Extended stay outside UK during birth of the child

[brian76]

Dear Members,

we are currently on Tier 1 visa (moved from HSMP). My wife (doctor) is the main sponser. we are eligible for ILR in september 2011. we are expecting our first baby in Oct 2010 here in the UK. My wife is on maternity leave. she plans to go to India after the delivery during her maternity leave i.e roughly from November 2010 - April 2011 (6months). we are also planning to stamp the baby's dependence visa in India.

Since we are eligible for ILR in september 2011, and my wife is the main sponser, will it effect our chances for ILR for the reason her being outside the country for the number of days (we also spent few of our holidays not exceeding more than 30days each time outside the country every year). since she works for NHS, she will get her maternity pay to prove her work status with pay slips. even i can prove my work status with pay slips.

The UK Citizenship and Immigration act 2009 says (page 34 section 39 para 4)
“(a) treat the applicant as fulfilling the requirement specified in
paragraph 1(2)(b) although the number of days on which the
applicant was absent from the United Kingdom in a year of
the qualifying period exceeds 90;â€

[vinny]

See also Chapter 6A - Settlement.

[brian76]

Thanks for the reply.

so i understand that she cannot stay for more than 3 months (90 days) out of the country at a given time.

Incase she does stay out of the country for more than 3 months as mentioned in the first post, what would be the best way to move forward?

[brian76]

Hi, i would appreciate if some replies to my last query in the thread


"Incase my wife does stay out of the country for 6 months as mentioned in the first post, what would be the best way to move forward?"

1. Can we apply for FLR to compensate the days stayed outside UK and then apply for ILR (we were granted HSMP under April 2006 - Nov 2006)?
how long will the FLR visa be granted incase we need to apply for FLR to fulfill the stay inside UK required for ILR?

or

2. do we have to start fresh when when our visa expires in september 2011 and apply for a fresh Tier 1 Visa?
will this reset the ILR count to zero

or

3. is there any other visa under which we can extend our stay to fullfill the days required for ILR

i would really appreciate if someone replies to this, as i need to take a quick decision.

regards,

[geriatrix]

A single absence of more than 90 days, when not work related or due to exceptional compassionate reasons, may reset the ILR clock to 0.

Near to the time of expiry of current leave, you may apply for a further extension (under old HSMP rules). If granted, the leave should be for 2/3 years.



regards

[brian76]

thanks for the reply. with regard to ur reply

"Near to the time of expiry of current leave, you may apply for a further extension (under old HSMP rules). If granted, the leave should be for 2/3 years. "

assuming my wife is out of UK for 6 months and i go ahead for the extension

when do i apply for ILR after the extension. do i have to stay for another 5 years after the new extension to apply for ILR or can i apply for ILR once i fullfill the days i need to complete of my absense of my existing 5 yrs.

your response is highly appreciated

[geriatrix]

assuming my wife is out of UK for 6 months and i go ahead for the extension

You cannot apply for extension unless your spouse (HSMP migrant) applies for it. You may apply at the same time as her or later on, but never before!

when do i apply for ILR after the extension. do i have to stay for another 5 years after the new extension to apply for ILR or can i apply for ILR once i fullfill the days i need to complete of my absense of my existing 5 yrs.

As a dependent, your eligibility to settlement is dependent on the main migrant applying for settlement. e.g. - when main migrant's ILR clock is reset to 0, yours is reset to 0 too. e.g. - If the main migrant refuses to or does not intend to apply for settlement status then as a dependent you cannot apply for settlement.

In simple words, a dependent's immigration status is completely dependent on the immigration status of the main migrant.


regards

[brian76]

Sorry for not clarifying this.

all my queries were on behalf of my wife.

so my query in my last post was actually on behalf of my wife (who is the main sponser) asking it


"assuming my wife is out of UK for 6 months and i go ahead for the extension

when do i apply for ILR after the extension. do i have to stay for another 5 years after the new extension to apply for ILR or can i apply for ILR once i fullfill the days i need to complete of my absense of my existing 5 yrs. "

so i would appreicate of if you could answer

[geriatrix]

all my queries were on behalf of my wife.

so my query in my last post was actually on behalf of my wife (who is the main sponser) asking it


"assuming my wife is out of UK for 6 months and i go ahead for the extension

How can your wife's wife be out of UK for 6 months?

If the ILR clock is reset to 0 because of a single absence of more than 90 days (not work related or due to exceptional compassionate reasons) then yes, the main migrant will have to spend 5 years in the UK to become eligible for settlement under current rules.

Please do take into account that if the ILR count is reset to 0 then the protection offered by HSMP JR that affected HSMP migrants are entitled to settlement (ILR) as is granted currently may not apply, and you may fall under the new probationary citizenship law(s) if and when the government implements it. In such case, the qualifying residential period under the new law(s) will apply to you.


regards

[geriatrix]

Mother and the child making short trip(s) to the UK before the 90 days limit is reached may be a simple solution to the problem that may enable the family to apply for ILR in 2011.

Remember, that's one trip to UK for every 90 days (single) absence. So the number of trips needed will depend on number of days one intends to spend outside the UK.

This said, do also remember that the total number of absences in the 5 year period cannot be more than 180 days. So calculate th number of days your wife has been absent from the UK in the past and evaluate how many days she has to her credit. Plan the upcoming absence accordingly.


regards