Canadian citizen to UK resident

[canuckspouse]

I am a UK citizen, born in the UK. My husband was born in Canada. We have been married and lived abroad for 16 years years, but now wish to live in the UK. I have owned a house in the UK for 20 years. We both have private pensions, although my husband's pension is small. However, we have private means and do not need any state support. We are now in the UK, although my husband stays legally on a visitor's visa, and leaves the country regularly. What does he need to do to initially just to legally reside in the UK, and ultimately become a UK citizen?

[Casa]

Your husband will have to return to his home country and apply for a spouse settlement visa from there. He can't switch as a visitor to any other visa category from within the UK.
In order to meet the mandatory financial conditions, you will have to either show you (as your husband's sponsor) have income of £18,600 p.a or savings of £62,500 held in an accessible account for a minimum of 6 months.
If the application is successful your husband will be granted an initial visa for 2.5 years, after which he will have to apply for a 2.5 year extension in order to complete the 5 year probationary period before qualifying for Indefinite Leave to Remain (ILR). The financial conditions and visa fees will apply throughout until ILR has been granted.
The initial spouse settlement visa fee is currently £1175 and a NHS surcharge of £600 is also payable.

Be wary of how much time your husband is spending in the UK as a visitor. If the IO considers that he is spending more time in the UK than he is spending in his home country in a 12 month rolling period he could be refused entry on arrival.

[canuckspouse]

What? Are you absolutely sure? We were told he could apply from within the UK. I don't get it ... he is Canadian, from a Commonwealth country, we are retired, have a private medical insurance, private pensions, and a house that is ours. We will not take anything from the State. We have all the proof that is necessary. Why does he have to jump through hoops to be allowed to live here?

[Casa]

I'm afraid there are no concessions for Commonwealth citizens.
https://www.gov.uk/join-family-in-uk/overview

https://www.gov.uk/government/uploads/s ... rement.pdf

You were mislead. I can confirm beyond any doubt that it isn't permitted to apply for a spouse settlement visa from within the UK while here as a visitor.

[canuckspouse]

So, we both worked in Switzerland for many years before this, and my husband worked in the US for many years before that. So where does he have to go back to?

[noajthan]

Unfortunately hubby is on a very sticky wicket as a visit visa is not for residing.
Be aware an IO could deny him at port on the next trip - and that will be gameover.

[Casa]

In which country does he currently have legal residence when he isn't visiting the UK?

[canuckspouse]

If you are trying to scare me, you are doing a great job. I have looked at the government website, and he is allowed to be in this country as a visitor for a period of six months, renewable. Why would he be refused?

[noajthan]

So, we both worked in Switzerland for many years before this, and my husband worked in the US for many years before that. So where does he have to go back to?

As an alternative to the rigorous and financially stringent UK migration route (which does a great job of splitting up families), there may be a way out based on the EU migration route.

You may have inadvertently successfully completed the Surinder Singh route by exercising your treaty rights in a Union state and then returning to UK.
Ref https://www.freemovement.org.uk/surinde ... ion-route/

Do you have evidence of moving your centre of life to Switzerland as well as of you, as EEA sponsor, exercising treaty rights (eg by working) in Switzerland?

If so then hubby may apply (as a direct family member of you the proxy EEA national) for a residence card (RC) confirming his status in UK.
As your dependent he will be permitted to reside, work, study in UK (as long as UK remains in EU).
This is the beauty and elegance of free movement in action.

After 5 years of residence in UK on this basis he may acquire PR and thus apply for a confirmation of PR card.
The PR card is one mandatory prerequisite for naturalisation.

Then, as spouse of a BC, he may immediately apply for the privilege of citizenship and subsequently, by a further application, a British passport;
that is assuming all other requirements for naturalisation have been/can be met (have you checked them?).

Note If there is no time to acquire PR (due to looming Brexit) hubby would have to rely on the traditional British sense of fair play and any transitional arrangements that may be put in place for EEA family members. (Yet TBC).

Takeaway
Being a Commonwealth citizen doesn't help you - but being a Union/EU citizen may prove to do so.

Next steps
If you can elaborate on your sojourn in Switzerland it may be possible to determine if this route will prove viable.

[noajthan]

If you are trying to scare me, you are doing a great job. I have looked at the government website, and he is allowed to be in this country as a visitor for a period of six months, renewable. Why would he be refused?

Whatever is on the Gov UK website is mere guidance (edited highlights if you will) and is not the law.

I am stating the basis on which someone is permitted to be in UK on a visit visa.
Ignorance of visa conditions is no defence and will not cut any ice whatsoever with an IO at the border.
If you have got through on several trips so far then that is down to pure luck.

Violation of a visit visa will be likely to mean no more visit visas being issued.
If its any consolation you are not alone, US citizens also form a great body of unintended overstayers in this country due to similar misunderstandings.

You have been grossly mislead or are deluding yourself if you think hubby has any other basis to be in UK on the back of a visit visa.
However far from intending to scare you I have thrown you a lifeline that may just save your situation - see my post above.

[Casa]

Official Guidance to Immigration Officers: Page 10 of 52 Published for Home Office staff on 08 January 2016
Frequent or successive visits: how to assess if an
applicant is making the UK their main home or place of
work
See paragraph V 4.2(b) of the visitor rules.
You should check the applicant’s travel history: how long are they spending in the
UK and how frequently are they returning? You must assess if they are, in effect,
making the UK their main home.
You should look at:
• the purpose of the visit and intended length of stay stated
• the number of visits made over the past 12 months, including the length of stay
on each occasion, the time elapsed since the last visit, and if this amounts to
the individual spending more time in the UK than in their home country
the purpose of return trips to the visitor’s home country and if this is used only
to seek re-entry to the UK
• the links they have with their home country-consider especially any long term
commitments and where the applicant is registered for tax purposes
• evidence the UK is their main place of residence, for example
o if they have registered with a general practitioner (GP)
o send their children to UK schools
• the history of previous applications, for example if the visitor has previously
been refused under the family rules and subsequently wants to enter as a
visitor you must assess if they are using the visitor route to avoid the rules in
place for family migrants joining British or settled persons in the UK
There is no specified maximum period which an individual can spend in the UK in
any period such as ‘6 months in 12 months’. However, if it is clear from an
individual’s travel history that they are making the UK their home you should refuse
their application.

https://www.gov.uk/government/uploads/s ... e_v4_0.pdf

[TheSpouse]

Hello all, the spouse here ... Thanks for all of your info so far

Noajthan , re. Swiss status ( I still need to read the case you linked )
My wife was legal resident in Switzerland for 20 years , myself for 12 and while I ( due to my wife's status ) COULD work in private sector I did only for a brief period ( weeks ). Most of my tenure and the entirety of my wife's stay was spent working under the UN umbrella so I'm not sure what effect that would have re. EU

[canuckspouse]

Switzerland is not a member of the EEA.

Would it be a good idea to make an early appointment with a solicitor dealing with immigration matters?

[TheSpouse]

Further ..... Switzerland is not /was not an EEA member ( app. rejected 1992 )

Thanks for the lifeline tho

[noajthan]

Hello all, the spouse here ... Thanks for all of your info so far

Noajthan , re. Swiss status ( I still need to read the case you linked )
My wife was legal resident in Switzerland for 20 years , myself for 12 and while I ( due to my wife's status ) COULD work in private sector I did only for a brief period ( weeks ). Most of my tenure and the entirety of my wife's stay was spent working under the UN umbrella so I'm not sure what effect that would have re. EU

Welcome aboard.

As per my understanding Switzerland is still party to free movement.

Switzerland
Switzerland is not part of the European Union (EU), but Swiss nationals and their family members have the same free movement rights as EEA nationals

Ref https://www.gov.uk/government/uploads/s ... s_v3_0.pdf

All the British citizen has to do is show they were working in a Union memberstate.
The spouse just has to show they were residing in same state (not even cohabiting, yes free movement is that free and easy).

The UK imposes its somewhat controversial centre of life test around the cleaner, purer EU law.

But if you have rock-solid documentary evidence of:
your identities;
your relationship;
both parties residing in a Union memberstate eg Switzerland
sponsor exercising treaty rights (eg working);
centre of life moved to memberstate;

then I believe you can make a case as the dependent of an EEA citizen now in UK.

For UK RC, see https://www.gov.uk/family-permit/surinder-singh

Regarding centre of life see:
https://www.gov.uk/government/uploads/s ... dacted.pdf

Note In the migration context, Brits (even before Brexit) are only considered (under UK law) as being EEA citizens by having done Surinder Singh - that's why its important to prove you have both done it together and thus that you qualify.

Worst case you will just have to fall back on the UK migration route as intimated by moderator Casa.

[noajthan]

Further ..... Switzerland is not /was not an EEA member ( app. rejected 1992 )

Thanks for the lifeline tho

Still well worth digging into.

In the case of the UK and in particular in the UK's EEA Regulations transposing Directive 2004/38/EC, the UK defined EEA states as being EU plus the actual EEA states plus Switzerland.

[noajthan]

Switzerland is not a member of the EEA.

Would it be a good idea to make an early appointment with a solicitor dealing with immigration matters?

No, not just an immigration lawyer.
But a licensed, qualified, and experienced solicitor or OISC advisor who is fully-versed in (and with a track record of) EU migration cases may be an asset.

[Casa]

You can of course seek legal advice. In addition to noajthan's advice on the Surinder Singh route it would be wise to read thoroughly through the rules regarding finance in the link I posted for you to see if you qualify under UK Immigration Rules. Check the section on qualifying through pension payments & savings to meet the £18,600 minimum income level. The Entry Clearance Officer will allow no flexibility on this.

[canuckspouse]

noajthan ... you have been really helpful and spent quite some time on this for us - most grateful. I left Switzerland to come back to the UK officially in December 2012. My husband has been travelling since then, spending much of his time, on and off, in the UK. Can we still use Switzerland as the "centre of life" even though it ceased to be some time ago?

[canuckspouse]

Casa, thank you. My income far exceeds the £18,000 figure, but my husband's does not. Can I sponsor him, so that his income is not an issue?

[noajthan]

noajthan ... you have been really helpful and spent quite some time on this for us - most grateful. I left Switzerland to come back to the UK officially in December 2012. My husband has been travelling since then, spending much of his time, on and off, in the UK. Can we still use Switzerland as the "centre of life" even though it ceased to be some time ago?

By definition all applications under Surinder Singh relate to the past.

Suggest look at the RC form and guidance (linked above).
Also review the UK 'col' guidance (as above).
Assemble your evidence, both from Switzerland years and subsequent UK years - it needs to be rock-solid if not unimpeachable.
See how it all stacks up.

Note any subsequent absence from UK (since return in 2012) of over 6 months by either party will have broken continuity of residence in UK unless its for a one-off exceptional reason (of up to 12 months);
eg due to pregnancy, military service, work/study placement (or some combination of these).

If you have both been based in UK since 2012 then hubby may acquire PR as early as your 5th anniversary of return to UK, ie sometime in 2017.

fyi - the BC sponsor does not have to exercise treaty rights back in UK (due to case law of Eind) so dependent's acquisition of PR simply depends on residence in UK (assuming you remain married to each other).

More specific guidance on the relationship of UK and Switzerland in the EU migration/free movement context:
https://www.gov.uk/government/uploads/s ... _0_EXT.pdf

[canuckspouse]

Good morning noajthan. I have read all I can on the Surrinder Singh route, and we can provide all the necessary requirements. I am confused and concerned though as to whether my husband should say he has been resident in the UK or not. If he says he has been resident for 3 years, it will certainly help towards getting a PR card, but as a Canadian national, he had no right to be resident here. So how do we get around that?

[noajthan]

Good morning noajthan. I have read all I can on the Surrinder Singh route, and we can provide all the necessary requirements. I am confused and concerned though as to whether my husband should say he has been resident in the UK or not. If he says he has been resident for 3 years, it will certainly help towards getting a PR card, but as a Canadian national, he had no right to be resident here. So how do we get around that?

If you meet the requirements under Surinder Singh then you have the full power and weight of EU law behind you and hubby has had (and has) the right of residence through you, his sponsor.

Note There is no concept of 'visa' or 'leave to remain' on the EU migration route.
A RC is optional so its not mandatory to hold (or have held) any such confirmatory document to prove all this. Such is the laissez-faire philosophy underpinning free movement.

There is no legal requirement that:

• The EU citizen is already (or will be) living or working in a different EU member state;
  The non-EU family member holds a specific immigration visa or status. It is fine for them to have a nationally issued visa or a student visa or a visitor’s visa or even implied status;
  The family member apply in their country of origin;
  The family member resides or previously resided in the EU/EEA;

Ref https://eumovement.wordpress.com/2007/0 ... u-citizen/

Naturally Brexit is a complication but, with your UK entry 3 or 4 years ago, hubby is in a far better position vis a vis PR than the thousands also still 'in flight' on the EU migration trajectory and with more than 2 years to go before acquiring the holy grail of PR.

On the other hand if you now fail with that RC application (to be made under EU regulations) then clearly hubby is an overstayer with no right to be in UK. But you have not lost anything by seeking to regularise his position because that may be the case anyway.

Worst case: hubby returns to last legally resident country and applies for a spouse visa (under UK Regulations) from there.
(As per my understanding, any adverse immigration history is not usually a showstopper on spouse route).

It may still prove a worthwhile investment to seek legal advice on this case.

[Casa]

noajthan will the fact that he has been regularly stamped in and out of the UK as a visitor for the last few years make any difference to qualifying under SS?

[noajthan]

noajthan will the fact that he has been regularly stamped in and out of the UK as a visitor for the last few years make any difference to qualifying under SS?

@Casa, my understanding is there is no precondition on the previous type of immigration status a dependent has to have before switching to the EU migration route.
I am not over familiar with it but I have seen reference to case law that even permits those with no status (or illegal status) to switch to the EU migration route.
Other members have certainly switched or contemplated switching from the visit route.

As its not mandatory for a direct family member (FM) of a Union citizen to possess a FM RC this application (if made now) is not even '4 years late'.