Expediting visa renewal / ILR

[londonimmigration2012]

Dear all,

I hope you can help me and my wife on this a bit complicated situation. I am a British citizen (previously French) and my wife is from Chile.

We both moved to the UK in 2005. Back then she had a student visa. In March 2007, she received an unmarried partner visa using EEA regulations, which will expire in March 2012. In the meantime, I have been naturalized as UK citizen and we got married.

Now it is my understanding that my wife can apply for ILR 28 days before her current unmarried partner visa expires, however, she is moving jobs and her new employer requests proof that she can legally remain in the UK and work for the next two years now before she can take up her new job.

If she has to wait until February 2012 the job will be gone, so we were wondering if there is anything that we could do to get her a visa / ILR already earlier?

Is the 28 days rule strictly enforced? Or is there a different visa category that she could apply for (ideally with same-day processing) before applying for ILR?

Thank you in advance for your help, this is much appreciated!

Regards,
LI

[geriatrix]

She cannot apply for settlement / ILR (under UK immigration laws) if she is currently in the UK as family member of a EEA citizen (under EEA directives).

[Kitty]

To add to what sushdmehta says, your wife will need to apply for confirmation that she has acquired a right of Permanent Residence ("PR") under EEA rules, once she has spent 5 years living in the UK continuously as your partner/spouse.

The requirement to be able to show that she will have legal status for the next 2 years may be discriminatory, but I would understand why a prospective employee might not want to rock the boat by making such an allegation straight away.

The best I think she can do to begin with is to provide her prospective employer with informaiton about how the Regulations work for non-EEA family members of EEA nationals. She can provide evidence that she is married to an EEA national, and that she has had a right of residence since 2007 (so that she should acquire PR in early 2012). When did you get married? Would she retain a right of residence even if you divorced before she attained PR? Might help to be able to add that to the mix.

Whether it is proprtionate for an employer to refuse to take on an employee in those circumstances would be one for an Employment Tribunal to judge. There is some fairly recent case law confirming that the Tribunal understands that legal residence/permission to work under the European Directive is a matter of fact and not dependent on the provision of particular documents.

[londonimmigration2012]

Thank you to both of you for your help. So I do understand there is nothing she can do until 28 days before the current visa expires. I haven't heard about the Permanent Residence under EEA rules yet, is this similar to ILR in terms of being able to gain British citizenship?

Does it make any difference that I am now a British citizen?

We know already that the employer does not sponsor work permits but only later found out about the 2 year requirement which shouldn't be an issue but now the only problem is timing.

Thanks again for your help!