holiday entitlement on a settlement visa

[wasas]

Hi all, I need two questions answered please.

1st is my wife only allowed up to 90 days holiday out of the uk on her 2year 3 month settlement visa.

2nd my wifes visa was from 20/06/2012, but she didnt come to the uk untill 22/07/2012. does this go against her for her 90 days out of the country?

Thanks

[durhamboy]

1. I don't think there is a limit on the number of days out of UK for a wife on a settlement visa. I think that she has to demonstrate that she is settled in the UK e.g. maintain a house and lives in it when not abroad. If she spent +180 days a year outside the UK then that might be deemed to be a loss of settlement rights. Having said all that, for citizenship she must have been in the UK for 270 days of the last 365 days before the citizenship application.

2. No. I think she gets 3 months to use the visa anyway i.e. to take care of things in Thailand.

[7by7]

Durhamboy is essentially correct.

There is no formal limit on the time allowed out of the UK whilst qualifying for Indefinite Leave to Remain. Each case is treated on it's own merits; taking into account factors such as the total length of absence and the reasons for same. Annual holidays of up to a month should not be any problem.

However, when applying for ILR she will need to show that the UK is her primary residence; difficult to do if she has spent more time out of it than in!

Her initial visa is valid for 27 months, but she only needs to have lived in the UK for 24 months to be time qualified for ILR. The extra 3 months is to allow people to settle their affairs in their homeland and move to the UK.

She arrived in the UK on 22/7/12, so that is when the clock started. Her 24 months will be up on 21/7/14. She can apply for ILR at any time between 28 days before this date and the day her visa expires (19/9/14 if my calculation is correct).

The '90 day rule' is for British citizenship applications.

Assuming you are British, then to meet the residential qualification for naturalisation as British she must have been legally present in the UK on the exact date three years prior to applying and during the past three years have spent no more than 270 days outside the UK with no more than 90 days in the final year.

Although absences of 300 days in total and/or 100 days in the final year will normally be disregarded, and longer periods are allowed in certain circumstances.

[BIGJIMMY]

I thought on a marriage settlement you first get a 33 month visa of which you have to be in the UK for 30 months then you get a further 30 months of which you can spend no more than 270 days, 90 in the last year out of the UK to get the ILR??

Thanks

Jimmy

Sent from my iPhone using ThaiVisa app

[durhamboy]

I thought on a marriage settlement you first get a 33 month visa of which you have to be in the UK for 30 months then you get a further 30 months of which you can spend no more than 270 days, 90 in the last year out of the UK to get the ILR??

Thanks

Jimmy

Sent from my iPhone using ThaiVisa app

You can still go out of the UK for holidays etc. during your initial 33 months visa. As said, there is no fixed limit on this.

[7by7]

Indeed.

Bigjimmy, you are getting confused with the residential requirements for naturalisation as British if the spouse or civil partner of a British citizen (see my post above for these).

The OP's wife applied before the changes to the settlement rules; so she was given a 27 month visa and can apply for ILR after living in the UK for 24 months.

Under the new rules, effective for all settlement applications made on or after 9/7/12, the initial visa is valid for 33 months and the holder can apply for FLR after living in the UK for 30 months.

This FLR is valid for 30 months and the holder can apply for ILR when it expires (actually 28 days before that date).

Making a total residential requirement for ILR of 5 years.

As before, there is no fixed limit on time allowed outside the UK during this 5 year period.

[TCA]

Under the new rules, effective for all settlement applications made on or after 9/7/12, the initial visa is valid for 33 months and the holder can apply for FLR after living in the UK for 30 months.

This FLR is valid for 30 months and the holder can apply for ILR when it expires (actually 28 days before that date).

Making a total residential requirement for ILR of 5 years.

As before, there is no fixed limit on time allowed outside the UK during this 5 year period.

I get it all up until your last point 7by7. In order to qualify for FLR, the visa holder needs 30 months of time spent in the UK. If the initial visa is valid for 33 months, then that implies to me that the applicant has effectively 3 months of that visa to work with, for either getting their affairs in order before leaving Thailand and/or for trips back to Thailand, in order to make the 30 months for FLR.

Assuming said person makes use of these 3 months (outside of the UK) and applies successfully for FLR based on their 30 months in the UK, then in order to make the 5 years/60 months requirement for ILR, then wouldn't they have to stay in the UK for the full 30 months of FLR?

Put simply, the initial visa and FLR visa extension combined, run to a maximum of 63 months, so to qualify for ILR with 5 years/60 months in the UK, means 3 months maximum to play with?

What am I missing?

[BIGJIMMY]

Thanks for the replies, 7x7 your post completely answered my question.

Jimmy

Sent from my iPhone using ThaiVisa app

[BIGJIMMY]

Under the new rules, effective for all settlement applications made on or after 9/7/12, the initial visa is valid for 33 months and the holder can apply for FLR after living in the UK for 30 months.

This FLR is valid for 30 months and the holder can apply for ILR when it expires (actually 28 days before that date).

Making a total residential requirement for ILR of 5 years.

As before, there is no fixed limit on time allowed outside the UK during this 5 year period.

I get it all up until your last point 7by7. In order to qualify for FLR, the visa holder needs 30 months of time spent in the UK. If the initial visa is valid for 33 months, then that implies to me that the applicant has effectively 3 months of that visa to work with, for either getting their affairs in order before leaving Thailand and/or for trips back to Thailand, in order to make the 30 months for FLR.

Assuming said person makes use of these 3 months (outside of the UK) and applies successfully for FLR based on their 30 months in the UK, then in order to make the 5 years/60 months requirement for ILR, then wouldn't they have to stay in the UK for the full 30 months of FLR?

Put simply, the initial visa and FLR visa extension combined, run to a maximum of 63 months, so to qualify for ILR with 5 years/60 months in the UK, means 3 months maximum to play with?

What am I missing?

I think it's time based in the UK, not actually physically spent in the UK, the time spent in the UK applies for the last 3 years of the 5 year path if your going for naturalisation.

Hark at me the expert now!!

Jimmy

Sent from my iPhone using ThaiVisa app

Edited June 4, 2014 by BIGJIMMY

[durhamboy]

Yes Bigjimmy I think that is correct.

[7by7]

Indeed.

Due to the variations in processing times applicants do not know the exact date their visa will be issued and be valid from.

Unless they asked for a specific start date; and even then there is no guarantee the visa will start on that date; it will start on the requested date or the date of issue, whichever is the later.

Therefore, the initial visa is valid for 33 months to allow time for people to settle their affairs and move to the UK and still meet the 30 months residence required for FLR. This 30 months begins on the day they first enter the UK with their settlement visa.

The qualifying periods, 30 months for FLR then a further 30 months for ILR, are periods of residence; i.e. the time the applicant must have been a UK resident.

They are not the minimum time the applicant must have been physically present in the UK.

[TCA]

Thanks to BIGJIMMY, durhamboy and 7by7 for the above replies. I get it now. Too many years of day and date counting for myself with Thai visas I think!

So assuming that FLR is granted for 30 months from the expiry date of the initial 33 months, then for ILR it's basically 5 years residence required from initial date of entry to the UK, assuming no lengthy absences that would indicate non-UK residence.

[7by7]

Not quite. The minimum residency period for ILR is 5 years; 30 months with the initial visa then 30 months.

You don't have to wait until the initial 33 month visa expires before applying for FLR; you can do so once you have been resident for 30 months.

Lengthy absences during the residential qualifying period may be allowed; depending on the reason.

For example accompanying the British spouse while they are posted abroad.

Though if actually outside the UK when either the initial visa or FLR expires then the appropriate visa will need to be obtained to enter the UK again.

Worth mentioning, also, that once someone has ILR , it will lapse if they spend a continuous period of 2 years or more outside the UK. In which case the appropriate visa will be needed to enter the UK again.

In addition, if it becomes apparent to immigration at a port of entry that an ILR holder is actually living outside the UK and only using their ILR for visits, then it will be cancelled on the spot. Though the holder will be allowed in as a visitor on that one occasion.

British citizenship, once granted, cannot lapse; no matter how long the holder spends out of the UK.

Hope that covers all the bases without being too complicated!

[TCA]

Not quite. The minimum residency period for ILR is 5 years; 30 months with the initial visa then 30 months.

You don't have to wait until the initial 33 month visa expires before applying for FLR; you can do so once you have been resident for 30 months.

I wasn't saying you'd have to wait for the 33 months to expire before applying for FLR, but I was assuming that the 30 months FLR would be tagged on to the expiry date of the initial visa. But either way, the earliest you could apply for ILR would still be 60 months after you set foot in the UK for the first time. Or am I still not getting it?

[7by7]

The 30 months FLR begins on the date it's applied for.

Which can be anytime between 28 days before the date 30 months after the applicant first entered the UK with their initial visa and the expiry date of that visa.

ILR can also be applied for at anytime between 28 days before the expiry date of one's FLR and the actual expiry date.

So, even though the qualifying period for ILR is a total of 5 years, depending on when they first arrived in the UK, when they applied for FLR and when they apply for ILR, the total time actually spent living in the UK before applying for ILR can effectively vary between 58 months and 63.

Edited June 6, 2014 by 7by7

[TCA]

So, even though the qualifying period for ILR is a total of 5 years, depending on when they first arrived in the UK, when they applied for FLR and when they apply for ILR, the total time actually spent living in the UK before applying for ILR can effectively vary between 58 months and 63.

LOL. Now I get it. Thanks for taking the time to explain. I'm pretty sure it would have taken me several hours to work that out from the government website!

[SPIKECM]

My wife just got the 33 months initial settlement visa last February, but by the time we had ourselves organised with our kids, she never came here until 6 months into her 33 month visa (June). It seems then that we might have some problem when we come to apply for the 33 month extension. Is this the case? Thanks

Edited July 30, 2015 by SPIKECM

[durhamboy]

My wife just got the 33 months initial settlement visa last February, but by the time we had ourselves organised with our kids, she never came here until 6 months into her 33 month visa (June). It seems then that we might have some problem when we come to apply for the 33 month extension. Is this the case? Thanks

Hi Spike,

I think that as she came here in June and the visa was issued in Feb then she came here 4 months after the visa was issued not 6. This might make a difference.

The problem you may have is that she might have to apply for FLR (Further Leave to Remain) twice instead of once before being elible for ILR (Indefinite Leave to Remain). Thereby costing you an additional £1100 at today's prices.

As she must be on the "5 year route" the normal procedure is :-

1. Issue of initial 33 month visa.

2. After 30 months in the UK apply for FLR which grants a further 30 months visa.

3. When FLR expires she will have been here 5 years so she can apply for ILR - provided she has passed LITUK and B1 English.

So as your wife's case seems to suggest she has a 1 month gap then I think she would be ok because there are some periods of grace built into the system - please see a topic I started yesterday about this very procedure.

[7by7]

She may have got away with it if she had first entered the UK 4 months after her initial visa started by applying for FLR 28 days before it expires; but not 6.

Her initial visa must be valid when she applies for FLR, the latest date being the day it actually expires.

On the day her initial visa expires she will only have been resident in the UK for 27 months so must apply for FLR then or be in the UK illegally (her visa will be automatically extended until the FLR decision has been made).

That FLR will be valid for 30 months, so will expire after she has lived in the UK for 57 months.

She needs to have been a UK resident for at least 60 months to be time qualified for ILR, so will be 3 months short.

To cover that gap she will need to make, and pay for, another FLR application.

That second FLR will also be valid for 30 months, so she can apply for ILR anytime between the fifth anniversary of her first entry as a resident (actually 28 days before this) and the expiry of that second FLR.

[BIGJIMMY]

We will be applying for a settlement visa for Mrs E in September, I've read now that although you can still post date the visa for up to 3 months, when the visa starts then you have 30 days to use it, this can be extended at a cost, so my query is, you don't have a 33 month visa anymore in which you'd get a 3 month window before it started???? so is a settlement visa now only for 30 months?????

Hope that makes sense, thanks.

Jimmy

[SPIKECM]

.........bit of a time gap after the last post, but things aren't going smoothly here 6 months or so into our "settlement". Basically, we can't do the 60 months ... just too long to stick it in the UK after too many years away. Even if my wife did get ILR, and we then left the UK, they can take that away from her at any time they believed that she was not settled here. So, we think we'll give up on the idea to stay here for 5 years and instead move away before we get the chance to apply for ILR. The thing is, what next? I guess we would just apply for a 10 year tourist visa. Trouble with that is that she will have income from a business here after we leave and be paying taxes, so maybe it would have to be a business visa? Thanks

[bobrussell]

.........bit of a time gap after the last post, but things aren't going smoothly here 6 months or so into our "settlement". Basically, we can't do the 60 months ... just too long to stick it in the UK after too many years away. Even if my wife did get ILR, and we then left the UK, they can take that away from her at any time they believed that she was not settled here. So, we think we'll give up on the idea to stay here for 5 years and instead move away before we get the chance to apply for ILR. The thing is, what next? I guess we would just apply for a 10 year tourist visa. Trouble with that is that she will have income from a business here after we leave and be paying taxes, so maybe it would have to be a business visa? Thanks

ILR will officially lapse if the holder remains outside the UK for a period of over two years. Travel back and forth is not that much of an issue. The problems really start when applying for naturalisation when the calculator and calender come out!

They do need to have a good reason to withdraw a residence visa and there are plenty of holders that split lives between the UK and their home country. Nomadic lives are not that rare nowadays and UKVI have to accept that!

Visit visas are fine for travelling back and forth for shortish periods but the expectation is that the stay in the UK should not exceed six months in any year. Should there be very good reasons for being here for longer these may be expected. Having a UK business may not be enough and a settlement visa might be required.

The choice really does depend on your travel plans. Don't forget that if an application is made for a longer term visa but a shorter one granted, there will be no refund of the difference! Applying for a ten year visit visa and being granted six months will hit the pocket hard!

[7by7]

I'm sorry to hear that life in the UK has not worked out for you.

Though if you could 'stick it out' until she not only had ILR but also British citizenship then she would, like any other British citizen, be able to come and go as often and as long for she wished.

As the spouse of a British citizen she can apply for British citizenship as soon as she has ILR. Provided she meets all the other requirements, of course.

If that is not possible or desirable for you to live in the UK for that long (more than 5 years, but less than 6) then she may still be able to use her current visa to enter the UK until it expires. After that she will need the appropriate visa to enter the UK.

A standard visit visa will allow her to undertake some business related activities; but for most work related activities she would need the appropriate work visa.