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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7481
Experience:  UK Lawyer holding practising certficate for England & Wales.
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My Argentinian wife has discretionary leave to remain until

Customer Question

My Argentinian wife has discretionary leave to remain until Nov 2014. We got married in the UK in Feb 2013.
Should we apply to renew/extend her visa and then apply for Indefinate Leave to Remain in Feb 2015 or can we do it sooner ?
She has an Argentinian Degree in English Teaching (Approved in the UK by NARIC) and is also my registered Carer.
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Thomas replied 2 years ago.
Hi,

Thanks for your question.

Can you explain a bit about the background behind how she got discretionary leave to remain and not a spouse visa in the normal way?

When did she come to the UK?

When did she get her discretionary leave to remain?

Kind regards,

Tom
Expert:  Thomas replied 2 years ago.
Hi,

Are you able to respond to the above post in order that I may provide you with an answer please?

Kind regards,


Tom
Expert:  Thomas replied 2 years ago.
Hi,

Are you able to respond to the above post in order that I may provide you with an answer please?

Kind regards,


Tom
Customer: replied 2 years ago.

I sent the info required as detailed again below


I await your reply


 


Poppy came to UK in 2005 as carer with UK charity eventually becoming my carer and living with me.in 2011


 


Vetted by the Inst of Registrars Eastleigh Hants including immigration checks before we got married in Feb 2013

Expert:  Thomas replied 2 years ago.
Hi,

Thanks for your reply. I can only see your original question and this most recent reply, but I will attempt to answer in any event.

If she is on a discretionary visa but you have married in the intervening period since she obtained it then the UKBA would expect you to make an application based on your marriage.

Therefore before her visa expires the UKBA would expect you to make an application to switch in to a spouse visa.

The key thing to consider so far as a spouse visa is concerned is whether you meet the financial requirement.

The guidance on the financial requirement is here:-https://www.gov.uk/government/collections/chapter-8-appendix-fm-family-members-immigration-directorate-instructions

Usually, there is a salary threshold applicable. However, there is an exemption in the case of a sponsor(ie. you as the UK spouse) if you are in receipt of a disability related benefit, which I assume you are if you have her as your carer. On this basis you would not need to meet the financial requirement and would instead simply have to show that you will be able to support/accomodate yourselves without the need to access any more public funds than you already do.

The UKBA webpage on spouse visas is here:
https://www.gov.uk/join-family-in-uk


The eligibility criteria is here:-
https://www.gov.uk/join-family-in-uk/eligibility

If the application is well prepared and you meet the following eligibility criteria then it will make the application easy and quick to decide upon for the UKBA. To be eligible, you must show (in addition to the financial requirement):-

• you and your partner are both aged 18 or over at the date of application;
• your partner is a British Citizen, or is present and settled in the UK, or is here with refugee leave or humanitarian protection;
• your partner is not related to you in a way that means you could not marry in UK law;
• you and your partner have met in person;
• your relationship with your partner is genuine and subsistingif you are married or in a civil partnership, your marriage or civil partnership is valid in UK law;
• if you are not married or in a civil partnership you have been living with your partner in a relationship akin to marriage or civil partnership for at least 2 years prior to the date of the application;
• you meet the suitability requirements
• any previous relationship has permanently broken down (this does not apply to certain polygamous relationships);
• you and your partner intend to live together permanently in the UK;
• She will also have to meet the Engilsh language requirement: https://www.gov.uk/join-family-in-uk/knowledge-of-english

You would need to apply for settlement (ie. spouses visa) by using form VAF4A Settlement, available for download from UKBA's website.

It’s a very complicated application to make so you should strongly consider instructing a UK based immigration solicitor to prepare and submit the application. You can find Uk immigration solicitors through the following Law Society Website search engine:-
http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law

Kind regards

Tom
Expert:  Thomas replied 2 years ago.
Is there any further information you require?

I just want to ensure that you are satisfied, so please let me know if you have any further queries on the information I have provided.


Kind regards,


Tom
Customer: replied 2 years ago.

Thank you for your prompt advice.


Plenty to think about and no doubt more expense will have to be found in order to resolve this situation.


 


It does seem that if one is a criminal or involved in a sham marriage thats OK not only to remain but to claim all the generous benefits that are on offer!!


 


Thanks once again for your helpful assistance


 


Iain & Poppy

Expert:  Thomas replied 2 years ago.
You're welcome.

Please do remember to rate my answer once you have finished with it.

Tom

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