Spousal Visa Question

[hayburner]

Hi all, haven't visited the site for awhile.

Background: I recently (April) married my British husband in the UK on a Marriage Visitor Visa.

I am back in the states, awaiting an October court case in which I am requesting permission to remove my daughter to the UK with me.


Question: My lawyer recently asked me if I needed to wait to obtain the Spousal Visa or would I be able to obtain it now. I went to the Border Agency site and could not see anywhere how long the Spousal Visa would be good for if I were to obtain it now. I think she is asking, could I apply for and (hopefully!) receive it now, while we are awaiting the trial, or do I need to wait until after the trial. How long is it good for once obtained?

I am not sure of the reason for this question but I think it has to do with just preparing all information for the judge.

Thank you all in advance.

[hayburner]

bump... anyone? thanks :-)

[mehemlynn]

Originally Posted by hayburner

Hi all, haven't visited the site for awhile.

Background: I recently (April) married my British husband in the UK on a Marriage Visitor Visa.

I am back in the states, awaiting an October court case in which I am requesting permission to remove my daughter to the UK with me.


Question: My lawyer recently asked me if I needed to wait to obtain the Spousal Visa or would I be able to obtain it now. I went to the Border Agency site and could not see anywhere how long the Spousal Visa would be good for if I were to obtain it now. I think she is asking, could I apply for and (hopefully!) receive it now, while we are awaiting the trial, or do I need to wait until after the trial. How long is it good for once obtained?

I am not sure of the reason for this question but I think it has to do with just preparing all information for the judge.

Thank you all in advance.

This is what I'm reading:
you are married to a UKC,
your daughter is from a previous relationship and you are trying to get the custody needed to bring her to the UK, but the court date is in October.

Here is what I know, but I'm not sure it will help. A Spouse Visa is good for 27 months (have to be in the UK for 24 months to apply for ILR, but could apply for FLR if your visa ran out before that), but you need to provide anticipated date of travel, which is no more than 3 months in the future.

Your daughter (assuming she is not a UK Citizen, which your question implies) would also need to get a Visa and you are likely (read this as almost definitely) to be turned down for her visa until you have the documents saying you can take her. They are very, very cautious with children.

So the question doesn't seem to make sense, as it would not make sense for you to apply now and have your daughter apply in several months if you are planning on traveling together.

The comments below from 2farapart are also really good to remember, since the changes go into effect next week. My answers were for the current rules.

Does that make sense?

[2farapart]

Once you have your spousal visa, you can fly in at any time after the date of the visa.

The only point to bear in mind is that you have to live together in the UK for a number of years on your spouse visa before you can apply for ILR, but if your spouse visa expires before you've been together long enough to qualify for an ILR application (for example - if you arrived 4-5 months later), there's a possibility that you would need to apply for further leave to remain (FLR) to cover the period between your spouse visa expiry and the point at which you will have lived in the UK long enough to apply for ILR.

There are new rules and new timings coming in on 9th July meaning you will have to proceed through two spousal visas (30 months each) - adding up to a period of 5 years qualifying period for ILR. I don't know yet what 'grace' the UKBA might give under the new rules (under current rules, you can be 'absent' from the UK for up to three months with a chance of it not affecting your spouse qualifying period. Anything over usually meant the applicant would have to apply for FLR).

[AnAmericanInScotland]

Originally Posted by hayburner

bump... anyone? thanks :-)

Have you asked your attorney why?

The probationary spouse visa is for 27 months; if you apply before the 9th of July you will be covered under the rules now in force through-out your immigration path.

Pre-9 July application if granted will be 27 Months on the probationary. You can basically arrive 'whenever' during that time, but may have to apply for a Further Leave to Remain (FLR) so that you have lived in the UK for 24 months before you apply for the Indefinite Leave to Remain (ILR).

If you wait to apply until the 9th of July or after, there are new rules; one of them being that you have to apply for the FLR a couple of times during the probationary period to make it a five year period instead of 27 months before you can apply for the ILR.

There is a new financial requirement as well, with one child needing to be sponsored, the sponsor will need to prove he/she makes £22400 per annum. The Statement of Intent has the new rules listed-it's a long read, see the pdf links on the righ side of the page:

UK Border Agency | Family migration changes announced - updated

ETA: LOL, you guys type FAST!! When I hit reply there were no posts:lol

[nyclon]

The reason you haven't gotten any responses is that the rules are about to change on 9 July and people are still digesting them.

I am going to answer as if you are applying after 9 July with the new rules as I understand them. The spousal visa will be valid for 30 months after which it will have to be renewed for a fee for another 30 months. After 60 months of living in the UK with your spouse you can apply for ILR-indefinite leave to remain which of course requires another fee. If you delay entering the UK you may have to renew your spouse visa 3 times in order to fulfill the 60 month residency requirement.

Spouse visas issued before 9 July had 3 extra months on them giving you a cushion in which to enter and satisfy the probationary period. Under the new rules this might also be the case, i.e. the visa is issued for 33 months rather than just 30, but I can't don't know that for sure.

[hayburner]

ahh yes, ok. I hear what you are (all) saying. Where I would be applying for my daughter at the same time, and where it would need to be after I have obtained clear permission from the court, I really cannot apply yet.

As far as asking my lawyer why, I just met with her Tuesday and she is on vacation, but as I mentioned, it's probably to just make sure we are informed so that if we are asked these questions by the judge we know the answers. I do not think she was suggesting I go out and apply now.

As far as the rules changing on July 9... even if I were applying alone there would be no way I could get the proper documentation organized and in order to mail in by that time. I will just have to wait until the new rules are implemented. If and only if I win the court's permission in October, I will apply under the new rules.

Thank you all.

Follow up question:

According to how I am reading the information here:
UK Border Agency | Children of British citizens and settled people

is it possible that even with court approval from the US, that the UK could refuse my daughter's visa? Or am I misinterpreting it. Thanks. :-)

[2farapart]

We've seen many different and mixed results with cases.

One applicant was refused because she didn't have a court paper with permission from the father to bring children to the UK. Another applicant was refused because she had a signed and notarised statement from the father giving her full permission (the bizarre argument was that because the father had willingly signed this paper, he clearly still had some connection with the family and so the daughter's visa was refused - most odd). The results were from different countries.

It's not terribly clear cut and there are no guarantees, so it's rather difficult to advise; the UKBA is particularly careful about cases involving children from prior relationships because there have been cases of children removed without permission of the other parent. You have to prove sole responsibility for the child, which hopefully your lawyer will assist with.

[Joppa]

You can try applying for your spouse settlement visa before 9th July without including your daughter, and then to apply for her visa after you obtain the court order. The good thing about this option is if you are successful in getting your visa before the cut-off date, your probationary period remains at 2 years. Your daughter, provided she is under 18, isn't subject to minimum residentiary period and can receive ILR at the same time as you. I haven't scrutinised the new rules so can't say 100%, but this is how the rules used to work.