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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7902
Experience:  UK Lawyer holding practising certficate for England & Wales.
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Can a Ukrainian national here on the first half (2.5 years)

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Can a Ukrainian national here on the first half (2.5 years) of a spouse/cp visa but married to a British national since 2006 and resident here for the past 3+ years obtain a British passport prior to the expiration of second half of the same visa?
Thomas
Hi,
Thanks for your question.
When did the spouse enter the UK and what visa were they on?
When did they first obtain a spouse visa?
Kind regards,
Tom
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Customer: replied 4 years ago.

6/12/2011 visit visa

first spouse visa issued 10/07/2009
Hi,
So, she obtained a spouse visa on 10/07/2009. This would have been under the old rules (ie. two year residence required for ILR).
What happened after that? Did she remain in the UK on the spouse visa for two years?
Kind regards,
Tom
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Customer: replied 4 years ago.

No, that was issued in Madrid, we both lived in Spain at the time but when we went to re-new in Madrid they said her Passport was not in a good enough state. No one mentioned at that time the significance of the visa type or her entitlement to an ILR visa.

As by this time we had intended to return to the UK came back, explaining the circumstances to the senior immigration officer at Calais, who allowed us entry and we then went to Ukraine to obtain a new passport which was issued 23/01/2012.
Right.
So is it correct to say that your spouse entered the UK on a visit visa in December 2011. You then switch to a spouse visa, which is the current visa that she is on.
Is this correct?
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Customer: replied 4 years ago.

Not really, as I explained the immigration officer admitted her technically with no visa, her latest spouse visa having expired on 10/10/2011. We then went to Ukraine, obtained a new passport and then a 10 year visit visa, not understanding I should have applied for a ILR visa. In 2012 my wife was stopped in Gatwick by immigration saying her 10 year visit visa was not the correct type, issued 08/02/2012 They allowed her to pass on my promise we would go to Ukraine and get the correct spouse visa, this we did. Because of the change in the rules she was granted the spouse visa she has on 12/07/2013 expiring 12/04/1016 and then needs to obtain the second half which will expire on 12/07/2018.

Hi
Thank you for your question and patience, I’m Tom and I’ll try to help you.
As I am sure you are aware, in order for a spouse to naturalise as a UK citizen they must first hold ILR. Under the rules in place before 9 July 2012, once a spouse had been on their spouse visa for 2 years they could apply for ILR. A further year later they could apply for naturalisation.
Under the rules in place since 09/07/2012 the residence period has now changed to 5 years. So, for a spouse visa application submitted after 09/07/2012 a spouse would have to wait 5 years until they could apply for ILR. Once they had ILR they can immediately apply for naturalisation provided they meet the criteria on the following page:-
https://www.gov.uk/becoming-a-british-citizen/if-your-spouse-is-a-british-citizen
My view is that because of the complications that have occurred, the home office will take the view that her current status (including the residence period applicable in order to apply for ILR) should be judged under the new rules because her current visa is a spouse visa issued in July 2013 which was not issued as a direct extension of a spouse visa from before the new rules came in to force (ie. because you ended up on a 10 year visit visa)
For this reason, my view is that the home office would require her to apply for an extension and that she could only apply for ILR in July 2018.
I really am sorry, it’s a frustrating situation but that is unfortunately my view on how the home office would interpret what has happened here.
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,
Tom
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