Apply to "Settle in UK" with wife - Time in UK question?

[Marvo]

Although Mrs Marvo currently has a 10 yr visit visa, one day (from outside the UK) she will "Apply to join family living permanently in the UK" (me - we have been married for 9 years).

 

The Question I have is... Are there written rules of how much time my wife and I have to stay present in the UK during the (is it 2 yrs or 33 months?), either together or separately?

The reason I ask is that we have businesses both in UK and Thailand and we cannot spend all of our time together in the UK, so does that mean my wife can never get a settlement visa, allowing her to work with me when we visit the UK?

 

The UK Gov Website states that the "family of a settled person visa" - "initial stay will be 33 months, applying as a partner."  Then she has to "apply to settle" as I understand it.

 

https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-8-family-members

Item 287: Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom states:

(a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i) (a) the applicant was admitted to the United Kingdom for a period not exceeding 27 months (?) or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom;
 

Also from guidence notes <<Link:

One of the requirements is that you have to complete 2 years’ leave to enter or remain as the partner of the person named in your application. That period runs from the date on which you entered the UK with a visa in the relevant category.

 

I guess I also need the UK Gov's definition of: "present and settled" in the United Kingdom.

Also I notice the wording "Apply to join family living permanently in the UK".....

 

All help and guidance appreciated, thanks.

 

[7by7]

The requirements you have quoted are for those who made their initial settlement application before the significant rule changes which came into effect in June 2012.  They are still there because some people may not have yet met the requirements for ILR, usually the language requirement, and so have been applying for FLR until they do. This is known as the 2 year route.

 

Your wife will not qualify for this as she will, obviously, be making her initial application after June 2012 and so will be on what is known as the 5 year route; see Immigration Rules Appendix FM: family members; family life with a partner.

 

After living in the UK with her initial visa for 30 months she will be able to apply for Further Leave to Remain. This will be valid for a further 30 months at the end of which she can, assuming all the requirements are met, apply for Indefinite Leave to Remain. If she doesn't yet meet all the requirements she can apply for FLR again.

 

As you are a British citizen you are, for this purpose, counted as being "present and settled in the UK" and "living permanently in the UK" even though you are not actually living here when she makes here initial application; provided you will be moving back to the UK yourself at the same time as your wife, or before.

 

A settlement visa and FLR are not akin to a prison sentence! The holder of each is allowed out of the UK whilst meeting the residential requirement for the next stage (FLR or ILR).

 

There is no set limit on the amount of time allowed out of the UK, everyone's circumstances are different. The decision maker will consider the frequency and duration of each visit as well as the reasons for same.

 

However, when applying for both FLR and ILR your wife will need to show that she is a UK resident, not just a frequent visitor; which may be difficult to do if she has spent more time out of the UK than in.

 

It will be slightly different once she has ILR.

 

Firstly, if an ILR holder spends a continuous period of 2 years or more out of the UK then their ILR will lapse and they will need the appropriate visa to enter the UK again.

 

Furthermore, even if it hasn't lapsed, if UK Border Force officers at her UK port of entry have reason to believe that she is no longer a UK resident but using her ILR for visits they could cancel her ILR on the spot; although she would be allowed in as a visitor on that occasion.

 

Should she decide to become a British citizen once qualified then she will, of course, be able to leave and enter the UK as often and for as long as she wishes.

 

However, there is a fixed maximum amount of time allowed out of the UK whilst qualifying for this. As the spouse of a British citizen she must

• have been in the UK on the exact date three years prior to applying, and
• during the past three years have spent a maximum of 270 days out of the UK with no more than 90 days in the final year.

For more on naturalisation see Become a British citizen; 2. If your spouse is a British citizen.

 

As both the UK and Thailand allow dual nationality, becoming British will not effect her Thai nationality or rights as a Thai citizen in anyway.

 

 

 

[dbrenn]

18 hours ago, 7by7 said:

The requirements you have quoted are for those who made their initial settlement application before the significant rule changes which came into effect in June 2012.  They are still there because some people may not have yet met the requirements for ILR, usually the language requirement, and so have been applying for FLR until they do. This is known as the 2 year route.

 

Your wife will not qualify for this as she will, obviously, be making her initial application after June 2012 and so will be on what is known as the 5 year route; see Immigration Rules Appendix FM: family members; family life with a partner.

 

After living in the UK with her initial visa for 30 months she will be able to apply for Further Leave to Remain. This will be valid for a further 30 months at the end of which she can, assuming all the requirements are met, apply for Indefinite Leave to Remain. If she doesn't yet meet all the requirements she can apply for FLR again.

 

As you are a British citizen you are, for this purpose, counted as being "present and settled in the UK" and "living permanently in the UK" even though you are not actually living here when she makes here initial application; provided you will be moving back to the UK yourself at the same time as your wife, or before.

 

A settlement visa and FLR are not akin to a prison sentence! The holder of each is allowed out of the UK whilst meeting the residential requirement for the next stage (FLR or ILR).

 

There is no set limit on the amount of time allowed out of the UK, everyone's circumstances are different. The decision maker will consider the frequency and duration of each visit as well as the reasons for same.

 

However, when applying for both FLR and ILR your wife will need to show that she is a UK resident, not just a frequent visitor; which may be difficult to do if she has spent more time out of the UK than in.

 

It will be slightly different once she has ILR.

 

Firstly, if an ILR holder spends a continuous period of 2 years or more out of the UK then their ILR will lapse and they will need the appropriate visa to enter the UK again.

 

Furthermore, even if it hasn't lapsed, if UK Border Force officers at her UK port of entry have reason to believe that she is no longer a UK resident but using her ILR for visits they could cancel her ILR on the spot; although she would be allowed in as a visitor on that occasion.

 

Should she decide to become a British citizen once qualified then she will, of course, be able to leave and enter the UK as often and for as long as she wishes.

 

However, there is a fixed maximum amount of time allowed out of the UK whilst qualifying for this. As the spouse of a British citizen she must

• have been in the UK on the exact date three years prior to applying, and
• during the past three years have spent a maximum of 270 days out of the UK with no more than 90 days in the final year.

For more on naturalisation see Become a British citizen; 2. If your spouse is a British citizen.

 

As both the UK and Thailand allow dual nationality, becoming British will not effect her Thai nationality or rights as a Thai citizen in anyway.

 

 

 

 

Very comprehensive answer.

 

A related question: is there any time limit for an initial first entry to the UK after the settlement visa is first granted? Australia, for example, imposes a time limit by which an initial entry must be made.

 

[7by7]

6 hours ago, dbrenn said:

A related question: is there any time limit for an initial first entry to the UK after the settlement visa is first granted? Australia, for example, imposes a time limit by which an initial entry must be made.

 

 

Two issues here.

 

Firstly, although the period of leave granted is 33 months, the actual visa vignette will only be valid for 30 days. During that time the holder travels to the UK and then obtains their Biometric Residence Permit.

 

If they do not enter the UK within that 30 days then they can extend it. I can't find the UKVI page on this, but if memory serves it costs £150, payable, like the visa fee itself, in USD.

 

Secondly, as said the initial period of leave is 33 months. After 30 months in the UK one applies for FLR and 30 months after that for ILR.

 

However, if one delays travelling to the UK for more than 3 months then their leave will expire before they have lived in the UK for 30 months. They should still apply for FLR when the initial visa expires, but as that will be valid for 30 months it will expire before they have lived in the UK for the 5 years required to qualify for ILR; so they will need to make, and pay for, a second FLR application to make up the missing time.

 

Of course, if one doesn't use the visa within it's 33 months validity then it will expire and so if they still wish to settle in the UK they will have to start the whole process all over again.

 

Hope that's clear.

 

 

[Marvo]

Great info 7by7, you've clarified a lot for me!!!

 

Thanks so much for taking the time to put that together.

I had it in my mind from info I heard a few years ago that in the first 2 years we had to be in the UK for 21 out of 24 months. Looks like things have moved on recently

Now I have found: 

E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.
 

 

[7by7]

21 minutes ago, Marvo said:

Now I have found: 

E-LTRP.1.10. The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.
 

 

Indeed.

 

"Note 11" in the section "your relationship" in "Part 13 Documents" of the FLR form and "Note 8" of "Section 12 Documents" of the ILR form give more details of the evidence of cohabitation required for each.

 

I should point out that all the information I have given is, to the best of my knowledge, correct at present. However as you are looking some time into the future there is no guarantee, of course, that the rules, requirements etc. wont have changed. So check again when the time actually comes.

[dbrenn]

36 minutes ago, 7by7 said:

 

Two issues here.

 

Firstly, although the period of leave granted is 33 months, the actual visa vignette will only be valid for 30 days. During that time the holder travels to the UK and then obtains their Biometric Residence Permit.

 

If they do not enter the UK within that 30 days then they can extend it. I can't find the UKVI page on this, but if memory serves it costs £150, payable, like the visa fee itself, in USD.

 

Secondly, as said the initial period of leave is 33 months. After 30 months in the UK one applies for FLR and 30 months after that for ILR.

 

However, if one delays travelling to the UK for more than 3 months then their leave will expire before they have lived in the UK for 30 months. They should still apply for FLR when the initial visa expires, but as that will be valid for 30 months it will expire before they have lived in the UK for the 5 years required to qualify for ILR; so they will need to make, and pay for, a second FLR application to make up the missing time.

 

Of course, if one doesn't use the visa within it's 33 months validity then it will expire and so if they still wish to settle in the UK they will have to start the whole process all over again.

 

Hope that's clear.

 

 

 

Thank you