PLEASE HELP REF. ABSENCES FROM UK WHILST ON 2 YR SPOUSE VISA

[ramasal]

Hi there - have trawled for hours through the boards - amazing resource, but haven't managed to find exactly what I need to know -

My question is this:- my husband is on a 2 yr spouse visa following discretionary leave, following failed asylum appln! Last year (18 August0 he had to go home as his father was seriously ill. He ended having to run the family business as his dad was no longer able to cope. He came back for a short visit on 12 Feb and went back on 26 Feb. I am planning to go out for a visit in May. So, he's been out of the country for a total of approx 31 weeks so far, and wasnt planning to return til August 06.

Before he went back, he rang the IND about ILR and they told him that there were no restrictions on how long he could be out of the country as long as he was back in the UK to make his application before his spouse visa ran out.

As we have been mislead by the IND before, i rang them again today to check this and was told something completely different, which has frightened the life out of me!! This time, I was told that short absences of say a couple of weeks away on holiday were acceptable, but months and months away would be a problem and ILR wouldnt be granted and he would have to apply for Further Leave to Remain.

Does anyone out there know what the truth is?

One thought I had was that although immigration stamp your passport when you leave the uk, they don't when you return, so how do they know how long you have been away?

I'd be extremely grateful for any assistance anyone could give on this matter, as it has such serious implications for us. The idea of having to apply for FLR and not getting ILR is pretty devastating as we have been fighting for his right to stay here with me since 2000, and we'd never imagined that he would ever have to go and take care of his family for such a long time.

[Kayalami]

1. There is no requirement that you spend the entire probation period in the UK. The Home Office however do expect that your marriage is subsisting and that you intend to live together as husband and wife. Understandably in the circumstances you describe (your spouse is away for 50% of his probation period) the burden of proof on you is of some significance and it is something that you should be prepared to address with substantive documentation to include any communication between you, travel tickets, phone bills/ e-mails/ letters with date stamps showing you have regular contact etc. Do you have any children together as such adds to the subsisting element of the immigration rules?

2. Is there a reason why your spouse has not sold the business or employed someone to run it?

3. Your approach to the stamping of travel documents is not only ignorant but broaches illegality - all passports other than those of EEA nationals are stamped on arrival. There is also a landing card that is filled out. Likewise I would presume your spouse's passport is stamped upon his entering his home country. Residence times can thus be worked out from this. In any case the immigration acts, rules and regulations requires that the applicant is truthful in any statements made for an immigration benefit as affirmed by a signature to this effect. Where it is deemed that misrepresentation of material facts occured then any leave to remain including ILR can be revoked and deportation effected. Under the non conducive para 320 of the rules the applicant can be denied a visa to ever return to the UK.

4. Your spouses absences from the UK affect his residence requirements for naturalisation.

5. It may be that the Home Office refuse to grant ILR but instead grant FLR for likely another 1 year. There would be no right of appeal but you can seek judicial review at some significant cost.

Sorry if this is a response you do not wish to hear. Of course these are just my opinions based on my understanding of current immigration laws so you don't have to take them on board. Others may have a different view. You may wish to consult a practioner in the field for further views - type OISC in any search engine.

[ramasal]

Hi Kayalami

Many thanks for your reply, and I think it will be very useful for anyone who finds themselves in a similar situation. It is actually what I was expecting to hear, and I did tell my husband pretty what you have said, having done some research, but he wanted to see what others would say.

I think we are going to struggle to get ILR - we have some evidence of communication between us, but most of our contact has been using phone cards (which won't show up on the phone as being to his home country), and Yahoo Messenger (which again will be hard to evidence)! We do have some joint bills. We don't have children. The reason he hasn't sold the business or employed someone else to run it is due to intense family pressure to stay and take care of his family (eldest and only son in a family of 4 children in an islamic household).

Regarding stamping of travel documents, I was only going on what my husband had said cos I have not travelled with him, and I agree absolutely with your commments - again that was my husband's bright idea!

I guess we will just have to wait and see what happens in October! Maybe I will have to think about moving over there, at least for a while, if the pressure keeps on for him to remain with his family.

Many thanks once again for your very helpful response.

[FromThere2Here]

Ramasal,

A couple of things that may or may not be helpful:

1. You can archive your Yahoo IM conversations and print them out. Yahoo has an option for keeping a record of all IM conversations.

2. If you're both using Yahoo IM, you should throw away your phone cards. You can talk on Yahoo IM for free, anywhere in the world. All you need would be a headset for each computer. The sound quality is better than a regular phone call. You can do the same thing by downloading Sykpe (www.skype.com). Again, the phone calls are free.

[sophiedb]

hi ramasal,

I'm putting together a similar argument for IND at the moment - my husband was out of the UK for 6 months of his 2yr visa in order to complete a vocational diploma. As far as I've been able to tell they don't mind absences/separations of up to 90 days, but anything more is treated as not quite meeting the requirements to progress to ILR.

In our case we're going to use form SET(M), but suspect that they'll simply give him further FLR to make up the lost time - in which case we'll try for ILR again once that's passed. Annoying to have to fork out the extra £350, but ILR wouldn't make any difference to his employment so we'll just grin and bear it From what I can tell this setback shouldn't affect his chances of naturalisation next year, so long as we don't leave the country for more than a brief holiday in the meantime. (something to check)

To be honest, I doubt IND would grant your husband ILR after a 12 month absence over 2 years, but if August 2006 is a set date for his return you should be able to get him further FLR. It might even be worth using form FLR(M) rather than SET(M), acknowledging the fact that everything's not ideal from the very beginning.

Does he absolutely need ILR sooner rather than later? When do you need to apply? The main risk seems to be that if your husband misses his submitted return date IND may take it badly, whether or not it's a family matter.

Sophie

[ramasal]

[quote="FromThere2Here"]Ramasal,

Hi there, many thanks for your post. I will start saving the Yahoo messages, good tip. We have used the Yahoo phone system in the past, but we have had a lot difficulties with the line for some reason - very poor reception, so we gave up. Will probably have another go. Skype could also be an option, but my other half is a real technophobe and trying explain to him to how sort it out from his end has made me think twice about trying it out!

[ramasal]

Hi Sophie

Many thanks for your post. I think you are right, and we should probably just apply for FLR cos I think from what everyone is saying that if we apply for ILR in our situation, we will just be wasting £500! As you say, he can still work if he has FLR and really that is the most important thing for us. We can still apply next year maybe for ILR once he's back here properly. There's no way he would miss his appointment for leave to remain, of whatever kind we apply for, after waiting for years to get to this stage, so hopefully we'll be ok on the FLR front. It is reassuring to hear from people on this site that ILR is not the be all and end all of everything. I had thought that he might not get anything at all and we would have to start from scratch.

Thanks again for replying.