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Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7673
Experience:  UK Lawyer holding practising certficate for England & Wales.
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Hi .. I cant understand the current rules on indefinite leave to remain for my wife. Here

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Hi .. I cant understand the current rules on indefinite leave to remain for my wife.
Here is the detail
I am a British Citizen born and living here all my life.She is Bolivian we go engaged in Jan 11
She got a fiance ( marriage visa ) dated from July 11 to Jan 12 and came back to the UK
Due to delays in my divorce proceedings from my previous marriage we applied for an extension to this visa in Jan 12.. This extension was still being processed when we actually did get married in Jan 2013
Following that we applied in person for further Leave to remain as spouse of a british citizen and that was granted in Feb 13 for a period of 2 years.
That is about to lapse in Feb 15 and I am wondering if I should just apply for another 2yr FLR spouse visa OR can I now go for Indefinite leave to remain ?
Thank you for your question and patience, I’m Tom and I’ll try to help you.
The safest thing to do would be to apply for further leave to remain as a spouse of a UK national.
My view is that because the application to switch to a spouse visa from her fiancé visa was made after July 2012, then the application should probably be judged under the new rules. The new rules imposed a residence requirement of 5 years in order to be eligible to apply for indefinite leave to remain, whereas the old rules imposed only a 2 year residence requirement.
If you were to apply for indefinite leave to remain now because you thought your application should be judged under the new rules then there is a real risk that they would reject the application, retain the application fee and require her to apply for further leave to remain.
My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.
Kind regards,
Customer: replied 3 years ago.

OK that was the piece I didn't understand.. Do we qualify to get in before the Jul 2012 cut off date because we had a fiance visa before that date ?
It's really unclear on the website.
It sounds like your view is that that does not qualify

It is the key issue.
My view is that because you applied to switch to a spouse visa after the rule change in July 2012 and because of the problems you had with not being able to switch before your initial fiance ended (ie. you had to extend your fiance visa - which is almost never allowed) then you would judged under the old rules and therefore only qualify for ILR after 5 years.
I have to be honest, it's a really, really tricky question. The prudent thing to do to my mind would be to simply extend.
However, if you are prepared to lose the ILR application fee and face having to pay a further FLR fee to extend, then you can try to apply for ILR now. If they reject it and retain the fee and you can stomach that then you can always submit a FLR application provided you do it quickly following rejection of the ILR application.;
Kind regards
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