ILR question - wife's spouse visa has run out...

[webbynz]

hi,

after some specific info re: my wife's spouse visa and her application for ILR.

we've been in the UK for 4.5 years, we are both from NZ but I am a British citizen (from my father being born in Manchester) and have a british passport. my wife was on a youth mobility visa for the initial 2 years, then has been on a spouse visa for 2 more. now we had a baby 3 months ago, and obviously the pressures around this and time taken up has meant my wife's spouse visa has lapsed. we have filled in the forms for ILR, my wife still needs to do the life in the UK test etc, etc. we severely underestimated the time having a little one takes up. no excuses, and not after any high-horse comments about 'you should've done this, you should've done that' - thanks.

we are planning on going back to NZ for a month at christmas to show off our new baby and i am now assuming that even if we get the ILR application in ASAP, it will not be completed by the time we want to leave.

my question is this: will my wife be allowed in the country with no ILR visa, given our circumstances? i know there is a holiday visa she would be granted by default (being from NZ) however i am concerned that customs may view her as a risk.

any help would be greatly appreciated. we own a house in scotland and i have a good job with sufficient funds to look after her and the baby and all that.

thanks in advance

[Casa]

How long ago did the spouse visa expire? If you leave the country without her having ILR if she is allowed to re-enter as a visitor (doubtful as she obviously won't be visiting) she will be unable to apply for ILR when she returns here. Passing the Life in the UK test and submitting the application should be your priority as at present she is an overstayer. Don't apply in person, only a postal application stands a chance of succeeding. You obviously weren't aware that if she was unable to pass the Life in the UK test she could have applied for an extension - FLR(M) which would have granted her a further 2 years in which to do so. If ILR isn't issued following the application as you have a child she should be issued with a discretionary visa outside of the rules but this is a 10 year path to permanent settlement.

[webbynz]

hi, thanks for the message.

her visa expired at the end of july.

ok, so the expedited method is not an option because her current visa has expired?

[Casa]

Sorry, I've just added to my post. No, as case workers at Premium Service Centres simply don't have the authority to decide cases which aren't 100% straightforward. Your application would be passed to a higher level and would join the postal queue at the premium price. A postal application is likely to take around 3 months or more due to the complication of a late submission.

[webbynz]

re your comment below:

You obviously weren't aware that if she was unable to pass the Life in the UK test she could have applied for an extension - FLR(M) which would have granted her a further 2 years in which to do so. If ILR isn't issued following the application as you have a child she should be issued with a discretionary visa outside of the rules but this is a 10 year path to permanent settlement.

can she still do this? i was under the impression an extension to her spouse visa was not available as her current visa had expired?

[Casa]

Too late to extend unfortunately as she doesn't currently have a valid visa. I posted that info so that if anyone reading was in a similar position they could see there was an option if only the language condition wasn't fulfilled.
If you have the funds, it may be wise to seek legal help with the application.

[webbynz]

thanks. do you know the current timeframe for processing these types of applications?

any other options to extend her current visa you know of? if we are away whilst it is processed could we get it sent back to NZ? there is the option for me to come back on my own and send to her in NZ when it comes through i guess. not ideal with a little one however.

is there any compassionate grounds for these types of situation. 100% realise it is our fault though so i'm guessing not?

[Casa]

She won't be able to travel as the Home Office will have her passport. It could take several months to decide the application. Unfortunately your situation won't be considered under compassionate grounds (apart from the right to family life if ILR is refused) and there is no other extension option open to her.
As I said earlier, her priority now is to pass the Life in the UK test and submit the application as soon as possible. It would be a big mistake to leave the UK until she has done this and a new visa has been issued. You have to be aware that if she goes to NZ without a valid visa she could well be refused entry on her return and would have to re-apply for a new spouse visa from outside of the UK, resetting the clock...i.e 5 years to settlement. I know it would be disappointing to lose the holiday but better that than the alternative.

[webbynz]

thanks Casa. great advice and appreciate your taking the time to help. we'll get onto it.

[Casa]

Do come back if you get stuck with anything.

[webbynz]

Hi,

New development:

I have booked the life in the UK test for mid-October for my wife. Not ideal but the earliest I could get it at any test centre around where I live (we're already having to travel 100+ miles as Glasgow test centre has closed).

My work has told me they need me to commit to February-July next year without an extended break.

My guess is that it will be unlikely for my wife to get her visa back by the end of December if we submit it after the life in the UK test.

I need another option. Is there any way I can speak with one of these immigration lawyers to see if they can expedite her application once we've got the life in the UK test sorted? Happy to pay additional cost (within reason).

The final option is her coming in on a visitors visa when we return from NZ and submit her application after that. What is the likelihood that customs would turn her (and our 6 month old baby) away when she is obviously married to a british citizen, we have a house etc etc. Can we discuss this with anyone formally to try and get some kind of decision made at all?

Thanks again in advance.
Regards

[Casa]

If she is granted entry as a visitor she would lose the chance to fight her spouse visa application. I've PMd you

[webbynz]

Hi Casa, I can't view the PM

We are sorry, but you are not authorised to use this feature. You may have just registered here and may need to participate more to be able to use this feature.

What can I do?

[Casa]

Ah yes. You need 10 posts...so just 3 more. As a moderator I can see you email address. Do I have your permission to contact you on that?

[webbynz]

hi, please do. many thanks.

[webbynz]

another option mooted is to go to NZ in December and apply for a spouse visa from there. if she is outside the UK, would this be OK given her overstaying?

[webbynz]

also, my understanding is that there might be some human rights grounds for her to be granted a discretionary leave to remain visa?

very difficult to work out which option to go for.

[MPH80]

another option mooted is to go to NZ in December and apply for a spouse visa from there. if she is outside the UK, would this be OK given her overstaying?

Yes - it'd be fine providing there were no other breaches of law (such as claiming benefits she wasn't entitled to or working - including maternity leave - while she didn't have a visa).

The human rights argument is one that'll take many many months to resolve. If you wanted it done by December - about your only option is going to NZ.

Auckland is currently processing the majority of settlement visas in 10-15 days (with the remaining few percentage points being within 60 days).

But as has been said - renewing the visa in NZ will reset the clock to ILR - she'll be on a new 5 year path.

[webbynz]

Thanks MPH80.

Starting to feel a little bit better about this knowing that we have that NZ option. Haven't claimed any maternity leave or any other benefits whilst we've been in the UK.

Appreciate all the help provided guys.

[vinny]

After passing her Life in the UK Test, her SET(M) application under A280(c) and 288 should be successful.

[webbynz]

hi guys, need some additional help on this previously used thread.

we are now in NZ. we have completed the spouse visa application and my wife has been in and done her biometrics etc. we have now realised that her old passport (expired 2011) is now back in our house in Glasgow. how crucial is it that we include this, given that it is her second spouse visa application and UKBA would have seen this particular passport for the last application?

obviously it's our mistake but i wonder if an additional statement on our cover letter explaining this might suffice?

be interested to know your thoughts.

thanks