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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7602
Experience:  UK Lawyer holding practising certficate for England & Wales.
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I currently employ a British National who is married to an

Resolved Question:

I currently employ a British National who is married to an Indian national whose spous visa expired 31/12/13. He learnt today that his request for an extension was refused. I could send him back to India and 'sponsor' him to return on Tier 2 or Tier 5. However, is there a possibility of applying for a spouse indefinite leave again?
Submitted: 3 years ago.
Category: Immigration Law
Expert:  Thomas replied 3 years ago.
Hi

Thanks for your question.

What were the reasons for the refusal please?

Kind regards

Tom
Customer: replied 3 years ago.
Will need to check the letter for precise reason. Will go to office and return in 20 minutes
Expert:  Thomas replied 3 years ago.
Okay, thanks. If you able to reply before 9.30pm then I will be able to answer.

If after 9.30 then it's probable that I will be offline and will be able to answer at 9.00am tomorrow morning.

Kind regards,

Tom
Customer: replied 3 years ago.


As there was a time restriction on his previous 'spouse/partner leave to remain he was not allowed a further time restriction. He applied this time for Nationalisation


 


Meirion

Expert:  Thomas replied 3 years ago.
Hi Meirion,

He applied for naturalisation, correct?

When did he obtain his spouse visa and enter the UK please?

Kind regards,

Tom
Customer: replied 3 years ago.


Yes, he applied for naturalisation.


His current visa as spouse/partner was issued on 30/12/2011.


Meirion

Expert:  Thomas replied 3 years ago.
Hi Meirion,

Thanks. Drafting your answer now. 5 mins please.

Kind regards,

Tom
Expert:  Thomas replied 3 years ago.

Hi Meirion,

 

Thanks for your patience.

 

Basically, he has made the wrong applicaiton and disadvantaged himself because of it.

 

The process for any person on a visa is that must first obtain "indefinite leave to remain" by applying for it. Once they have obtained ILR they can then apply for naturalisation because they are no longer time-limited.

 

He would probably have been eligible to apply for ILR before his current visa expired. However, because his visa has now expired he, technically, no longer has leave to remain in the UK. The fact that he no longer has leave to remain in the UK is a general ground on which the UKBA can refuse an application that he submits now.

 

Although, it's very kind of you to offer, it's not really a solution for them for you to sponsor him because his immigration status would be linked to his employment with you. Instead, he needs to make an application based on his married.

The question is whether he should now apply for ILR or simply apply for further leave to remain, which is an extension by another name.

In both cases he would have to argue that they should disregard the lack of leave to remain and allow the application. Additionall, the would have to argue that it would be disproportionate and unreasonable of them to expect him to return to his home country only to make an application form there which would be accepted a matter of weeks/months later.

 

My view is that he should apply for ILR because although it's quite probable that they would not give him it, it is highly possible that they would give him further leave to remain anyway and extend his visa because of the circumstances.

 

It's going to be a bit of a fight and he would have to instruct a UK based solicitor in order to prepare the application quickly and submit his statements in support explaining his honest mistake and misunderstanding of the immigration rules which led to him prematurely thinking that he could apply for naturalisation now.

 

It might take a bit of time to sort out as well, so they should mentally prepare themselves for the process to be fairly demanding.

 

Additionally, time is of the essence and they need to see a solicitor as soon as possible to get cracking.

 

Kind regards,


Tom

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