Indefinitely leave to remain as the spouse...

[Banu]

Hi everbody,

I have been living in the UK together with my husband(British) for almost 2 years. I am currently holding a student visa which will end at the end of 2006. We got married 2 years and 1 month ago in Turkey and settled in the UK just after we got married. Obviously, at that time, I entered the UK with a student visa (issued on 29 Dec 2002) and I made it extended till the end of Dec 2006, on 9 December 2003. And now, I would like to apply for indefinite leave to remain in the UK. I have a part time job here, but my husband does not have a job at the moment because of his full time postgraduate study. However, we are financially supported by our families. I would like to ask if I am eligible to apply for indefinitely leave to remain in the UK, at the moment and would like to take your advice on this situation. Thanks in advance.

Regards,
Banu

[Kayalami]

Under the immigration rules you can only apply for Indefinite Leave to Remain in the UK on the basis of marriage to a person present and settled in the UK after you have completed a probationary period of stay in the UK. In other words you must first apply for an extension of your stay or for a visa to enter the UK as the spouse of a settled person then after spending a period of time on this visa apply for ILR.

For applications decided prior to 1 April 2003 the probation period was 12 months. For applications decided on or after 1 April 2003 the probation has been doubled to 2 years. Regretably you must apply for the probation visa then apply for ILR after 2 years. You have lost time as you would have by now held ILR. While there is scope for the Home Secretary to exercise discretion and grant ILR outside the rules I see no reason for such in your case - with all due respect ignorance of the law is not compelling enough.

You will need to meet the requirements of the rules pertaining to being able to accomodate and maintain yourselves without recourse to public funds for both the probation and ILR applications. Search the family forum for extensive and detailed posts on spouse visas.

Good luck

[Banu]

Thanks for your quick response. I understand my position. I have another question then. As I have indicated I have been living in the UK for almost 2 years together with my husband(British) but I am staying in the UK on my student visa. What if I apply for an "extension of stay in the UK as the spouse of a person present and settled in the UK", now? I have a student visa till the end of December 2006 at the moment. Do need to renounce from my student visa to apply for "this extension of stay as the spouse of a person present and settled in the UK". Or, if my extension of stay application will not be accepted, shall I loose my current student visa? Thanks for your help in advance.

Regards,
Banu

[Kayalami]

You can (and should) apply for your probation/ spouse visa while you have a valid visa in any other category other than a visitor visa. Given that you have lost enough time as it is you should apply for your spouse visa as soon as possible using - Form FLR(M).

The visa issued will supercede the student visa given that it allows you to full employment/ self employment rights without needing a work permit. You will still be prohibited from accessing public funds. The caseworker who approves your application may or may not make an annotation in your ppt to the effect "this visa (spouse) supercedes that (student) on page x" - given the new visas come as a photo vignette it is likely they will not. Technically speaking your student visa is not invalidated perse but unless you remain in the relevant institution on a full time basis it will not serve as a plan B. I have deleted your duplicate post on the same subject - appreciate your concern but need to save space on the database .

Good luck