ILR or Spouse visa?

[jessica_halida]

Hello board member and Seniors.
I have a query to ask, first of all this is my timeline.

Aug 2003 - Married, Singapore
Sept 2005 - Arrive in UK, husband - Student, me - student dependant
Dec 2006 - Our son is born in UK
May 2007 - I was granted HSMP (valid for 1 year), my son as my dependant
May 2008 - I switched to Tier 1 (valid for 3 years)
July 2010 - My husband graduated and got his Tier 1 PSW (valid for 2 years)
Oct 2010 - My husband work transferred overseas permanently although he is on agreement to go home(UK) every 3 month for 2-4 weeks. He still pay his council tax in UK.
May 2011 - I extend my Tier 1 (valid for 2 years)
May 2012 - I will apply for ILR (and I assume after getting ILR, my son can apply for Naturalisation).

Question : since me and my husband has been married for 9 years in 2012, and we has always been staying in the same house until Oct 2010 when he left for his job, and he was with me in UK since 2005-2010, can he apply as ILH when I get my ILR? or should he be on 2 years spouse visa instead?

Reason why I am asking is because I read this on immigration rules :
quoted from : http://www.ukba.homeoffice.gov.uk/polic ... _partners/

__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and...


Thank you!

[terriblescream]

Hello board member and Seniors.
I have a query to ask, first of all this is my timeline.

Aug 2003 - Married, Singapore
Sept 2005 - Arrive in UK, husband - Student, me - student dependant
Dec 2006 - Our son is born in UK
May 2007 - I was granted HSMP (valid for 1 year), my son as my dependant
May 2008 - I switched to Tier 1 (valid for 3 years)
July 2010 - My husband graduated and got his Tier 1 PSW (valid for 2 years)
Oct 2010 - My husband work transferred overseas permanently although he is on agreement to go home(UK) every 3 month for 2-4 weeks. He still pay his council tax in UK.
May 2011 - I extend my Tier 1 (valid for 2 years)
May 2012 - I will apply for ILR (and I assume after getting ILR, my son can apply for Naturalisation).

Question : since me and my husband has been married for 9 years in 2012, and we has always been staying in the same house until Oct 2010 when he left for his job, and he was with me in UK since 2005-2010, can he apply as ILH when I get my ILR? or should he be on 2 years spouse visa instead?

Reason why I am asking is because I read this on immigration rules :
quoted from : http://www.ukba.homeoffice.gov.uk/polic ... _partners/

__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and...


Thank you!

Minors do not apply for Naturalisation instead when you get your ILR, you can register your son as a British Citizen.

If your husband is abroad he wont be able to apply ILR instead Spouse Visa

[jessica_halida]

Hi terriblescream,

Thank you.
So is it the requirement to apply as ILH to be in the UK while applying? would you mind point me to the rules? So what is the minimum requirement?

[terriblescream]

Hi terriblescream,

Thank you.
So is it the requirement to apply as ILH to be in the UK while applying? would you mind point me to the rules? So what is the minimum requirement?

Where is your husband, or from where does he intend to apply?

[jessica_halida]

My husband is currently on assignment in Indonesia. However, we are flexible on where he will apply his visa, as you see he still have valid Tier 1 PSW himself to gain entry to UK. In fact his Tier 1 PSW will still be valid when I get my ILR. That's why I am now plotting possible best scenario, like : should he stay on Tier 1 PSW? or should he switch to dependant visa? will this be of any help for him to get ILH faster?

[jessica_halida]

Also when I read the following links : http://www.ukba.homeoffice.gov.uk/polic ... _partners/

I actually don't quite understand what the difference of

(281) Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement

and
(287) Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom

[geriatrix]

Question : since me and my husband has been married for 9 years in 2012, and we has always been staying in the same house until Oct 2010 when he left for his job, and he was with me in UK since 2005-2010, can he apply as ILH when I get my ILR? or should he be on 2 years spouse visa instead?

Before I can answer the queries, I need to know what you mean by ILH?

[jessica_halida]

Hi Sushmetha,

I do apologise, that was mistype, I mean "ILR". Not sure why I type ILH twice!! My mistake.


I just read yet another link.
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

2.6. Granting leave to enter
All passengers who have an entry clearance endorsed "Spouse/ CP" should be granted leave to enter for a period not exceeding 27 months on Code 1 and advised that, provided the marriage is still subsisting, they should apply to the UK Border Agency for indefinite leave to remain not earlier than 28 days before their leave is due to expire.

Only spouses who have completed a period of 4 years as the husband/wife of a person who has (at the time of decision on the entry clearance application) a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and who is on the same occasion seeking admission to the United Kingdom for the purposes of settlement, having lived together abroad with their spouse throughout that 4 year period, should be issued with an entry clearance endorsed "Settlement Spouse/ CP". These endorsements are rare.
Spouses in possession of an entry clearance endorsed "Settlement Spouse/ CP" should be granted indefinite leave to enter.

2.8 Statistical Codes
H Husband - probationary 27 months
WYR Wife - probationary 27 months
SH Husband - given ILE accompanying or joining wife
SW Wife - given ILE accompanying or joining husband

However on link :
http://www.ukba.homeoffice.gov.uk/partn ... lpartners/

never mention anything on that 4 year rule?

And if say, my husband had to apply for Tier 1 PSW -> Spouse visa, can it be done in UK? (I get the impression he can, am I right?)

[geriatrix]

Your husband doesn't qualify for ILE.

Does your husband require a work permit / visa to work in Indonesia? Or is he an Indonesian national or a citizen of a country who do not need a work permit for Indonesia?

[jessica_halida]

Hi Sush,

Thank you.
What is the exact reason that he is not qualify? Is that because he is out of UK for too long? I am new to all this ILR rule and try to get my head around it. So, can I say when I get my ILR, my husband will need to switch from Tier 1 PSW -> Spouse visa? Or does he need to apply for Tier 1 PSW-> my dependant (Tier 1 General) -> Spouse visa?

He does not require work permit in most south east asian country up to certain number of days (it's like when British citizen need to work in EU zone, there are some kind of agreement). But he is Indonesian citizen, so yes, he won't need to get any visa to work in Indonesia.

And one more piece of information I have not mention. My husband will be back to UK in June 2012, for good

Regards,
Jessica

[vinny]

Your spouse does not qualify for ILE because 281(i)(b)(i) is not applicable. You haven't got ILR and having been living with him outside the UK for at least 4 years ago.

[geriatrix]

Option 1: Your husband applies for entry clearance from outside the UK as dependant of PBS migrant before you apply for ILR, travels to UK as dependant and then you include him in your settlement application and provide evidences of cohabitation in the UK for at least 2 years preceding the application.
Risk - Your husband has not been living in the UK since Oct 2010 with you and the caseworker may figure this out from the date stamps in his passport and may refuse the application.

Option 2: After you are granted settlement, your husbandswitches to FLR(M) and applies for settlement as and when he becomes eligible.

[jessica_halida]

Option 1: Your husband applies for entry clearance from outside the UK as dependant of PBS migrant before you apply for ILR, travels to UK as dependant and then you include him in your settlement application and provide evidences of cohabitation in the UK for at least 2 years preceding the application.
Risk - Your husband has not been living in the UK since Oct 2010 with you and the caseworker may figure this out from the date stamps in his passport and may refuse the application.

Option 2: After you are granted settlement, your husbandswitches to FLR(M) and applies for settlement as and when he becomes eligible.

Hi Sush,

So for Option 1, you are sugesting : Tier 1 PSW -> Tier 1 dependant (my dependant) -> ILR (with the risk of being rejected for his period overseas)

Option 2 : Tier 1 PSW -> Spouse Visa from inside UK, and later on -> ILR when he is done with his probation period.

Btw, when I read the rules, what exactly the difference of

(281) Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
and
(287) Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom

both sound like ILR to me, or I am missing something?
Btw Sush, thanks a lot. I really appreciate your opinion

[jessica_halida]

Your spouse does not qualify for ILE because 281(i)(b)(i) is not applicable. You haven't got ILR and having been living with him outside the UK for at least 4 years ago.

Hi Vinny,
Ok, I probably misunderstood the rules. From what I read, this is what its implied.

has been married to the sponsor for at least four years and they have been living together outside the UK during that time; (ok we'd been married since 2003 and living in the same house in singapore 2003-2005 and in UK 2005-2010)
and
has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he/she is aged 65 or over at the time of the application (see SET16 Knowledge of Language and Life in the UK - The KOL provision); (have not take this, but not really a problem I guess)
and
the sponsor has (at the date of decision on the application) a right of abode/indefinite leave to enter; then Indefinite Leave to Enter (ILE) may be granted. (I plan to apply for my own ILR in may 2012, and apply his ILE june 2012, so by the time his visa decision need to be made - me - as the sponsor already have ILR)

But from what you said, I concluded my husband is not eligible for ILE because I don't have ILR at least 4 years ago (I might misunderstood you, but this what I think). So if say I have ILR in 2006 (4 years ago), my husband might be fall into this rule and eligible for ILE now? Sorry for being very thick, I just want to make sure I understand the rules
Thanks a lot vinny!

[jessica_halida]

also, I am a bit curious, what's the benefit of applying ILR together rather than 2 separate application? (I presume this is what Sushdmetha suggesting on OPTION 1) is it incurring less fee?

[Greenie]

Your spouse does not qualify for ILE because 281(i)(b)(i) is not applicable. You haven't got ILR and having been living with him outside the UK for at least 4 years ago.

Hi Vinny,
Ok, I probably misunderstood the rules. From what I read, this is what its implied.

has been married to the sponsor for at least four years and they have been living together outside the UK during that time; (ok we'd been married since 2003 and living in the same house in singapore 2003-2005 and in UK 2005-2010)

But from what you said, I concluded my husband is not eligible for ILE because I don't have ILR at least 4 years ago (I might misunderstood you, but this what I think). So if say I have ILR in 2006 (4 years ago), my husband might be fall into this rule and eligible for ILE now? Sorry for being very thick, I just want to make sure I understand the rules
Thanks a lot vinny!

You haven't been married and living together outside the UK for four years, hence why he doesn't qualify for ILE.

[Greenie]

Option 1: Your husband applies for entry clearance from outside the UK as dependant of PBS migrant before you apply for ILR, travels to UK as dependant and then you include him in your settlement application and provide evidences of cohabitation in the UK for at least 2 years preceding the application.
Risk - Your husband has not been living in the UK since Oct 2010 with you and the caseworker may figure this out from the date stamps in his passport and may refuse the application.

Option 2: After you are granted settlement, your husbandswitches to FLR(M) and applies for settlement as and when he becomes eligible.

Hi Sush,

So for Option 1, you are sugesting : Tier 1 PSW -> Tier 1 dependant (my dependant) -> ILR (with the risk of being rejected for his period overseas)

Option 2 : Tier 1 PSW -> Spouse Visa from inside UK, and later on -> ILR when he is done with his probation period.

Btw, when I read the rules, what exactly the difference of

(281) Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
and
(287) Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom

both sound like ILR to me, or I am missing something?
Btw Sush, thanks a lot. I really appreciate your opinion

281 is for applications made from outside the UK. It is then divided into those who qualify for automatic settlement - ILE (see 282 b)) or 27 months leave to enter see 282a) and c)

287 is for applications for ILR from within the UK once the person has completed their two year probationary period as the spouse of the settled person as set out in the rules.

[Greenie]

also, I am a bit curious, what's the benefit of applying ILR together rather than 2 separate application? (I presume this is what Sushdmetha suggesting on OPTION 1) is it incurring less fee?

yes

[jessica_halida]

Thanks Vinny,

So that means this leave me with 2 option since Tier 1 PSW -> ILE is not possible.

As laid by sushdmeta.

Option 1 : Tier 1 PSW -> Tier 1 dependant (my dependant) -> ILR (with the risk of being rejected for his period overseas)

Option 2 : Tier 1 PSW -> Spouse Visa from inside UK, and later on -> ILR when he is done with his probation period.

Ideally, I would really want option 1, but I don't know how likely he will get rejected. His bank account, tax letter, council tax, mortgage, all still arrive in my house in UK.

So probably option 2 is saver to go, but since the nature of his job as management consultant, he'll be overseas a lot, even if his contract based in UK. I've heard most of them goes to heathrow every monday morning and return on friday. Will this means he'll be in probation / spouse visa forever?

[Greenie]

Thanks Vinny,

So that means this leave me with 2 option since Tier 1 PSW -> ILE is not possible.

As laid by sushdmeta.

Option 1 : Tier 1 PSW -> Tier 1 dependant (my dependant) -> ILR (with the risk of being rejected for his period overseas)

Option 2 : Tier 1 PSW -> Spouse Visa from inside UK, and later on -> ILR when he is done with his probation period.

Ideally, I would really want option 1, but I don't know how likely he will get rejected. His bank account, tax letter, council tax, mortgage, all still arrive in my house in UK.

So probably option 2 is saver to go, but since the nature of his job as management consultant, he'll be overseas a lot, even if his contract based in UK. I've heard most of them goes to heathrow every monday morning and return on friday. Will this means he'll be in probation / spouse visa forever?

You need to be honest about the fact that he has been working overseas. Don't try to submit his bank statements etc as evidence he has been living with you in the UK if he has not. If you do this UKBA may say he has used deception in his application.

Read para 4.5 of this document regarding absences during the probationary period.

[jessica_halida]

Thanks Vinny,

So that means this leave me with 2 option since Tier 1 PSW -> ILE is not possible.

As laid by sushdmeta.

Option 1 : Tier 1 PSW -> Tier 1 dependant (my dependant) -> ILR (with the risk of being rejected for his period overseas)

Option 2 : Tier 1 PSW -> Spouse Visa from inside UK, and later on -> ILR when he is done with his probation period.

Ideally, I would really want option 1, but I don't know how likely he will get rejected. His bank account, tax letter, council tax, mortgage, all still arrive in my house in UK.

So probably option 2 is saver to go, but since the nature of his job as management consultant, he'll be overseas a lot, even if his contract based in UK. I've heard most of them goes to heathrow every monday morning and return on friday. Will this means he'll be in probation / spouse visa forever?

You need to be honest about the fact that he has been working overseas. Don't try to submit his bank statements etc as evidence he has been living with you in the UK if he has not. If you do this UKBA may say he has used deception in his application.

Read para 4.5 of this document regarding absences during the probationary period.

Thanks again Vinny.
Yes, I will disclose all information to UKBA about his stay etc. I read the para 4.5 you mentioned, I am unsure what'll happen with my husband. It's just the nature of his job that he is in and out of airport so often. One interesting that happens is when he entered UK with his PSW visa (he came back every 3 months), the immigration officer just ask him his job title and who he work for, and let him in - albeit he explains that he came for holiday and seeing me and his kid and not for work.

[geriatrix]

Is your husband currently working as a UK based employee of an organisation on an overseas assignment in Indonesia? If so, it could explain why he has never had a problem in entering UK repeatedly on basis of his Tier 1 (PSW) leave.

If not, IMHO, your husband should consider himself lucky that the different IOs have not been able to figure out that he has been using his Tier 1 (PSW) leave for "visiting" UK - with no economic / work-related / employment ties to UK. How long he may continue to be lucky is anyone's guess.

[jessica_halida]

The line is not very clear with my husband's job. He was interviewed in London, but on the last round of interview they decide since my husband has an Indonesian passport and asian language knowledge - which means he can work in asian country with no permit, plus Eurozone is not booming as much as asia at the moment, they decide to over him a transfer to their office in south east asia with the clause that he is allowed to take extra off time to came back to UK to see us.

The company he is working for is based in US, but have an office around the world (including london). But you are right sush, since he is not paid in UK or contributing tax to HRMC, I am actually a bit worried, and thus I plan to switch him to be my dependant.
But it just sound like a lot of waste of money for me is he do this :
Tier 1 PSW -> Tier 1 General dependant -> Spouse Visa -> ILR (if he is lucky not to be asked to apply for spouse visa yet again).
What do you think?

[Greenie]

the line seems quite clear to me - he is not employed in the UK or living in the UK. It may sound like a waste of money but if your husband wants to work outside the UK then this is probably the route you will have to go down as it will be evident from his passport and work history that he is not living in the UK with you.

[jessica_halida]

the line seems quite clear to me - he is not employed in the UK or living in the UK. It may sound like a waste of money but if your husband wants to work outside the UK then this is probably the route you will have to go down as it will be evident from his passport and work history that he is not living in the UK with you.

Thanks Greenie and Sush,
So you reckon if he applied for dependant visa, he can travel to UK as much/less as he wants independent of me not accompanying him travelling to UK? and what happen if I have ILR is that means his dependant visa is invalid?