ILR - apply from UK or from country of residence?

[Froggess]

Where to apply for IRL ?
Your advice will be greatly appreciated.

I am a non-EEA “visa national”, married to a British citizen for more than 4 years. We married in France, and all this time have been living in France. Now my husband has got a job offer in the UK and we plan to move and settle there. I have a multiple C-visit visa (no more than 180 days).

As far as I understand, I have two possibilities:
- I apply for settlement (ILE) while still residing in France. I will need to answer questions about accommodation in the UK. We will rent an apartment in the UK. Obviously, we would like to have our apartment in France also rented, and as soon as possible. So when my husband actually has proof of accommodation in the UK, I will most probably have nowhere to stay in France while the application is processed...

- Or, we both move to UK (I enter with a multiple C-visit visa), and I apply for ILR in the UK. Would it be considered as a violation of any rules? Also, for the SET M form, all those 20 documents will be needed. We do have all those bills and statements, but from French sources. Will they be accepted?

Where is best to apply? If I apply in France, which is more logical, at least to me, I will apply about a month before the planned moving, and at this time we will probably have no address in UK, so how can I pass the accommodation test? Book a hotel?

Merci in advance

[Smit]

You should apply for ILE based on the fact that you have been married to a British Citizen for 4 years and both have been living outside the UK during this 4 year period.

You cannot switch in the UK from your Visitors visa. To apply for ILR in the UK, you would need to apply for entry clearance as a spouse and apply for ILR at the end of the 2 years spouse visa. So clearly, option 1 is the best for you.

[John]

Froggess, as you clearly realise, one option open to you is to apply for a spouse visa in France, and given that the two of you have lived together outside the UK for at least four years they will grant ILE to you. However it is worth mentioning to the British Embassy in France that you are entitled, if the application is granted, to ILE .... not all British Missions are fully up-to-speed as regards this matter.

Another possibility is for you to apply for an EEA Family Permit. You are entitled to do this because your husband, whilst a British Citizen, has been exercising his EU treaty rights outside the UK for at least six months. Again you would apply for that EEA Family Permit at the British Embassy in Paris.

But there are differences! Firstly the ILE application would incur a fee of €403, whereas the EEA Family Permit is free! Hey, that sounds good! But it is not as simple as that! Your future intentions might come into this. Can I ask, do you intend to apply for naturalisation as British in due course? If so if you have ILE you would be able to do so 3 years after moving to the UK.

Whereas with an EEA Family Permit you will not end up with ILR until after four years, and that would delay a naturalisation application for say a year.

And needless to say the ILE gives you better rights immediately, whereas an EEA Family Permit is dependent upon your rights under the EU treaty, at least until you have ILR after four years.

And the mention of four years .... that could well become five years under some UK Government proposals, not yet the subject of legislation.

In summary .... how much do you want to save €403? Are you intending to apply for naturalisation as British in due course?

[Froggess]

Smit, John,
Thank you for your replies. John, thank you for explaining the difference of the two application procedures. I will try to get the ILE at the British Embassy in Paris.

Talking about savings, the application fee is OK. What I wanted to save is the rental fee. It seems we will be forced to pay for 2 houses at the same time: I will have to show proof of accommodation in UK when I apply, and at the same I have not yet moved out from France.

Anyway, thank you again, for being there and helping people by providing invaluable advice.

[John]

It seems we will be forced to pay for 2 houses at the same time

I have to say I don't think that is right. You have to show that your accommodation is "suitable" and certainly not overcrowded but numerous members of this Board have passed the accommodation test by means of a hotel booking for say 14 days after arrival.

And many more have permission from relatives or friends to live with them temporarily until their own accommodation is secured.

[Froggess]

John,

Thank you for the clear answer.

You mentioned that four years may become five, and I have seen in various topics your advice to apply for UK permanent residence now, in March, before the new regulations come into force on 3 April.

This new requirement of 5 years for Indefinite Leave to Remain - will it also concern family members (spouses) of UK citizen? Or only HSMP and Work-permit related applicants?

[John]

You mentioned that four years may become five

Indeed on 3rd April 4 years will become 5 years! That change has now been definitely announced.

This new requirement of 5 years for Indefinite Leave to Remain - will it also concern family members (spouses) of UK citizen? Or only HSMP and Work-permit related applicants?

I think there is an easy, safe way of putting this. Anyone with a 4-year rule now will have a 5-year rule as from 3rd April 2006. That includes not just HSMP and WP but also ancestry and EEA applicants.

Family members of British Citizens? They have a 2-year requirement at the moment. That is totally unchanged ... and there are no plans to alter that.

Ah but ... just looked back at the whole of this topic, and therefore now realising the context for you of 4 years. You have lived with your spouse outside the UK for at least 4 years. Question ..... do the latest changes alter that to a 5-year requirement?

In other words, are you within para 281(b) of the Immigration Rules :-

(b) the applicant is married or the civil partner of to a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom;

So do the latest changes alter anything in para 281? Answer, having just done a search .. no! So for you it stays a 4-year requirement, in order for you to be granted ILR outside the UK.

[Froggess]

Merci, merci!

I will only hope that the British Missions will not read the new requirements as an automatic shift from a 4 year rule to a 5 year rule for all cases!