Applied For Ile But Only Got Spouse Visa

[Skypist]

Today just collected my wife's passport and it says she's got a 3 year Spouse visa. On the application form I specified I was applying for an Indefinite Leave to Enter visa, which will shorten the process to British Passport and also negate the cost in applying for an ILR in UK at a later date. Supporting documents proved that marriage has been over 4 years and living in Thailand for over 4 years (proof being apartment contracts and my/her passport arrival/dep stamps).

I wonder if this was missed by the Embassy or maybe just not enough proof to get the ILE. Got two main questions now..

1. Do you think I should appeal this decision? How to do it and will it cost more?

2. Spouse visa says "no recourse to public funds" so that means she cannot be included in any application for child tax credits etc, whereas ILE (I think) DOES have recourse? What are the other differences between the two types of visa....NI numbers, work possible, driving license, bank account etc.?

[bangkockney]

I assume you did not submit a KOL (Knowledge of Life) test certificate with your application? I think this is why your wife has been given a spouse visa, not ILE.

However, the Embassy should have issued ILE with KOL required once in UK endorsement.

It may be easier if you have the time, to ask the issuing consulate to amend it.

Edited October 12, 2010 by bangkockney

[Skypist]

I assume you did not submit a KOL (Knowledge of Life) test certificate with your application? I think this is why your wife has been given a spouse visa, not ILE.

However, the Embassy should have issued ILE with KOL required once in UK endorsement.

It may be easier if you have the time, to ask the issuing consulate to amend it.

That's right, no KOL cert (that will be done once in UK). So instead of going through the Visa Section on Rajadamri again, I'd best take it to the Embassy for possible amendment?

[7by7]

What does the endorsement on the visa actually say.

If she has been granted ILE subject to KOL then it should say "SETTLEMENT SPOUSE (KOL REQ)"

If so, then once she is in the UK and has satisfied KOL she can then apply immediately for ILR without having to satisfy the 2 years residency requirement. Unfortunately she will have to pay the ILR fee.

If it says "SPOUSE" then she has been issued the wrong entry clearance. This has happened to people in your wife's position before in Bangkok, but they have found it simpler to sort things out with the UKBA once in the UK rather than with the entry clearance section in Bangkok. Not sorting it out wont effect her status in the UK, except that she will be unable to apply for ILR until she has satisfied KOL and been living in the UK for 24 months. As the fee for ILR regularly increases above inflation, it would be worth doing so, though.

She will not be able to claim any public funds until she has satisfied KOL and has ILR. However, you can claim any benefits to which you may be entitled, including child benefit, yourself and although she cannot claim tax credits alone, as claims by couples have to be made jointly she can, indeed must, be included in any tax credit claim you may make.

Whether she has the right visa or not, both allow her to work, receive NHS treatment, open a bank account, apply for a driving licence etc.

You say that her visa is valid for 3 years. A spouse visa would be valid for 27 months. The 'expiry' date for applicants who qualify for ILE should represent the expiry date of the applicant's passport and does not indicate an expiry of 'indefinite leave to enter'. It is actually the date by which they should first use the visa to enter the UK.

ILE is not a short cut to British citizenship. To be time qualified for naturalisation as British the spouse or partner of a British citizen needs to have been resident in the UK for at least three years. The type of entry clearance they first entered the UK with is irrelevant.

[Skypist]

Thank you for the comprehensive reply. The visa states "visa spouse/cp" and has no mention of KOL. But you're right, it is for 27 months. It also states there are no dependants although we have one child (however he does already have a British passport).

I gather from what you say there is little point in trying to get the visa changed to ILE apart from the fact that a) she'd be able to get ILR quicker before price increases, and b ) that she'd then be able to be included in any benefit entitlement.

So, whichever way we do it there is no shortcut - 3 years residency for passport and that's it. Any other benefits of getting this changed to ILE? I have time so could at least try getting it changed in Bangkok if necessary.

[Desertexile]

Skpist - how long did your Mrs wait for the visa application to be granted?

Cheers

[Eff1n2ret]

Guidance to ECOs says this:

ECB19.1 When an endorsement is required

There will be occasions when an applicant has reason to believe, usually after arrival in the UK, that their visa has not been issued with the correct endorsement. When Post has been contacted by a member of the public or their representative, and is satisfied that the endorsement is incorrect the following action should be taken:

Write a letter to the individual (see ECB19.5 below)

• confirming that Post made a mistake when issuing the visa,

• apologising for any inconvenience, and

• giving details of what the correct endorsement should be.

ECB19.2 An incorrect endorsement (not Tiers 1, 2 or 5 under PBS)

Advise the individual to send this letter to RCU EC Errors, together with the applicant's passport and 2 passport-sized photos, (for those entering under the Points Based System - PBS - except tier 4, see section below) who can correct the visa free of charge;

RCU EC Errors

15th Floor Apollo House

36 Wellesley Road

Croydon

CR9 3RR

The General Enquiry contact number for UK Border Agency is: 0870 606 7766

The inference is that the process is started by the applicant contacting the Embassy in the first instance. If the OP and his missis are still in Thailand, it would seem sensible to try and sort it out before they go, otherwise they could try their luck in the UK with the RCU address above.

[7by7]

It also states there are no dependants although we have one child (however he does already have a British passport).

This means that there are no dependents included in the visa, obviously not as your child has a British passport so does not need entry clearance for the UK.

I gather from what you say there is little point in trying to get the visa changed to ILE apart from the fact that a) she'd be able to get ILR quicker before price increases, and (b ) that she'd then be able to be included in any benefit entitlement

In my opinion, no; but the earlier she can apply for ILR the better as the saving on her ILR fee could be considerable, based on the way both this and the previous government have increased fees, so I think it's worth doing.

So, whichever way we do it there is no shortcut - 3 years residency for passport and that's it

Indeed, see Requirements for naturalisation if you are married to or the civil partner of a British citizen.

Any other benefits of getting this changed to ILE?

None that I'm aware of.

[Skypist]

UPDATE:

Went to British Embassy today and had to use the outside phone to call an ECO. Didn't have a good enough reason to actually get in it seems! The Gurkha seems like a nice chap, but I wish they'd make him take English lessons.

Anyway, I explained that my wife may have been issued with the wrong visa given the 4+ years of marriage outside of the UK, and that I'd like to know if it's possible to alter it to an ILE. The Thai ECO knew what an ILE is, but said Bangkok does NOT ISSUE these visas, and that the Spouse is the only one and the correct one. She said we would have to apply for an ILR just before the Spouse visa expires at the Home Office in the UK. Despite me reiterating the 4 year+ criteria she just repeated that we'd have to wait (maybe she was unaware of this rule).

So it does seem as though an ILE is now impossible to get from Bangkok, but I just hope that the Home Office will issue something to enable us to apply for ILR straight away, without the 2 year probation.

[Rayongy]

You have had a communication issue!!! My wife was issued ILE last week having already passed life in UK test on a previous visit.

[Skypist]

You have had a communication issue!!! My wife was issued ILE last week having already passed life in UK test on a previous visit.

So this is basically the old issue of not all ECOs knowing the rules. Hard to reason with them over a phone too.

[ThaiVisaExpress]

I would fax them the rules and follow it up with an email .

[Skypist]

I would fax them the rules and follow it up with an email .

I have emailed the VFS office about this, who have passed the email on to UKBA (with a possible 30 day reply time!). ThaiVisaExpress, if you have a link to this 4+ year rule to get an ILE could you give it to me? I couldn't find it on UKBA website. I will then go again direct to the Embassy quoting the rule.

Thanks

[7by7]

The relevant parts of the Immigration Rules are Paras 281 to 282; especially Paras 281(i)(b )(i), 281(i)(b )(ii) and 282( c).

You may also like to refer them to the Entry Clearance Guidance, Para SET3.23 What immigration conditions apply upon entry to a spouse applicant?

The applicant will normally be admitted for an initial period of 27 months.

After satisfactory completion of this period, indefinite leave to remain (ILR) may be granted on application to the UK Border Agency.

However, where an applicant:

• has been married to the sponsor for at least four years and they have been living together outside the UK during that time; 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); and
• the sponsor has a right of abode/indefinite leave to enter; then Indefinite Leave to Enter (ILE) may be granted.

Where an applicant has satisfied all of the requirements for ILE, except the KOL requirement, the applicant should be granted 27 months leave to enter. During this time they can, at any point, satisfy the KOL requirement and then apply for indefinite leave to remain (ILR) in the UK.

(My emphasis)

and then refer them to Leave to enter endorsement and list of conditions required with each code

Type of visa; Settlement spouse/CP for 4 years but need KOL

Category; D

Endorsement; SETTLEMENT SPOUSE/CP (KOL REQ)

Code; 1N

Duration 27 months

Add endorsement field; Add initial and surname of spouse/CP

ECG chapter; 13

Hope this helps.

[Rayongy]

Its an administrative error Skpist , so perhaps its best to start rattling their cage from the safety of the UK. I friend did the same a few month ago but in Thailand, the visa was cancelled and re-granted in its correct format a month later. Slowed him down. He could have done it easily from the UK.

They dont like being proven wrong in the BKK office!

[Skypist]

Update:

Thanks to 7by7's message above providing the exact rules, I emailed VFS again saying no need to wait for UKBA's reply because the rules are here. Within 4 working days I had a call from the Embassy themselves to make an appointment to amend the visa in the passport.

The previous visa got cancelled and the new one reads "visa settlement spouse/CP (KOL reqd)". Apparently no need for it to say ILE. Hope that's correct! This was done in 20 mins. No resubmission of proof documents needed.

I have a feeling without quoting the rules this would have taken a lot longer to get done, and I nearly waited to do it once within the UK. Thanks to all above for their help in getting quick action to correct an incorrectly administered visa.

[7by7]

I guess all's well that ends well, but it's a shame that you had to explain their own rules to them before they would admit that they had made a mistake and correct it!

The new endorsement is the correct one.

[quadisking]

I'm glad this thread was started because my wife's visa has just arrived, and we've had the same problem with getting the wrong stamp in her passport, so I know what to do now to get it sorted. Thanks very much, I would have had no idea about the rules and how to resolve these problems without your expert help.

[Phil_ne_uk]

Sorry to resurrect this thread but my partner had a similar issue regarding having to wait 2 years before being able to apply for ILR.

I queried it and was given the following reply which confirms that after passing the life in the Uk test ILR can be applied for straight away.

The full thread can be read here

Dear Mr xxx

Thank you for your enquiry.

Indefinite Leave to Enter is no longer granted due to the introduction of the Life in the UK test. Instead those who have been living abroad in a relationship akin to marriage are granted two years Leave to Enter in order for the applicant to complete the Life in the UK test. Once the test has been successfully completed the applicant is able to apply for Indefinite Leave to Remain using the SET(M) application form, this can be done at any time during the two years. The applicant does not have to wait until they have completed 23 months in the UK.

Yours sincerely,

Immigration Group

UK Border Agency