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Sponsor's absence from UK during initial period of residence

Sponsor's absence from UK during initial period of residence

Old Jul 18th 2016, 3:04 pm
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Default Sponsor's absence from UK during initial period of residence

Good afternoon, I hope that I can benefit from the depth of knowledge that I have found on the forum so far !

My question concerns how much time the sponsor (of a non EU spouse) can be out of the UK during the initial 33 month period that the spouse has to reside here. The situation is as follows:

- I am British, my wife is Chinese
- We successfully applied for a settlement visa and moved to the UK in early April this year
- My wife's initial period of residence therefore expires in December 2018, at which time our plan is naturally to apply for FLR, followed by ILR at the end of the five year period
- Our plan was to reside here permanently, so I have been networking with a view to finding employment or other regular income in the UK and my wife has been investigating professional and study opportunities.

So far so good.....but suddenly, completely and totally out of the blue, I have been head-hunted for a position in Shanghai. I am still at an early stage in the discussions, but I am already concerned as to the implications for my wife's FLR application in 2.5 years' time. The worry is that, if I am hired for this position, I would be based in China and so I would only be back in the UK for 5 weeks' annual vacation, plus possibly some additional time if I were to be in Europe on business (I should mention that the employer is EU based, not British).

We have investigated on the forum how much time my wife could spend in China if I were to be based there (not more than 180 days in any one year and not more than 450 days during the initial 33 month period, if I have understood correctly), but we are worried that if I were to be based more or less 100% of the time in China, probably with a contract only with a non UK employer, this might seriously jeopardise our FLR application.

Normally, I would not even consider this opportunity, since our plan was to live and work in the UK and not return to China except for holidays. The "problem" is that the package on offer is so enticing that my wife and I both feel that we should consider it...money is not everything of course, but this opportunity is on the face of things hard to turn down. That said, I don't want to find ourselves back at square one at some point, having to reapply from scratch for a settlement visa.

I would appreciate any advice on the risks of my wife's FLR being refused in these circumstances.

Thanks very much in advance.
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Old Jul 18th 2016, 6:07 pm
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Default Re: Sponsor's absence from UK during initial period of residence

You are asking a question which, for most of us on this forum, cannot be answered definitively. (Maybe an immigration lawyer would be able to).

You wife is in the UK based on you working and residing in the UK - she has no other eligibility for being there. If you were to apply for a spouse visa for the UK with you working and living in China and being paid by a European company the visa would not be issued.

If I were you, I would take a look at the FLR (M) form which you would need to complete at the end of the first 2.5 spouse visa period.

It asks for a lot of information regarding the sponsor's employment and residency; does the applicant currently live with the sponsor, if not, why not, where does sponsor live? You get the picture. The answers would quickly show that the sponsor is not residing or employed in the UK.

Would this put the application in jeopardy? probably ?..........
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Old Jul 18th 2016, 11:35 pm
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Default Re: Sponsor's absence from UK during initial period of residence

You need to be "present and settled" in order to sponsor your wife for her spouse visa. If you're living in China on a full-time basis (i.e. longer than six months) then you would obviously not be fulfilling this requirement. If you feel the opportunity is too good for you to give up then by all means take it but your wife would need to accompany you for the duration of your stay in China and you would need to start the immigration process for the UK from scratch when the contract is complete.
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Old Jul 19th 2016, 9:17 am
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Default Re: Sponsor's absence from UK during initial period of residence

@SanDiegogirl, @BritInParis: thanks very much for your replies. When we applied for the initial settlement visa, I was based in China and had no UK presence at that time, but it seems that the situation is different for FLR.

I was therefore thinking about the following points:

1. If I could persuade the employer to give me the contract from a UK subsidiary, who would then post me to China, would this make any difference?

2. If I took the contact for (say) one year or 15 months on a continuous basis and were to be in the UK the rest of the time, would this be acceptable?

Thanks very much for your kind help.
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Old Jul 19th 2016, 10:27 am
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Default Re: Sponsor's absence from UK during initial period of residence

Originally Posted by DernierVirage
@SanDiegogirl, @BritInParis: thanks very much for your replies. When we applied for the initial settlement visa, I was based in China and had no UK presence at that time, but it seems that the situation is different for FLR.

I was therefore thinking about the following points:

1. If I could persuade the employer to give me the contract from a UK subsidiary, who would then post me to China, would this make any difference?

2. If I took the contact for (say) one year or 15 months on a continuous basis and were to be in the UK the rest of the time, would this be acceptable?

Thanks very much for your kind help.
Please read the post from BritinParis, and from that you would NOT pass the residency test, and as your wife's visa is based on YOUR residency you would be in breach of visa requirements. If the job is really to good to pass up, then I suggest you give up on the spouse visa and restart the application when you will be living in the UK.
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Old Jul 19th 2016, 9:46 pm
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Default Re: Sponsor's absence from UK during initial period of residence

Originally Posted by DernierVirage
@SanDiegogirl, @BritInParis: thanks very much for your replies. When we applied for the initial settlement visa, I was based in China and had no UK presence at that time, but it seems that the situation is different for FLR.
The requirements are the same - that you were either already present and settled in the UK or were being admitted on the same occasion for settlement.

I was therefore thinking about the following points:

1. If I could persuade the employer to give me the contract from a UK subsidiary, who would then post me to China, would this make any difference?
The only exceptions in the legislation are for sponsors in HM Forces (e.g. military personnel serving abroad) or specified government departments or organisations like the Diplomatic Service and the British Council.

2. If I took the contact for (say) one year or 15 months on a continuous basis and were to be in the UK the rest of the time, would this be acceptable?
Unfortunately not.

Thanks very much for your kind help.
You are welcome.
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Old Jul 20th 2016, 3:25 pm
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Default Re: Sponsor's absence from UK during initial period of residence

@BritIn Paris: thanks for your clear replies, may I trouble you with some related questions (based of course on the assumption that the current rules and current practice remain unchanged)?

In the worst (or best, depending on how you look at it) scenario, my new position will take us beyond the date where we would otherwise have applied for FLR for my wife. In such a situation, do we just allow her status to lapse, or can we actively take steps to inform the authorities that we will not apply for FLR, explaining why? I am thinking about what would happen if we were to reapply from scratch at a later date and whether our application would be regarded less favourably if we had not kept the authorities informed.

On the other hand, the new post might only last for a couple of years, ending before the FLR application. In your experience, would it be possible/desirable to start a fresh application from scratch immediately prior to or immediately after the expiry of her current status?

I appreciate that this is all conjecture, but the China opportunity is a real headache for us and we are trying to get to grips as far as possible with all the implications.

Many thanks in advance.
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Old Jul 20th 2016, 9:11 pm
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Default Re: Sponsor's absence from UK during initial period of residence

Originally Posted by DernierVirage
@BritIn Paris: thanks for your clear replies, may I trouble you with some related questions (based of course on the assumption that the current rules and current practice remain unchanged)?

In the worst (or best, depending on how you look at it) scenario, my new position will take us beyond the date where we would otherwise have applied for FLR for my wife. In such a situation, do we just allow her status to lapse, or can we actively take steps to inform the authorities that we will not apply for FLR, explaining why? I am thinking about what would happen if we were to reapply from scratch at a later date and whether our application would be regarded less favourably if we had not kept the authorities informed.

On the other hand, the new post might only last for a couple of years, ending before the FLR application. In your experience, would it be possible/desirable to start a fresh application from scratch immediately prior to or immediately after the expiry of her current status?

I appreciate that this is all conjecture, but the China opportunity is a real headache for us and we are trying to get to grips as far as possible with all the implications.

Many thanks in advance.
Providing her visa (actually it will be her Biometric Residence Permit) remains in date then you can both return to the UK at the end of your contract but as your wife won't have spent enough time in the UK to qualify for FLR then she will need to apply for another 'initial' Leave to Remain BRP as your spouse but she will be able to do so from within the UK.

If it expires whilst you are both still in China then you would need to start the process again from scratch from there.

In either scenario you don't need to inform the Home Office. You just make the relevant application based on your circumstances.
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Old Jul 21st 2016, 9:17 am
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Default Re: Sponsor's absence from UK during initial period of residence

Originally Posted by BritInParis
Providing her visa (actually it will be her Biometric Residence Permit) remains in date then you can both return to the UK at the end of your contract but as your wife won't have spent enough time in the UK to qualify for FLR then she will need to apply for another 'initial' Leave to Remain BRP as your spouse but she will be able to do so from within the UK.

If it expires whilst you are both still in China then you would need to start the process again from scratch from there.

In either scenario you don't need to inform the Home Office. You just make the relevant application based on your circumstances.
Thanks very much for your explanation, it is interesting that my wife could apply for "initial" leave to remain again from within the UK, since I always thought that you had to be in your home country.

May I trouble you with a follow up question on this approach? I guess that if we applied from within the UK, but didn't get approval before the expiry of her BRP, we would have to leave the UK. How would we then get the papers, since I suppose on the application we would have to give our UK address?

Thanks again for your time and trouble.
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Old Jul 21st 2016, 4:35 pm
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Default Re: Sponsor's absence from UK during initial period of residence

Originally Posted by DernierVirage
Thanks very much for your explanation, it is interesting that my wife could apply for "initial" leave to remain again from within the UK, since I always thought that you had to be in your home country.
That would depend on the applicant's immigration status in the UK. You cannot switch from a visitor visa/stamp to a spouse visa for instance but you could from many of the Points-Based System visa types (work, student, working holiday, etc..)

May I trouble you with a follow up question on this approach? I guess that if we applied from within the UK, but didn't get approval before the expiry of her BRP, we would have to leave the UK. How would we then get the papers, since I suppose on the application we would have to give our UK address?
That is not correct - your wife would be able to remain in the UK until a decision is made on her application.

Thanks again for your time and trouble.
No worries.
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Old Jul 22nd 2016, 8:16 am
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Default Re: Sponsor's absence from UK during initial period of residence

@BritInParis: thanks again for your kind follow up. I feel a bit embarrassed troubling you yet again, not to mention boring the readers of the forum with such a specific thread, but here goes !!

If we were to reapply from within the UK before the expiry of my wife's current BRP (which may be an option for us to consider, taking the possible length of my posting into account):

- would we have trouble completing the forms given that my wife would be in the UK already? I had a quick look at our copies of her previous application and I am wondering how to show her permanent address (UK?) and how to deal with the fact that she would not have a date to enter the UK...etc.

- as regards the time to process her application, I was interested to see that she could stay in the UK beyond the expiry date of her BRP. I assume however that after the expiry date, she could not leave and re-enter the UK until the new settlement visa had been granted....Also, if she were working (again, a real possibility), would she still be allowed to do so during this interim period?

I know that these are detailed points that are well into the future, but the possible change in our circumstances has dropped a real bombshell into our planning and so the more detailed information we have, the better we can decide what to do.

Thanks again.
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Old Jul 23rd 2016, 11:27 pm
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Default Re: Sponsor's absence from UK during initial period of residence

Originally Posted by DernierVirage
@BritInParis: thanks again for your kind follow up. I feel a bit embarrassed troubling you yet again, not to mention boring the readers of the forum with such a specific thread, but here goes !!

If we were to reapply from within the UK before the expiry of my wife's current BRP (which may be an option for us to consider, taking the possible length of my posting into account):

- would we have trouble completing the forms given that my wife would be in the UK already? I had a quick look at our copies of her previous application and I am wondering how to show her permanent address (UK?) and how to deal with the fact that she would not have a date to enter the UK...etc.
To clarify my previous comments, your wife would still be completing Form FLR(M) however the time she would had spent in the UK would be insufficient for her to be eligible to apply for Indefinite Leave to Remain at the end of the second 2.5 years so you at that point need to applying for Further Leave to Remain again.

- as regards the time to process her application, I was interested to see that she could stay in the UK beyond the expiry date of her BRP. I assume however that after the expiry date, she could not leave and re-enter the UK until the new settlement visa had been granted....Also, if she were working (again, a real possibility), would she still be allowed to do so during this interim period?
You would need to send in your wife's previous BRP if you were applying by post so she wouldn't be practically leave the UK during this time but she would be able to continue working until a decision was made on her application. To avoid any problems I would recommend either applying by post as soon as the rules permit or stumping up the extra money to pay for the premium one day service so that you get an instant decision and a new BRP straight away.

I know that these are detailed points that are well into the future, but the possible change in our circumstances has dropped a real bombshell into our planning and so the more detailed information we have, the better we can decide what to do.

Thanks again.
Always a good idea to make a long term plan. There are too many examples of people falling foul of the immigration system because they didn't think ahead.
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Old Jul 25th 2016, 9:45 pm
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Default Re: Sponsor's absence from UK during initial period of residence

@BritInParis: again, thanks for your time and your advice. May I trouble you again to double check if I have understood correctly?

Assuming, just for the sake of argument, that I am out of the UK from October 2016 to December 2018 (when my wife's initial entry clearance and BRP expire):

- since my absence in itself will prevent my wife from obtaining limited leave to remain, followed by indefinite leave to remain, she can be with me in China more or less when she wishes;

- prior to the expiry of her current leave to remain in December 2018, she will apply in the normal way for limited leave to remain for a further 2.5 years, just as if she and I had both been present in the UK 100% of the time;

- at the end of this further period, she will apply yet again for limited leave to remain for another period of 2.5 years;

- if we are based back in the UK for this second period, she can then apply for indefinite leave to remain.

In other words, the application in December 2018 can still take into account her UK salary (if she is working at the time) and even my UK salary, if I were to quit the China position and return to the UK. This seems to be less onerous than applying from scratch for initial entry clearance, whcih is what I initially thought would happen).

Thanks in advance for letting me if I have got this straight in my mind.
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Old Aug 13th 2016, 3:39 am
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Default Re: Sponsor's absence from UK during initial period of residence

Originally Posted by DernierVirage
@SanDiegogirl, @BritInParis: thanks very much for your replies. When we applied for the initial settlement visa, I was based in China and had no UK presence at that time, but it seems that the situation is different for FLR.

I was therefore thinking about the following points:

1. If I could persuade the employer to give me the contract from a UK subsidiary, who would then post me to China, would this make any difference?

2. If I took the contact for (say) one year or 15 months on a continuous basis and were to be in the UK the rest of the time, would this be acceptable?

Thanks very much for your kind help.
Hi there,
I couldn't help but notice that how similar my current situation is when you initially applied for initial settlement visa and therefore I was wondering if I could bother you with my question.

I am British expat and my wife is non EEA. My two most recent work has been in Papua New Guinea (ended in January 2016) and my current posting which is Dhaka. We were due to live here for 18 months. Having just arrived late July we now have been told by my employer that they are sending all family members out of the country following recent attack in Dhaka. I have decided to end my employment with them and currently considering applying for spouse visa for my wife and for both of us to move to the UK. I have no current employment offer but would use my savings to meet the financial requirement.

Given that you also applied for initial leave to remain for your wife while you were in China, may I ask you:

how did you meet the accommodation requirement? Did you rent a place in the UK while you were in China?

What documents did you provide? document checklist?

sorry to have written such a lengthy message but would really be grateful for any input you may have.
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Old Aug 13th 2016, 9:09 am
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Default Re: Sponsor's absence from UK during initial period of residence

@omario: interesting to read your message, not least because I have been many times to Dhaka on business (I was the Pan Pacific's best recognised guest at one point!).

To answer your questions:

1. We met the accommodation requirement by providing proof that we could stay with my mother, since trying to arrange rented accomodation at a distance would have been more or less impossible

2. These are the documents we provided to support our accommodation arrangements:

- letter from my mother confirming the number of rooms in her house and stating that my wife and I had her permission to live with her for as long as we wish. Letter was printed and then signed by my mother

- copy of my mother's passport details page (this copy was not certified)

- photos (20 in total) showing exterior views of the house and interior shots of every room

- copies of the purchase deeds of the house and also of the transfer of the property into my mother's name after my father's death. The copies were all certified by a solicitor, who also wrote a short letter explaining the certification process (the property is in Scotland)

- Originals of the latest council tax notice, electricity bill and telephone bill.

We did not provide an inspection report.

Hope that this helps, best of luck !
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