Need help to clarify 180+ days on ILR

[yorkieb]

Hi All

Would appreciate advice on an ILR issue, Thanks in advance.

My wife has obtained an ILR, issue date 05/10/2012. We are careful for he not to exceed 180 days out of the UK with a calendar year.

However in 2013 she returned to Thailand on 1/7/13 and did not return until 8/1/14 therefore 192 days in total, 184 days in 2013. The reason for her delayed return was her mother passed away at the end of december and she stayed for the funeral.

If the absolute rule is 180 in a calender year she has fallen foul by 4 days?

If the absolute rule is 180 in 12 consecutive months she has fallen foul by 192 days?

She successfully entered the UK on 8/1/14.

Her next visit to Thailand was on 30/3/15, returning 41 days later on 11/5/15. The gap between the two visits is greater than 1 year and greater than 12 consecutive months which should reset her allowance.

Which brings me to my 3 questions.

1) we are planning her next trip October 2015 - Jan 2016. If the absolute rule is not to exceed 180 days in a calendar year then she has 139 days left this year which she can not exceed as there are only 92 days in Oct - Dec. However if it is 12 consecutive months then the latest return date would be 16 Feb 2016.

2)She has reentered successfully twice now with no flags raised at entry. Should we be worried on future occasions and are there any issues going forwards (we plan to apply for a UK passport in the next couple of years 3/4 into her ILR.

3) Is her ILR invalid now and is she technically her illegally?

[bobrussell]

ILR generally lapses after an absence of 2 years from the UK. I might be misreading this but it sounds as if the absences are nothing like this! There is nothing to 'reset'!

ILR is designed for those who are normally resident in the UK and holders are free of immigration controls on entry to the UK. However prolonged absences may have significant impact if your wife wishes to apply for naturalisation.

[yorkieb]

Thank you for your reply Bob, that's a relief.

[wooloomooloo]

2)She has reentered successfully twice now with no flags raised at entry. Should we be worried on future occasions and are there any issues going forwards (we plan to apply for a UK passport in the next couple of years 3/4 into her ILR.

The eligibility requirements for applying for citizenship are very clear and specific in this regard:

• lived in the UK for at least the 3 years before your application is received
• spent no more than 270 days outside the UK in those 3 years
• spent no more than 90 days outside the UK in the last 12 months

It goes without saying that if your wife doesn't meet the above criteria at present then she'll have to wait on until such time as she does, which wouldn't be long, anyway.

Bob has already confirmed that your wife isn't here illegally so she's good on that front. And, if she were here illegally then she'd sure know about it by now, if you get my drift.

Edited September 8, 2015 by wooloomooloo

[fbf]

Just to add references to the above good advice..

This page confirms that the ILR only lapses after 2 years continuous absence (and then goes on to explain how to apply for a Returning Resident visa, which gives indefinite leave to remain once more):

https://www.gov.uk/returning-resident-visa

This page confirms the requirements for becoming a British citizen if your spouse is also a British citizen:

https://www.gov.uk/becoming-a-british-citizen/if-your-spouse-is-a-british-citizen

Edited September 8, 2015 by fbf

[7by7]

Note that an ILR holder who has been away from the UK for a continuous period of two years or more will not be eligible for a returning residents visa unless they can show that there are exceptional circumstances that have kept them away from the UK for that long (see link provided by fbf above).

If they can't, then they will have to start the whole settlement process, initial visa, FLR then ILR, all over again.

Also, even if away for less than 2 years, if it becomes apparent to immigration on entering the UK that the holder does actually live abroad and is just using their ILR for regular visits then their ILR could be cancelled; although they would be allowed in as a visitor on that occasion.

None of which applies to the OP's wife, though.