Fair Lady

Hello Everyone!! I just joined today and I have been reading so much on here which has been so helpful. But also very overwhelming. I realise that there is much to learn and would certainly appreciate any help and advice you can offer.

Our family is one of the many who are struggling to return to the UK because of the new law. I am British, husband is american, three children have UK passports but three are adopted (we have 6 kids altogether). Our three adopted children do not qualify for UK Citizenship because they were not adopted under the hague convention. All six have US passports and are citizens here.

We have lived in the UK for 8 years out of the 17 we have been married. My husband was issued with ILR in 2000 but I realise that it is now invalid because we have been living here in the US for 4 years. I have read on here that it does not matter if he visited every year since leaving the UK (which he has) because the ILR is automatically invalid after two years. My husband was also in the process of obtaining his UK citizenship when we were living there but he did not complete it. He took the Life in the UK test, passed and never went any further much to our regret now that this new law has been passed.

I have also been reading about the Surinder Singh route and possible options out there. I read somewhere that the Returning Resident application is not a successful option, is that correct? From my perspective right now, it seems almost impossible to return home but I have hope that there must be a way and I am trying not to get discouraged. I am really new to all this and would really appreciate any advice or suggestions anyone here may offer.

I look forward to learning more.

JAJ

1. You should normally be able to register your 3 adopted children as British, as long as application is made to the Home Office before they are age 18. Read guide MN1, especially page 14.
https://www.gov.uk/government/upload.../MN1-guide.pdf

2. Recommended to consult with an immigration solicitor to see if your husband's ILR is invalid or not. As I understand it, ILR is not automatically invalidated in the circumstances you describe. Immigration may invalidate it if admission is sought as a visitor, but may not necessarily do so. ILR is not supposed to be used as a visitor visa, but sometimes it is. Ask the Law Society for a list of accredited immigration practitioners. And before you spend any time and money on a consultation, ask if the practitioner has successfully handled any returning resident/ILR abandonment cases.

3. Really, in hindsight it looks like it was not the best decision for your husband to abandon the process of becoming a British citizen when he was eligible. So, assuming you have a green card, what's your plan? Do you intend to become a U.S. citizen or not, and if not, what's the intention regarding your green card.

Fair Lady

Thank you for your response. I have read other comments that you have posted in similar threads and respect your advice.

Is it possible that my application to register my adopted children might be denied? I have bookmarked this form and planned to register them after reading about it but then I thought I had read about someone on here who tried to do the same and was denied. Have to go back and find where I read that.

Thank you also for your advice about ILR. My husband has talked to someone in Croydon and explained the situation about ILR. He was informed that as long as he has visited within the two years that he should not have a problem returning on his ILR. This does not make sense to me and from what I have read, it appears that it is invalid. He was told by the same officer that the law states he can but it is really at the discretion of the IO. It is certainly not a risk we want to take and so my husband plans to ask an IO when he travels there for work in the very near future. However, I do believe that my husband did not present his ILR at each visit but was stamped as a visitor and I think this makes a huge difference, is that correct? Sadly we were not very well informed about these matters and wish we knew then what we know now.

In hindsight, yes we are kicking ourselves regarding his citizenship. Very foolish indeed. Regarding US cit. for myself, I do intend to apply for it. I have had three green cards because each time I left the US, they also became invalid and were taken from me and upon our return to the US each time, I had to apply for a new one. I would like to avoid that in the future although I do not have any intention of returning here to the US again.

Would you or anyone else be able to advise me on a reputable immigration lawyer to use please?

Thank you again.

JAJ

Nothing is ever guaranteed. However if it was a formal adoption under USA law then application for registration as a British citizen would normally be granted. If you need further evidence, then perhaps read Chapter 9 of the Home Office Nationality Instructions, which a Home Office caseworker will use to decide the application. Section 9.8 deals specifically with adoption cases. https://www.gov.uk/government/upload...2/chapter9.pdf

When the Home Office say "normally" then they mean they will register, unless there are some exceptional reasons why they should not. These are unusual situations. One individual on this forum has reported a problem, was this the thread you had in mind:
http://britishexpats.com/forum/showthread.php?t=765799

These were international adoptions so perhaps there is a complication that we were not told about. Or perhaps it was simply an incorrect decision that could have been handled by an appeal and/or re-application. Since the individual concerned never came back to tell us the final outcome, we don't know. Were your children born in the United States, or did you adopt from another country?

One thing is very clear. If you choose not to make an application, the probability of success becomes precisely 0%.


It's not what "makes sense" to you, but what the law says. And not only the law, but also the policy and enforcement culture that underlies it. Many people do keep ILR for a long time when outside the U.K., by making frequent trips (within 2 years) and as long as they are admitted for settlement every time, then they keep it. Always at risk of having it removed, if the Immigration Officer decides that they are not really settled in the U.K., but this is not enforced universally. If he was admitted as a visitor, then it may well have invalidated ILR - but you should check this with an immigration solicitor before making any assumptions.


Are you really telling us that you had to apply for spouse immigration three times? That must be a record on this forum. How did that occur?

Firstly, a green card is only evidence of Lawful Permanent Resident (LPR) status. It's not LPR status itself. Secondly, LPR status can be lost by ceasing to have a U.S. residence, but it's not an automatic process. An individual only ceases to be an LPR when he or she files an I-407 to formally abandon status, or when an Immigration Judge rules that loss of LPR status has occurred.

For example, see this recent discussion. The strategy is not recommended, by the way (U.S. citizenship is the only way to secure a right to return) but shows that losing LPR status is not as automatic as many people assume.
http://britishexpats.com/forum/showthread.php?t=823554


No specific recommendation, but you could try http://www.lauradevine.com
Otherwise, you need to contact the Law Society (one for England and Wales, one for Scotland and another in Northern Ireland) for a list of accredited immigration practitioners and start to make a selection from there. Principles to keep in mind include but are not limited to:

- You will be wasting time if you choose a solicitor who has not got specific experience of handling returning resident cases;
- you need to be prepared to pay for advice in writing under a formal client relationship. A short phone call won't normally do, unless it's simply to conduct an initial case assessment and decide if you want to engage that practitioner or not.

Fair Lady

Thank you again JAJ. You certainly are well educated, did you work in immigration? I will follow your advice and register the children at least. Is it expensive? The thread you shared is the one I had seen and I would love to know her outcome also and if she was able to get her adopted children registered. I have one child from China and two from Uganda. China is a Hague country but Uganda is not and therefore they do not qualify for UK passports. At least this is what I was told when I spoke to someone last in Durham.

It is strange that I had to reapply for green cards. The second time, I went through the entire procedure again, a physical, chest x-ray and interview and of course the cost involved. The third time I was informed at the US Embassy in London that I was entitled to keep my green card the whole time and did not need to go through this process again so they kept it simple for me that time.

Is there anyway of knowing how long it would take to complete the US cit? I live in NC and have read it really depends upon which office an applicant uses. I heard best case was around 3 months and that is usually takes 9-12 months. I am afraid of starting the process and realising say 6 months down the road, that we would need to postpone moving back home because we are waiting on the completion of this. I would not want to leave at that point and make the same mistake with the UK cit. for my husband.

I will also check out the lawyers. Thank you for this advice also. Hoping we make the right choice and find someone who will be able to help.

Grateful,
Fair Lady

Vadio

Just looking at what your husband was told, and what you have stated: "as long as he has visited within the two years"....

That part is correct - in the initial 2 year period, starting with the date he left the UK as 'settled', the ILR is still valid to return for settlement purposes. If the IO asked if he was returning for settlement and he said yes, then likely he would have been stamped in. Alternatively, if he said "just visiting for 2 weeks" or something similar, and it was past the 2 year mark, the IO would have likely stamped him in as a visitor. AND.....once you are stamped in as a visitor (and you can tell from the stamp), the ILR is invalidated. That 'visitor stamp' becomes his visa.

I applied for a 'returning resident' visa in 2011 and was refused. One of the reasons give was that I had not been 'present and settled when I last left the UK'. Technicality, yes, because I had visited after the 2-year mark, truthfully answered all questions, and got the visitor stamp. Whatever claim I might have had to ILR was gone at that point. I re-applied for a spousal visa under the old rules, took the LIUK test, and got ILR again 2 months later.

Some of those who say they retained their ILR may have have been less than truthful when questioned by the IO. Or perhaps just lucky.

You can't go back - what's done is done, so look at what you need to do under the current rules. In the end, far less stressful IMHO.

You've also stated that your husband is traveling to the UK for work. That's another potential mine field, as he can't work as a visitor. Without knowing the specifics, I'm assuming that base is covered, but if not, the IO could rightly refuse him entry.

JAJ

Although if absence from the United Kingdom is genuinely for a temporary purpose, such as work or study outside the U.K., then as I understand it, it's acceptable to state that one is returning for settlement. Although legal advice would still be recommended if this is the plan.

Vadio

As I understand it, as long as you are within the 2-year window, it's rarely an issue. You can "visit" or return for settlement, but the key is, actually returning for settlement.

BUT - each time you visit, the 2-year clock does not reset. For example, if you visit for a couple of weeks during the last month of your 2-year window, that does not give you another 2 years. And remember with all the biometrics and passport scanning, the IO has access to records of coming and going. The real danger is lying to an IO - that can get you barred from entry.

JAJ

Fees for registration as a British citizen:
https://www.gov.uk/register-british-citizen

So they're international adoptions ... do they have Certificates of Citizenship to prove they are American citizens? Passports are not sufficient evidence of U.S. citizenship, especially in adoption cases. Nor are any substitute birth certificates issued by a U.S. state.

If they've not got citizenship certificates, then you may apply to U.S. Citizenship & Immigration Services:
http://www.uscis.gov/n-600

You spoke to the Passport Service in Durham. They don't deal with the granting of British nationality - only the issuance of British passports to those who already have British nationality. So not the best place to get nationality advice ...

Even if China is a Hague country, and all Hague Convention formalities have been complied with, you're not resident in the U.K. or a British territory, so there will be no automatic acquisition of British citizenship.

As a result, all your children need to be registered as British under section 3(1) of the British Nationality Act, before they are age 18.

Another Home Office Nationality Instructions document to refer to is the one on Adoption:
https://www.gov.uk/government/upload...4/adoption.pdf

Both China and Uganda are on the "designated list" that applies to adoptions completed before January 3, 2014. In addition, if the adoption has been recognised in the United States, you could include that as evidence. Were the adoptions completed in China/Uganda, or were they formally adopted (or re-adopted) under United States law?

A competent immigration solicitor may be able to help you work through these Home Office requirements, but in general, as long as their adoption is recognised in the United Kingdom, they should be eligible to be registered as British citizens.

Out of interest, what would be the difference between abandoning an application and deciding never to apply in the first place? In terms of outcome - none. In other words, if you want to become a U.S. citizen you need to make the application and complete the process before you leave the United States. The process will take whatever time it takes.

You can look at processing times at this USCIS link, however they are only an indicator of what's happened in the past and every case is different.
https://egov.uscis.gov/cris/processT...C9RCyFagQNRyeu

To find a USCIS field office: http://www.uscis.gov/about-us/find-uscis-office
There are two offices serving applicants for citizenship in North Carolina (Charlotte or Raleigh) depending on county of residence.

In addition, if your husband cannot recover his ILR status (check with solicitor) and if, (as you suggest) he does not qualify for a spouse visa, then you may not be moving to the United Kingdom in the immediate future. Unless he can somehow qualify for a visa on his own merits, such as a working visa, or if he is by some chance eligible for the citizenship of another European Economic Area nation.

formula

I noticed that too. As said, no working allowed on a visitor visa, even if he is getting paid by a company outside of the UK, or not getting paid at all.

As mentioned, can your husband get a company in the UK to sponsor him on a Tier 2 (General) visa? This visa is now limited to 6 years stay in the UK, but he could get ILR after 5 years.

Is he coming to the UK to work for a UK branch of his US company? If yes, has he been working with them for a year? Will they sponsor him with a Tier 2 ICT (Inter Company Transfer) visa? Although this visa doesn't lead to settlement, once he is legally working in the UK, his salary could go towards you being able to sponser him on a spouse visa.

JAJ

Except that visitor status also includes short term business trips. Although every case is different, it is unlikely that these would be construed as "working".

formula

I thought that a business visitor visa was needed for short business trips?

https://www.gov.uk/browse/visas-immi...rt-visit-visas

General Visitor visa

Apply for a General Visitor visa if you're coming to the UK as a tourist - eligibility, documents required, how to apply or extend

What you can and can’t do

You can study for up to 30 days, as long as it’s not the main reason for your visit.

You can’t:

take paid or unpaid work
live in the UK for long periods of time through frequent visits
marry or register a civil partnership, or give notice of marriage or civil partnership
get private medical treatment
get public funds







Business Visitor visa

Apply for a Business Visitor visa to work in the UK for a short time - eligibility, documents required, how to apply and extensions

What you can and can’t do

You can:

carry out the permitted activities related to your job as described in your visa application as long as you’re employed and paid by an overseas company
study for up to 30 days, as long as it’s not the main reason for your visit

You can’t:

take other paid or unpaid work - you can only do the permitted activities described in your visa application
live in the UK for long periods of time through frequent visits
marry or register a civil partnership, or give notice of marriage or civil partnership
get private medical treatment
get public funds




I assume that as a non-visa national, he could just ask to be let in on a short term busines visa at the border, as long as he complied with the Business Visitor Visa rules?

JAJ

That is correct. U.S. citizens and other non-visa nationals do not normally need a visa for short term business trips to the United Kingdom.

Fair Lady

I don't have time to respond to some of the other suggestions right now so will come back later but I did want to just clarify that my husband DOES NOT WORK IN THE UK. Sorry for the misunderstanding .

He is stopping off in the UK as a layover to see my Mum who is very ill before continuing to his next destination for work. He works for a US humanitarian non-profit organisation which means that he travels much of the time and especially to Israel. He has never entered the UK stating that he planned to settle there again but always as a visitor, so based on the comments here, we are assuming that his ILR is invalid but will certainly be asking a lawyer.

Thanks, hope that makes sense.

Vadio

You and your husband have been permanent residents of the US for 4 years. His ILR is no longer valid and has not been for 2 years. That's the 'long and short' of it.

Many, many folks have been in that exact situation. We went to the US so I could work after our income came to an abrupt end in the UK (long story). The alternative would have been to go on benefits. The reason we left - economic security - didn't matter one bit; I had been out of the UK for over 2 years, and that was that.

IMHO, your best bet is to spend your time and money on a spouse visa or pursue the Tier 2 visa option as others have suggested.

Edit: I'm not trying to be a meanie here, just realistic. If your resources are limited, IMO it's best to 'spend' them on the route that offers the highest likelihood of success. The UKVI will look at many things, including ties to the UK and to the US. In your specific case, having kids with no ties to the UK can easily tip the balance even if other points were equal. I wish you all the luck in the world and hope you find a way to be where you want to be.