What is the Definition of LAWFULLY PRESENT according UKBA

[grreg]

My wife has a Tier 1 (Entrepreneur) visa and I am her dependant. The visa was issued in Jun-12. We just had a little baby boy - but he was born in Melbourne. We travelled here temporarily so we could have family support at the time of his birth. We now need to apply for a Tier 1 dependent visa for our son so we can return home as a family.

However, all the bank accounts are in my name so it's a question of how do we prove existence of the maintenance funds.

In the immigration rules (Appendix E - Maintenance (funds) for the family of Relevant Points Based Systems Migrants) term 'lawfully present' appears in paragraphs d) and e).

So here is the question - I have the valid leave to remain in the UK, but am currently in Australia temporarily - effectively on a holiday. Am I lawfully present in the UK right now?

It all depends on the definition of that term. I have found a case online Szoma v Secretary of State for the Department of Work and Pensions in which the term seems to be defined more by the terms of immigration rather than physical location (maybe).

Any help would be appreciated. If I am lawfully present then the bank accounts in my name will be accepted by UKBA as evidence of the funds being available. If I am not currently lawfully present in the UK - then I have a big problem!

[Choc-Ice]

My wife has a Tier 1 (Entrepreneur) visa and I am her dependant. The visa was issued in Jun-12. We just had a little baby boy - but he was born in Melbourne. We travelled here temporarily so we could have family support at the time of his birth. We now need to apply for a Tier 1 dependent visa for our son so we can return home as a family.

However, all the bank accounts are in my name so it's a question of how do we prove existence of the maintenance funds.

In the immigration rules (Appendix E - Maintenance (funds) for the family of Relevant Points Based Systems Migrants) term 'lawfully present' appears in paragraphs d) and e).

So here is the question - I have the valid leave to remain in the UK, but am currently in Australia temporarily - effectively on a holiday. Am I lawfully present in the UK right now?

It all depends on the definition of that term. I have found a case online Szoma v Secretary of State for the Department of Work and Pensions in which the term seems to be defined more by the terms of immigration rather than physical location (maybe).

Any help would be appreciated. If I am lawfully present then the bank accounts in my name will be accepted by UKBA as evidence of the funds being available. If I am not currently lawfully present in the UK - then I have a big problem!

Hi, You have answered your question yourself.

I have found a case online Szoma v Secretary of State for the Department of Work and Pensions in which the term seems to be defined more by the terms of immigration rather than physical location .

Lawfully present meaning you're residing in the UK according to the terms and condition of your Resident permit /Visa..As long as your partner is carrying out business activities in accordance with T1 rules then no problem in applying for the Dependent outside or inside the UK. Hope this helps.

[grreg]

Thanks for your comment.

What I really should have made more clear is - will UKBA apply that definition to the term 'lawfully present' when accessing the application or do they have some other definition? I have looked at the glossary on their website and their is no mention of this term.

I love the logic that while I am outside the UK I can still be lawfully present there - mind bending!

[Choc-Ice]

Thanks for your comment.

What I really should have made more clear is - will UKBA apply that definition to the term 'lawfully present' when accessing the application or do they have some other definition? I have looked at the glossary on their website and their is no mention of this term.

I love the logic that while I am outside the UK I can still be lawfully present there - mind bending!

LOL @ mind bending! Remember the onus is on you to prove that you're lawfully present..ie providing relevant paperwork- bank statement, work or business activities etc..

[grreg]

I'm still not clear if I am 'lawfully present' in the UK while holidaying in Australia.

What I need to know is this. Do I need to be physically present in the UK to be lawfully present?

Or is lawfully present a special legal term which only relates to the legality of my immigration status?

[Ayyubi72]

You have answered your own question in the question itself and another member has confirmed that it is the correct position.

But you insist on asking the same thing again and again. Why?

[grreg]

Sorry but I haven't asked the same thing again and again nor has the question been answered. As I said in my last post I am still unclear on the exact meaning of lawfully present.

If someone can tell me the definition of lawfully present I'd be very grateful.

I have searched this forum and the and the definition of LAWFULLY PRESENT comes up without ever receiving a definitive response.

You ask why? Because it costs me in excess of AUD$1300 to submit an application and I don't want it to be declined. I can't afford to lose that amount of money or the associated time. I need to be confident that I have met all the necessary requirements before submitting it - is that a satisfactory why?

[pennylessinindia]

First point to note is as far as I can see your wife is the sponsor so her bank account is the one with the funds. The term about lawful is because if her visa had expired or she was doing something that she was not allowed to do she should would not be lawfully present.
It is your wife's status not her physical location that is of importance

[Choc-Ice]

I'm still not clear if I am 'lawfully present' in the UK while holidaying in Australia.

What I need to know is this. Do I need to be physically present in the UK to be lawfully present?

Or is lawfully present a special legal term which only relates to the legality of my immigration status?

To answer your question again, You DO not need to be physically present in order to be classed as lawfully present in the UK! You can apply from your country of origin if different from the country of resident.

Don't complicate the situation..Just gather relevant documents and apply from where you are! Your application should be straightforward!