Switching from discretionary leave to spousal

[patience7]

Hi

My partner was issued with a discretionary leave to remain visa for 3 years last year. I understand spousal is a 2 year visa and that after a spousal visa you can apply for ILR after completing the spousal rather than my partner applying for another DLR after his current one expires before he can apply for ILR. I wanted to know the process for doing this and success rate as if we do spousal we plan to do an out of country application as heard it is easier.

1. Do you have to be actually in the country when submitting the (out of country) spousal application or can you do it from hear and just wait for a decision from the country?

2. When would I actually have to submit the spousal application so my partner can apply for ILR as the current DLR visa will soon in a few months have 2 years remaining on it. Do I submit the application before then, so it can replace the last 2 years of the current visa or can I do it when the current DLR is finished? OR could I say submit a spousal application say within halfway through the DLR visa time period?

3. I am planning to study very soon so will not be working for two years - by my partner will being as I am my partners sponsor will the spousal application see my studying as a negative and could it favour in a rejection in terms of financial support? As at the time of submitting the application I will be studying?

Any advice would be appreciated Im so confused and time is fast approaching.

Thanks

[John]

You are using words .... partner .... spousal .... so before going on can we clarify the relationship? Are the two of you married? Or Civil Partners? Or if neither of those legal relationships, please explain, including how long the two of you have been living together?

[patience7]

Married, five years and yes have been living together since before marriage no children yet though

[John]

Thanks for clarifying that. Sorry I should have asked before, what about you? Your nationality? And if not EEA, your UK immigration status?

Also your spouse, are they working?

[patience7]

I am British my partner works full time but very soon I won't be and me personally by then I will probably have no savings but my partner has already started saving.

Thanks

[John]

OK, you can use form FLR(M) to apply for a 2-year spouse visa, in the UK. Near the end of that 2-year spouse visa you can use form SET(M) to apply for ILR, or whatever it is going to be called at the time.

Especially if your spouse is working there should not be a problem passing the financial test. But especially if the FLR(M) application is made soon, while you are still working, that will make the result of the application even more certain.

[patience7]

Hi

Thanks but I don't think you understand my questions - I have been advised that an out of country 2 year spousal visa would be quicker than in country due to the home office's longer waiting times plus out of country application is less likely to hold my partners previous overstayer issue against gim compared to an in country application but in light of this I have a few doubts hence my above questions that I needed answering.

Can anyone help me also?

Thanks

[Wanderer]

I thought DL to Spouse switch had to be done out-of-country, but like the man in the orthopaedic shoes, I stand to be corrected.....

[patience7]

Wanderer,

That is what I thought if you or anyone has more advice or information please help or say more.

Thanks

[katkouta]

hi patience 7 ,

Pls i just wanted to know how long did your husband waited for his DL to be granted since the date of his application. thx

[patience7]

Hey

It was a long 2 and 3/4 years from the application that is why i am hesitant about doing another DLR for my spouse again before ILR and considering an out of country 2 year spousal visa so I can go straight to ILR but I would like to know the pros and cons in light of my situation described above.

[Thandia]

I thought DL to Spouse switch had to be done out-of-country, but like the man in the orthopaedic shoes, I stand to be corrected.....

This is my understanding too. It is not possible to switch from DLR to a spouse visa in country. Extract from UKBA site:

On 1 October 2004, Command Paper 6339 introduced a requirement preventing switching into the marriage category by a person who only has leave which was granted outside the Immigration Rules. Grants of discretionary leave are outside the Immigration Rules. Therefore those persons granted discretionary leave who apply on or after 1 October 2004 on the basis of a marriage, or the establishment of a partnership with someone present and settled here, cannot seek to switch into leave to remain on the basis of that relationship. Provided the relationship continues to exist they can seek to remain in the UK until they have completed 6 years’ discretionary leave (in 2 periods of 3 years’ stay) and then apply for settlement. Or, at a time of their choosing, they can leave the United Kingdom and apply for entry clearance from abroad.

Taken from HERE

[Thandia]

PS. I also stand corrected if I am wrong.

[patience7]

Thanks for the info Thandia

So is it from my understanding switching to spousal needs to be done out of country (physically....i.e. my spouse would need to be out of the country at the time of applying for the leave to enter spousal visa)...also do you know the very latest you could make this switch during the period of a DLR visa...i.e no later that the 1st year of DLR 2nd year?

Thanks

[HRY2005]

do you know the very latest you could make this switch during the period of a DLR visa...i.e no later that the 1st year of DLR 2nd year?

He could apply out of country anytime on his DLR, it doesn't matter if its the first year or second.

[patience7]

do you know the very latest you could make this switch during the period of a DLR visa...i.e no later that the 1st year of DLR 2nd year?

He could apply out of country anytime on his DLR, it doesn't matter if its the first year or second.

Thanks, so anytime within the three year period is fine? Also once granted does it replace the existing time on the dlr visa or does the spousal visa start when it is granted and end 2 years from the "granted date" - if this makes sense?

[Thandia]

do you know the very latest you could make this switch during the period of a DLR visa...i.e no later that the 1st year of DLR 2nd year?

He could apply out of country anytime on his DLR, it doesn't matter if its the first year or second.

Thanks, so anytime within the three year period is fine? Also once granted does it replace the existing time on the dlr visa or does the spousal visa start when it is granted and end 2 years from the "granted date" - if this makes sense?

AFAIK, it starts when the two years is granted, usually for 27 months and ends at the end of that period. But, he will no longer be entitled to public funds. He needs to be physically outside the cuntry when he apples as he will need to apply & attend a biometrics interview for his pics & fingerprints on submission of the application.

[patience7]

do you know the very latest you could make this switch during the period of a DLR visa...i.e no later that the 1st year of DLR 2nd year?

He could apply out of country anytime on his DLR, it doesn't matter if its the first year or second.

Thanks, so anytime within the three year period is fine? Also once granted does it replace the existing time on the dlr visa or does the spousal visa start when it is granted and end 2 years from the "granted date" - if this makes sense?

AFAIK, it starts when the two years is granted, usually for 27 months and ends at the end of that period. But, he will no longer be entitled to public funds. He needs to be physically outside the cuntry when he apples as he will need to apply & attend a biometrics interview for his pics & fingerprints on submission of the application.

Hi Thandia

I have pm'd you a few more questions if you can answer my situation is also mentioned at the beginning of this post.

Thanks

[fathema]

Hello all

Hope all of you doing well .I got 3 years discretionary visa based on marriage to British citizen on sep 2011 .i came to UK on 2006 as a student then after was in post study visa . my PSW visa expire on 2nd of may 2011 but i apply for spouse visa 22nd of may2011 .it was a mistake from HO side as i called them for a premium service on 20 April 2011 ( 12 days before my visa expire ) in public enquiry office .i explained them that my visa is expiring on 2nd of may 2011 but they had given me the a post date on 22nd of may 2011 !!! And never advised me that it will be a problem as i am applying after my visa expire .anyway long story short, i applied and they refused me on ground of 20 days overstayed. Then i wrote a letter to HO for reconsideration stating the facts and evidence .after that on sep 2011 they have given me 3 years discretionary visa instead of spouse visa .and as far i know it takes 6 years to apply for ILR.

So i need advise on following facts:

- they asked me to apply from overseas for spouse visa, so if i go back to my country and put a new spouse visa application on the current situation 2012 what is the chance of getting spouse visa successfully and how long it will take .many says it doesn't take no longer than 3 months but all we know we cant rely on HO as they do many mistakes and busy as well.

- I heard that spouse visa will be from 5 years from April 2012

- As there are no where written on my visa that I cannot use public fund , can i apply for job seeker allowance , housing benefit and other benefits when i am in discretionary visa on based of marriage to a british

- if in future separation happen between marriage couple is it going to affect one's stay or she can continue extend discretionary visa route to ILR

The last question behalf of my friend:

my friend is in discretionary leave same as me 3 years , got in mar 2011 , but they have a child , for some personal reason his wife ( British ) want divorce , so does he can stay in uk , or extend his visa and later apply for ILR on the base of his child as his child is by born British and also human rights as a father

Many thanks and regards for your valuable advice .i will be grateful to all of you .God bless you.