Residency Requirements for ILR (currently living in the US)

[iamsuperbritish]

Hello,

I am a born British Citizen and I have recently got my wife her first spousal visa with a 33 months validity on it. Now I have also gained my US Green Card via herself as she is American. We are currently in living in the US together and plan to do so till I have got me American citizenship in 3-4 years. However, she is still on the 33 months spouse visa for the UK. We plan to come to the UK every 3 or 4 months, and we are here right now.

Once her 33 months is up, we would need to apply for a 27 months extension which totals it to 5 years or 60 months. Out of the 5 years, how long can she stay out of the country without jeopardising her eligibility to get ILR? Is there any other way without worrying about residency times?

Also, how many times can she extend her spouse visa?

Thank you in advance.

[CR001]

Unlikely she will qualify for an extension if she is not residing in the UK with you and the same will apply to ILR.

Both applications require residency, not visits and you also have to meet the financial requirement with evidence of work in the UK.

[Casa]

Your wife would also fail to submit evidence of co-habitation in the UK without documented proof throughout the full 2.5 year qualifying period which is mandatory for FLR(M).

Neither would you as your wife's sponsor be able to show UK income of £18,600 p.a.

It appears that you submitted a spouse settlement visa without the foresight that you and your wife didn't intend to settle.

When you eventually decide to re-locate to the UK in a few years time, your wife will be starting the whole application process over again.

[iamsuperbritish]

Doesn't income made by myself in the US count as my earned income? I earn triple the threshold at the moment and all accounted for via statements, IRS etc.

Also, me being British but working abroad should count for something, shouldn't it? I am curious to why this would not work.

[iamsuperbritish]

I did intend to settle, in fact, I went as far as financing a car for 4 years and having it ready for her when she came, but then it went into appeals for nothing and I couldn't wait longer so I thought F this I am off to the US. I paid a hefty fine to return the car and I was a tenant at Dad's house so that was good. Then when I got the US exactly 21 days later, I get an email saying the decision has been overturned. So who knew. Also, by that time I have posted up, leased ana apartment, bought new furniture etc.

I do have a strong link in the UK however, I have bank accounts, with incomings/outgoings, bills in my name and now her's too. She's got a bank account here too with incomings/outgoings.

It appears that you submitted a spouse settlement visa without the foresight that you and your wife didn't intend to settle.

[Casa]

It doesn't work, as in order to apply to either extend her stay or apply for permanent residence (ILR) your wife has to be residing in the UK together with you as her sponsor.

Living in another country and applying UK permanent residence (ILR) won't cut it with the UKVI. I'm sure there must be similar conditions for you to qualify for your Green Card in the US

[CR001]

A spouse visa and extension requires residency and evident that you, the sponsor, is settled in the UK. The same applies for ILR.

You cannot expect partner to qualify for ILR when there is no residence in the UK at all. It doesn't work like that unfortunately.

Any absence from the UK, while a resident, should be limited and for good reason and need to be declared.

You need to provide income and address proof documentation in the UK for extensions and ILR.

Why was the visa refused then if you went to appeal?

[Casa]

If the spouse settlement visa was granted after an appeal, did your wife ever enter the UK on a spouse settlement visa? If not, how long ago was your wife's visa issued?

[iamsuperbritish]

A spouse visa and extension requires residency and evident that you, the sponsor, is settled in the UK. The same applies for ILR.

You cannot expect partner to qualify for ILR when there is no residence in the UK at all. It doesn't work like that unfortunately.

Any absence from the UK, while a resident, should be limited and for good reason and need to be declared.

You need to provide income and address proof documentation in the UK for extensions and ILR.

Why was the visa refused then if you went to appeal?

The visa was refused as they said I didn't provide enough evidence to your relationship - however, I sent over 7 years of pics, emails, instagram pics, facebook profiles, texts, whatsapp messages and flights tickets, hotel bookings together and even joint holder credit card statements etc (from the US). They still refused it - then it got overturned no questions asked.

[iamsuperbritish]

If the spouse settlement visa was granted after an appeal, did your wife ever enter the UK on a spouse settlement visa? If not, how long ago was your wife's visa issued?

Yeah, she entered November 12th this year. She has her residence permit. We are still here right now, in fact.

[Casa]

Then you have a choice. Residence in the UK or in the USA. Your wife can't have both if she wants to qualify for FLR(M) and eventually ILR.

[iamsuperbritish]

Then you have a choice. Residence in the UK or in the USA. Your wife can't have both if she wants to qualify for FLR(M) and eventually ILR.

OK. I have a good question off the back of that. From the 33 months, she has been granted now. How long can she (according to the UKVI rules) stay outside of the country? Is there's a specific number to it?

[CR001]

And assuming she is 'lucky' to get an extention and ILR and the ultimate aim is for her to get British citizenship which also requires proven residence, she will fail hopelessly on this one due to such extensive absence and 'future intentions'.

[Casa]

The issue of absence isn't while the current spouse visa is valid. Your wife will have to prove that she has been living with you in the UK throughout the full 2.5 year period when the time comes to submit a FLR(M) visa application. Only reasonable absences, holidays, compassionate circumstances etc will be accepted.

Choosing to live with you in her home country won't be considered as qualifying for residence in the UK.

[iamsuperbritish]

The issue of absence isn't while the current spouse visa is valid. Your wife will have to prove that she has been living with you in the UK throughout the full 2.5 year period when the time comes to submit a FLR(M) visa application. Only reasonable absences, holidays, compassionate circumstances etc will be accepted.

Choosing to live with you in her home country won't be considered as qualifying for residence in the UK.

Sorry I don't get what you mean.

So here:

33 months initial visa

27 months extension

From the 60 months how long is a minimum residence amount?

[Casa]

60 months. With reasonable absences for holidays, compassionate circumstances etc as mentioned in my last post. All absences over 180 days must be declared and justified.

Are you maintaining a home in the UK with payment of Council tax, utility bills, tenancy/mortgage etc?

Your overseas earnings will show that as the sponsor you haven't been residing in the UK with your wife during the qualifying period.

[iamsuperbritish]

60 months. With reasonable absences for holidays, compassionate circumstances etc as mentioned in my last post. All absences over 180 days must be declared and justified.

Are you maintaining a home in the UK with payment of Council tax, utility bills, tenancy/mortgage etc?

Your overseas earnings will show that as the sponsor you haven't been residing in the UK with your wife during the qualifying period.

Yes, I have council tax, utility bill, tenancy agreement etc.

OK. So only if she is LUCKY she will be able to get ILR, but would she be able to extend at least?

Also, 180 days is only half a year. Is she allowed 180 days from every year from the 5 years?

What if in a year or so we have Dual National kids - which is obviously going to be their legal status if we have any.

[secret.simon]

The Home Office provides some leeway in spousal visas in that there are no specific absence rules. What is required is "an intention to live together permanently in the UK". That intention is judged by the behaviour of the couple during the five years of spousal visas. Their line of thinking is that past behaviour predicts future behaviour.

Read the Immigration Directorate Instruction: Family Migration, especially Page 26.

The intention to settle together in the UK is central to all spousal visas, whether extension or ILR and I am not sure she can even get an extension, because she has demonstrated by long absences that she has no intention of settling in the UK.

What if in a year or so we have Dual National kids - which is obviously going to be their legal status if we have any.

No difference whatsoever as regards spousal visa. The only difference that dual national kids would make is that were your marriage to fail, she could get a visa to stay in the UK if she were taking care of the children. But even then, she would have to demonstrate "intent to live in the UK".

The absences requirement for naturalisation are much harder to meet, so do factor in those in case you aspire for your wife to get dual citizenship.