TanyaB

Hello all! I'd appreciate any advice/insight you could offer for my situation.

I am a US citizen, currently on my second FLR(M) partner visa (after the first partner visa, a post-study visa, and a student visa). My only entry clearance was September 2007. I am now eligible for settlement/ILR, if I take the Life in the UK test, but I'm not sure if it is worth the time/money investment.

We plan to move to the US in March for about 3 years and are well through the US visa process. However, even with frequent trips back to the UK, I know that during this time I would lose my ILR status. I'm not sure how they keep track of how long I am gone, but I assume there is a method!

When I went for the second extention of stay FLR(M), a worker at the PEO office said that we should still go for the settlement, and apply as a returning resident from the US after three or four years. She seemed to think the process would be simple and that I could go through the UK Embassy in the US and this extra, immediate cost would be an investment. Otherwise, I'd have to reapply for visas under the new rules before returning, which would be costly and mean a five year wait for settlement.

However, I'm just not convinced that I would be re-granted settlement as a returning resident when we move back. I've been Googling for days and 'returning resident' status seems to be a mystery! We will, at that point, have probably been in the US for 3.5 years, been married for over 4 years, and have lived together during our time in the US.

JAJ

Wouldn't it be simplest to get ILR and then apply for British citizenship?

If you already have 3 years legally in Britain and you are the spouse of a British citizen, you can normally apply for naturalisation as soon as you have ILR.

TanyaB

Thanks for the reply. We were only married in March 2012, so I'd have to wait three years from then (or since ILR -- not sure).

I'm desperate to return to the US (albeit temporarily) for family reasons. Plus we're nearly done with the US spouse visa, so there's really no turning back!

I just find it odd that the officer in the Croydon PEO seemed to think returning residency was simple.. but that everyone on the forum thinks it is difficult. Wanted to see if anyone had any experience with it.

JAJ

Not true! To apply for British citizenship under the 3 year residence rule, there is no need to have been married for the 3 years. Nor do you have to have had ILR for the 3 years.

Also not true. There is always a choice involved. However, you should also know that naturalisation applicants who are not married to a British citizen are not obliged to continue to intend to live in Britain. It is often possible, if necessary, to complete the process after moving outside the U.K.

Did you look at the naturalisation requirements on the Home Office website?

The two key things to remember with ILR is that Britain should be your "home" and that if a single trip exceeds 2 years, you need returning resident entry clearance. It's not hard to keep ILR active in the short term after leaving but longer term, you will be questioned on whether you really are living in the United Kingdom or not. Returning resident entry clearance allows your ILR to be kept even if a single trip exceeds 2 years.
http://www.ukba.homeoffice.gov.uk/vi...ing-residents/

Especially in the light of the new restrictions on spouse visas, I would at least get ILR. But really, you should be thinking in terms of British citizenship.

TanyaB

I actually did go through the entire naturalisation guide and form this morning. I suppose I didn't read the 5 year / 3 year (below) properly:
"Enter the day you first arrived with a view to staying in the UK on a long-term basis, and the airport or seaport through which you then entered. If this is less than 5 years before the date on which we receive the application, or less than 3 years before this date if you are married to or the civil partner of a British citizen, you might not meet the residence requirement (see pages 4 and 5 of the Booklet AN) and your application may be unsuccessful."

I realise this is a digression from my initial question, but if there is a chance of getting citizenship that quickly.. you're absolutely right, I need to go for that.

"The day you first arrived with a view to staying in the UK" would certainly be when I went for my Post-Study Visa, but I know that this period doesn't count toward settlement. If I understand correctly, my clock started on 1 October 2010?

My timeline is as follows..
Student visa (1 year) - Sept 2007
Post study visa (2 years) - December 2008
Unmarried partner visa (2 years) - October 2010
Spouse visa (2 years) - August 2012

Thank you sooo much for taking the time to reply. This could change everything.

JAJ

The rules about what time "counts" are different for naturalisation compared to settlement. Once you have settlement, then you look at the rules for naturalisation and under the 3 year rule, any legal presence in the United Kingdom counts.

So if you arrived in 2007, and get ILR in 2012, then as long as you were legally in Britain all this time, you can apply for naturalisation immediately after getting ILR.

One trap to be aware of. You have to have been physically in the U.K. on the exact date 3 years before you apply for naturalisation. So if, for example, you spent the month of October 2009 in the USA on vacation, you would not be able to apply for naturalisation during October 2012.

TanyaB

I called the UKBA helpline today to confirm, and the representative said that it was 3 years from when I was granted leave as a partner and that my time as a PSW doesn't count.

I know that the US helpline has given me completely incorrect information before, but it is a bit unnerving when the only 'official' support says that opposite of what you believe / want to be true!

JAJ

Calling the "helpline" was precisely what you should not have done. The answer they gave you is wrong.
Read the guide to naturalisation again - carefully. You should be able to see that any legal presence in the United Kingdom counts towards the 3 years.

Unfortunately helplines get it right less than 50% of the time.
If you read the instructions/guidance on the website they are about 90% right.
To do better than that you have to start reading the legislation itself + the policy manuals.

TanyaB

Lesson learned.