Marriage to BC broken down

[CAR01]

Hi All
Really hoping that you can advise me on the best way forward. I know that I have posted here before about my queries and success stories, but really have a huge problem now and don't quite know what is the best to do.

Quick Background
I arrived in the UK december 2008 on a UK Ancestry visa with my British Husband. My daughter (not husbands' child) arrived in October 2009 on Dependant of UK Ancetry etc. My daughter and I both switched from a UK Ancestry visa to spousal visa in April 2010. My daughter and I qualify for ILR in March 2012 and immediately after that is granted we qualify for BC as I would have been in the country for more than 3 years and she will still be a dependant under the age of 18.

My husband and I got married in September 2007.

My marriage has now broken down for a number of reasons and to top it all of I am currently unemployed for just over two months and I am the bigger earner in the household. My husband will be moving out as soon as I get a job, which will be within the next month. He has indicated that he will support my application for ILR and BC and then divorce once BC is granted. He said that he is moving into shared accommodation so that there are no bills in his name and will leave his address etc as the property we live in at the moment and he will collect his mail every two weeks. I however, will be left with all the joint bills etc on the house. Also, my daughter and I are planning a holiday abroad in August and my other concern is that we get questioned, like we did when we returned (with my husband) from abroad last year.

One of my main concerns is that my husband changes his mind or gets involved with someone else and then becomes really difficult about my ILR or his new partner does or even worse, that he decides to move to Spain or something.

I am aware that in terms of the spousal visa and immigration rules, UKBA have to be notified immediately if the circumstances change or the relationship ends.

I have read the post below and don't know if it would apply to me or only to non-EU married to EU. By the way, I am a South African citizen.
http://www.immigrationboards.com/viewtopic.php?=19529
If this does apply to me, how do I go about it as we have been married for more than 3 years and have lived in the UK for more than 2 years.

Alternatively, would I be required to switch back to the UK Ancestry visa as I qualify for this route, as I want to remain in the UK as my parents, brother and sister are here. If I have to switch back, would it be a reasonable request to ask UKBA if they could backdate it to my original UK Ancestry visa / first date of entry to UK, eg. 29 December 2008 due to the unforseen circumstances?? Otherwise I have to start 5 years from the beginning again the last two and a bit years would have been wasted, never mind all the visa costs for two people that I have had to pay.

Any help and advice would be greatly appreciated as I don't at this stage want to contact UKBA for advice. I just don't wish to find myself in a difficult situation in March next year if my husband changes his mind and decides to be spiteful.

Many thanks
CAR

P.S. forgot to ask, if switching back to UK Ancestry is the right way, do I do this while I am still married or do I wait for the Decree Absolute once divorce is final.

[PaperPusher]

If he "supports" your application for ILR when you are not living together as husband and wife and don't intend to permanently he is facilitating illegal immigration and you will be making a fraudulent application for leave to remain. Both of you could in a worst case scenario go to prison, then you could be dragged kicking and screaming from the country. UKBA could also just decide to remove you and your daughter from the UK. Then you wouldn't be able to come back to the UK for at least 10 years for a holiday according to how the rules are being applied now.

The legal way is always the best. You will just have to suck it up. You will also start from year one again.

If you have a child together that could be a route to stay in the UK, otherwise it is back to UK Ancestry.

There is no provision in the immigration rules for an initial application in the UK for UKA, it is entry clearance only. It would be treated as an initial application because you are not extending.

If you go away with your spouse visa and try to re-enter on that you could be refused entry.

I am not sure if you would be required to divorce before returning on UKA, if their are rules about being married it will be clearly in there.

[CAR01]

Many thanks for your reply and I do understand what you are saying as it is pretty much the conclusion I have come to myself.

In terms of going back to South Africa and reapplying, this would be impossible due to the cost of two of us having to return and has an affect on school and work.

The UKBA website states the following regarding UKA :

Applying from inside the UK
If you have already entered the UK in a different immigration category, you cannot switch into the UK ancestry category. We will only give you permission to stay in the country on the basis of UK ancestry if:

â– you entered the UK holding entry clearance based on your UK ancestry; or
â– we have already given you permission to stay based on your UK ancestry.

Could I therefore not switch as it is the category I originally entered the UK on? This would make sense to me rather than force people to leave, reapply and return etc. I know that they view each case on its own merits and facts and surely they would take specific circumstances into consideration.

In terms of the link of a previous post I included in my query, would the 3 years marriage and 1 year living in the UK rule not apply to me or is that only for non EU married to EU.

Many thanks
CAR

[Kitty]

The relevant part of the IMmigration Rules for an extension of stay says:

Requirements for an extension of stay on the grounds of United Kingdom ancestry
189. The requirements to be met by a person seeking an extension of stay on the grounds of United Kingdom ancestry are that:

(i) he is able to meet each of the requirements of paragraph 186 (i)-(v); and

(ii) he was admitted to the United Kingdom on the grounds of United Kingdom ancestry in accordance with paragraphs 186 to 188 or has been granted an extension of stay in this capacity.

I would say that this envisages people applying for extensions under UKA where they may have held some other status, as long as they actually entered the UK in the Ancestry category. If you could only extend as UKA if you already had leave in that category, it wouldn't be necessary to refer to both people who had been "admitted" and people who had been "granted an extension", as they would amount to the same thing.

The wording is different from, say, the Tier 1 extension requirements, which require that the applicant "has, or was last granted, leave" in a particular category.

Is there a difference in referring to "admission as [a particular category]" as opposed to having been granted "entry clearance"?

[CAR01]

Thanks Kitty.

I am trying to understand the legal jargon of the rules you posted. From what I can gather, as I originally entered the UK in 2008 on an UKA visa, which I had for over a year, I could apply in country for a UKA extension to stay, even though current visa is spousal, which I have had for less than a year, as my original entry clearance was UKA.

Please advise if this would be correct and if any members would advise using a solicitor to do this.

Also, would I need to explain in full the reason for switching back and would I have to change visas before or after decree absolute.

This is going to be a very expensive exercise.

Many thanks

CAR

[PaperPusher]

http://www.ukba.homeoffice.gov.uk/polic ... les/part5/

I would consider going to a decent solicitor. The problem is if the application is refused you will have no right to appeal because you already have leave as a spouse, and if you are refused you are looking at expensive court cases.

There is nothing in the rules about you having to be divorced.

[CAR01]

Thanks PaperPusher
I would only use a reputable solicitor. The bottom line is that I am trying to do the right and legal thing. I don't understand why I would be refused extension of leave to remain on a UK Ancestry if this is a category I qualify for, have all the paperwork for and have held before when I first entered the UK in 2008.

If the app is refused, where would that leave me in terms of the spousal visa as I would need to inform the Home Office of the change in my circumstances if my husband moves out etc, as required by law and this would be the basis of the visa switch in order to remain legally in the UK within the immigration rules etc.

I am reluctant to remain married for 'technical reasons' in case things do turn sour and creates problems down the line if my husband does not live me.

The divorce question is purely based on the fact that I cannot hold a spousal visa if I am in the process of divorce or divorced from my British husband.

Kind regards
CAR

[PaperPusher]

It is up to the UKBA to cancel your visa, until they do it is valid. However you really should sort out everything ASAP. It could be cancelled by the UKBA at the port returning from holiday or if your husband lets UKBA know you are no longer living together.

By decent, I meant a solicitor who has experience in immigration law.

The internal caseworker guidance says switching is not allowed (which is what you want to do, switch from spouse to UKA, and that valid entry clearance is held, but is your spouse visa that is valid.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

You could be right about going from UKA-spouse-UKA, but I would be prepared for a very expensive fight.

[CAR01]

Thanks. Refer to bullet points below from the link you provided and my understanding is that I could do the switch as UKA was the initial entry clearance I was issued with and entered the UK with.

This page explains that an applicant may not switch into the UK ancestry category, and what this means.
An applicant is not allowed to change from another immigration category into UK ancestry while they are already in the UK. This is known as switching. The applicant must have entry clearance to come to the UK under UK ancestry.
You must not grant leave to enter or an extension (leave to remain) to an applicant under UK ancestry unless they:
• entered the UK holding entry clearance based on UK ancestry, or
• had previously been granted leave to remain based on UK ancestry.

Please correct me if I am not understanding what this says.

My husband is happy to support my application and has not intention of alerting the authorities and is prepared to put this in writing for me. There is not hatred or animosity regarding this split. The alternative would be to just stick it out together (live together still but relatively separate lives) and wait 2/3 years from now until a while after I get BC (april 2012). So then only divorce in 2013/2014 etc.

All advice much appreciated.

[rbk1597]

sticking it out together for the sake of immigration status, and divorcing later, will constitute deception, and might ruin either of you later.

immigration officers are people, they read, reason and understand.
UKA-spouse-UKA is allowed according to the rules (as you indicated above)
Whats necessary is to explain why you are switching back to UKA, and possibly provide evidence of you marriage being broken down AND that you are able to maintain yourself and you child (bank statements and pay slips).
If you are using a solicitor, they should also quote/reference the above paragraph of the rules just to make things clear, because the worst they can do for you is to request that you go back and apply from SA.

This is all straight forward and IF your maintanance funds are ok, I dont see you being denied.

[CAR01]

Hi All,
Just thought I would update everyone on my visa situation.
I contacted a reputable immigration solicitor, my South African visa agent who assisted me originally with my UK Ancestry and UKBA.
UKBA and the immigration solicitor have said the same thing - cannot switch in country and I have to return to South Africa and re-apply there through the BHC and then return. The immigration rule above ONLY applies to people who are currently on UK Ancestry. Explained the whole situation and the financial impact the separation and visa etc will have on myself and my minor daughter and UKBA said that it is not their problem and they cannot use their discretion to bend the rules for me, even though my daughter is in school full time and I work full time (got a job last week and very happy).
My South African visa agent has said that I could challenge the extract from the website in court and has suggested i contact my local MP to assist and send UKBA a detailed letter. Told him that this would basically put me on UKBA's radar and I would be red flagged, which is something I do not wish to do.
So now my husband and I will just have to stick it out for 13 months so I can get PR and BC and then see mid next year where we are at in our relationship and decide what to do from there.

I would just like to thank everyone for their assistance.
Kind regards

C.