months in the UK, what sort of questions she is likely to face with the immigration officer? Would they ask her why she decided to have her delivery in India and not UK. Of course, i will be accompanying her and our child when they enter the UK around september 2006 though.

Any opinions appreciated.

Ta!

regards.

[lemess]

Thanks for those points.

When she arrives after 9 months in the UK, what sort of questions she is likely to face with the immigration officer? Would they ask her why she decided to have her delivery in India and not UK. Of course, i will be accompanying her and our child when they enter the UK around september 2006 though.

I can only comment on this but I don't see how or why it would have anything to do with the immigration officer admitting her back into the country. Where someone chooses to give birth is none of their business ! it's a free country after all and unless some immigration rules are being violated, you don't owe anyone an explanation for having your child born wherever you wish !

As for your other points, as a wife of a British Citizen she has a right to live in the UK anyway so getting leave to remain will never be an issue.
As far as ILR goes, I'm not too sure but I guess it would help if you were able to show correspondence in your name and hers at the same address, bank account statements etc to prove that her absence from the UK was temporary in nature and she is still continuing to live as yoru spouse. In other cases, there may be issues about convincing an overzealous home office minion that your marriage is not one of convenience if you are living apart for an extended period like 9 months and the best way I think is to have documentation that allows you to show that the marriage exists and the partners are living together.
if I were you I'd find a way to have the child born in the UK - certainly a 9 month absence from the country ( and more importantly a 9 month period of separation from the spouse) may cause problems should you run into a particularly difficult home office caseworker - you may want to assess if it's worth taking the chance. Once again, i don't think the issue will be so much 9 months out of the country but a 9 month separation from the spouse which may raise questions about the validity of the marriage etc.

bear in mind I am not an expert on immigration law or anything but have just dealt enough with the IND, home office and other bureaucracies to have a view on the matter.

[User]

Cheers. Thanks for all those answers.

Frankly, I think a potential ILR cannot determine our decisions to whether have the baby here in the UK or elsewhere - its a personal decision and i would not let anybody come into that, so i am least interested in the ILR for my wife - if they think that the marriage is for convenience, especially when we are married for more than a year, and having a new born child. Inspite of this if the Home office thinks that our marriage is for conveninece i would not really care about them. I will simply request for an FLR for her to live with me once she arrives here in teh UK after 9 months. If they even deny that too, the I would simply immigrate with her to India and live there, simply putting the blame on the HO that they did not allow us to live together in the UK and hence i had to leave UK.

But having said that all, I am sure she will get an FLR at least, if not an ILR - because of this 9 months absence from UK.

Anyway, we have got all the bills and other stuff in our common names here - utility bills, rental agreement, insurance documents, GP regsitration, etc. etc. and these are going to continue to exist for ever. This temporary period of styaing in india is our personal choice and its got nothing to do with our marriage - its all about her pregnancy.

I will produce as much documentation as possible to prove our marraige continuance, but if still the HO would not be happy as you sayu, then i guess that's the best i can do anyway, you see. I will then request for an FLR, because we are spouses, irrespective of what hte HO may think.

They cannot break our marriage by asking my wife to leave the country just because we were not together for 9 months.

Ta!

regards.

[JAJ]

Cheers. Thanks for all those answers.

Frankly, I think a potential ILR cannot determine our decisions to whether have the baby here in the UK or elsewhere - its a personal decision and i would not let anybody come into that, so i am least interested in the ILR for my wife - if they think that the marriage is for convenience, especially when we are married for more than a year, and having a new born child. Inspite of this if the Home office thinks that our marriage is for conveninece i would not really care about them. I will simply request for an FLR for her to live with me once she arrives here in teh UK after 9 months.

A complex question like yours really needs the advice of a good immigration solicitor, as opposed to an online forum.

[User]

It really makes me laugh to realise that my wife leaving for a few months to India to deliver a baby (which is our combined personal descion) looks like a complex immigration issue .

Anyway... thanks for all the answers

Ta!

regards.

[lemess]

It is only complex because your wife ( currently a foreign citizen) is applying for a certain status in the UK on the basis of marriage to you. You should expect scrutiny of that application if for 9 months ( not a short time ) before you two have not been co-habitting. The onus is on you to show such inquiries as unjustified. Bear in mind that it is unusual for a couple expecting a child to be living apart for extended periods so that's why I said it might attract scrutiny - I suspect you had some concerens about it too otherwise you wouldn't have posted it on the forum.
As I said part of the work of the IND is to keep an eye out for abuse of the marriage route to settlement and this has a history especially in the subcontinent. For this reason, you should just be prepared for scrutiny.

I sense you are already taking umbrage at the IND based on some hypothetical scenarios. All that is being suggested is that you be aware of these issues. And finally I agree - it is best to rely on qualified immigration lawyers for this type of advice.

[User]

"I sense you are already taking umbrage at the IND based on some hypothetical scenarios"

No. That was an hypothetical answer for an hypothetical scenario.

But, I agree with the IND stand-point. But i have to see what i can do to do away with upcoming business travel for 3-4 months. That is main reason for all this consideration of having the delivery in India.

I have to think about brining our parents here to take care of her when I am away on my trip.

Lets see how it works out!

Ta!

regards.

[John]

User, I am sensing (rightly or wrongly) you are not liking the comments you are getting in this topic. So be it but there is actually some good advice for you here.

Let's sum up ... will your child be British .. wherever the child is born? Answer YES! However JAJ makes a good point ... if the child is born in the UK then their children will be British wherever those children are born in the world. However if your child is born outside the UK then their children will only be British if their children are born in the UK.

Accordingly, like it or not, and no one on this Board designed these rules, the worth of their British Citizenship is more if your child is born in the UK.

The 9 months outside the UK? At the end of it your wife will be allowed back in ... to resume residence in the UK. That will not be a problem. However she has a settlement visa and is expected to settle in the UK and accordingly a 9-month absence might well have an impact upon her getting ILR, or rather, it might delay her getting ILR. That is, they might give her another 2-year spouse visa, and hopefully at the end of that she would get ILR.

Not saying there will be a problem ... but would not be surprised if there was one.

We are also discussing with our parents to see if they can manage to come over here around delivery time

Now that does sound like a plan to pursue!!!!!

[User]

Yep, i agree - some answers were not really what i was expecting to hear - Ha Ha! :-)

Anyway, my point is this travel for 3-4 months and i will have to either arrange for our parents to be here at that time or i will have to see what i can do to completely stop my travel plans - i will need to discuss with my customer

Hmm - yeah sounds like having our parents here will be a good way to go further.

Ta!

regards.

[Kayalami]

my 0.02p

1. If she flies to India around January 1st week and then returns to the UK around September 2006, will she be able to get her ILR in April 2007.

She would have been outside the UK - only to take care of her delivery, for about 9 months time. I will be able to substantiate this when applying for her ILR.

There is no requirement that the entire two year probation period be spent in the UK. However the HO at ILR stage do consider if the couple have been 'together' i.e. in a subsisting relationship during any periods outside the UK. The actual period of separation based on your intended US trips is not clear - is it 3-4 months of the 9 month period (when your spouse is in India) or is it every 3-4 months from Jan 2006 till Sep 2006 when you come back with your spouse and child to the UK? In the latter case then the burden of proof that your relationship subsists is higher.

2. If in the worst case that she is not given an ILR (because of her 9 months absence) would she be at least given a FLR to continue her stay in UK as my wife?

She will be given a two year extension of her FLR or exceptionally 1 year FLR. She will then apply for ILR at the end of the new FLR period be it 1 or 2 years.

3. When she arrives after 9 months in the UK, what sort of questions she is likely to face with the immigration officer? Would they ask her why she decided to have her delivery in India and not UK. Of course, i will be accompanying her and our child when they enter the UK around september 2006 though.

It is difficult to give specific questions that the IO will ask but they would pertain to the purpose she seeks entry into the UK = returning on a spouse visa. They will also ask her of the length of absence and reasons thereof. IMHO your choice of where to have a baby is of no interest to them - rather the impact of that if any on the relationship. The IO will also verify the child's paperwork (presumably British Passport from the High Commission). I would carry the child's Indian and consular birth certificates as applicable. Personally I don't see any problems with re-admission. That you will be there at re-entry is a plus.

Summary
1. IMHO I don't see any probs with re-entry and/or ILR. You may have to explain the periods of separation at ILR stage so make sure you have evidence that your marriage subsists e.g. flight tickets to India etc.

2. Nine month absence period impacts considerably on 'residence requirements' for naturalisation.

3. Entry into the US for business purposes requires the correct visa. I presume you intend to use the VWP - be careful that your 'customer' requirements do not need a proper work visa e.g. H1B. Asking for the 3 month max (its actually 90 calendar days) on VWP may be enough to send you to secondary inspection. Using the VWP for the max period then exiting the US for a short time then re-entry on VWP for max is also a dangerous game.

4. Maximum time for entry into the UK as a visitor is 6 months regardless of overall period of visit visa e.g. 2 year multiple entry. IMHO a challenge for your in-laws to obtain visa is ECO's concerns (especially in sub continent) about grandparents who travel to the UK for birth related reasons and end up being 'carers' (=work) with such proceeding well post delivery.

5. Congratulations on the pregnancy and I'm sure the forum joins me in wishing you a safe delivery regardless of country of birth.

[vin123]

Catching this train a bit late, but highly useful info here - thanks.

Could someone please explain any other practical real life demerits of being a British citizen
- by descent &
- by naturalization (majority category here)

when compared to 'by birth'

[ppron747]

Catching this train a bit late, but highly useful info here - thanks.

Could someone please explain any other practical real life demerits of being a British citizen
- by descent &
- by naturalization (majority category here)

when compared to 'by birth'

JAJ explained higher up this thread that BCs by descent are unable, generally, to transmit citizenship to a further generation born outside UK. This is the only disadvantage of being "by descent" - I don't think there's anything else in the law that means that being "otherwise than by descent" is an advantage.

Naturalised BCs are BCs "otherwise than by descent" and, as such, are in exactly the same boat as BCs who were born in UK. They can automatically transmit citizenship to a further generation born abroad. This is the only advantage they have over BCs "by descent".

[Kayalami]

On the basis that many countries usually limit citizenship to those born overseas to 1st or at most 2nd generation then you are more likely to be a dual national if you naturalised = not UK born.

At the extreme IIRC the Home Office can revoke your citizenship if you engage in matters harmful to the UK if such does not leave you stateless. I believe there is clause in the NIA2002 about self initiated loss of citizenship which naturalisation could be argued to be for those whom such results in loss of their former citizenship. Hence this is more likely to be an issue for those born overseas. I would presume this would not be an issue for most of the population.. that the UK has a robust judicial system is a powerful check on this legislative issue.