tootwiga

Hello

I have recently moved back from the US (have green card, 3 years there) to the UK. I have an above minimum wage day job and a bar job. My wife is 3 months pregnant, she is a US citizen. we expect her to give birth here.

I dont qualify under the rules for her to stay, as of the 9th July 2012 guidelines.. which also reject right of appeal, however, whatever law the tories decide to implement, it will have to comply with article 8, thats just a fact of law.

I am not moving her back here as a backdoor way to get us into the UK, I am from here, and want us to live here. I can support both of us, plus she is extremely highly qualified and will have no problems finding work once eligible.

any comments?

I do understand (rather weirdly) that if I go to ireland (or any other EU nation but the one I was born in) and get a job there, she can come and stay and we can live there without any hindrance because of EU law.

roaringmouse

I'm really unsure what comments you're looking for. You seem to have an understanding I'd the rules for spouses, and know the you don't meet the requirements under them. You're also aware of the EEA route, but that would mean your wife giving birth in whichever other EU country you choose.

Most people who have commented on this forum about the new rules do not agree with them, myself included. However it seems you are not eligible to sponsor for your spouse, and the EU rules are probably not appropriate if your aim is the UK, which leaves you with one option - return to the US (unless your wife is able to obtain a visa under a different route).

Unfortunately that's the reality of the new rules.

tootwiga

thanks, the reason I am asking is because I have had some advice that on the cutting edge (sources kept anonymous) the UK legislation will not stand because, as noted, by law it has to comply with article 8, and does not.. so really I was wondering if there were any immigration attorney/immigration experts who had an opinion on this. you do state

'Unfortunately that's the reality of the new rules.'

I'm not able to find out if these 'rules' are guidelines or legislation?

in short, just again for emphasis

'The trouble is that any legislative changes relating to Article 8 will have to conform with Article 8!'
will the courts wear this?

tootwiga

I should add, with all the business of moving, getting jobs, trying to get through the confusion, we didnt realise my wife was pregnant. she is here legally and will give birth within the remit of her 6 month visa.
our child will be british, born on british soil, her husband will be british and working. she also has some mental health issues, PTSD.
maybe i'll be the one challenging in court.

michali

This is the second post on this topic to which I have responded with the words "I am confused"! Are you saying that you do not qualify on the grounds that you do not have the required savings to enable your wife to be able to remain? Even though you are quite capable of maintaining both of you? I wonder if anyone realized the implications of the new rules. As I read some of the personal stories of UKC's wanting to return to the UK with their non EU spouse, my heart goes out to them.

Mummy in the foothills

Do they allow another family member in UK to help sponsor bringing up the income amount like the US do?
You'd be better to find a way to do her visa before the baby comes if possible as once the baby arrives the amount you need to earn rises, even if he/she is born in UK. Second job? Just for a while maybe?
Have you asked about on www.uk-yankee.com they may have an idea.

SanDiegogirl

So your wife is in the UK on the VWP program? This is what usually fits the description of a 6 month visa.

If so, are you aware that your wife has no recourse to the NHS (being a visitor in the UK) and you therefore may be asked to pay for pre-natal and delivery of the child?

roaringmouse

There will likely be challenges to the new rules, but it's a matter of the right challenge(s) being made, length of court process, and wait for any changes to be made by UKBA due to any rulings that require changes.

It will be a lengthy period before any changes might happen - for example when the minimum age for a spouse visa was increased to 21 it took 3 years before it was returned to 18 after legal challenge.

tootwiga

correct - shes here on a 6 month visitors visa.. and I didnt earn 19 000 prior to coming to the UK, no reason why I should if I can support her in the UK.
She came over to see how I was doing, we found out she is pregnant, there is no way I am letting her go back in that state, she is well into her second trimester.
the rules are outrageous and I am quite sure illegal. they do not comply with article 8, but its a tricky one, as the rules also appear to rule out appeal.

tootwiga

yes, this is why (ridiculously) we are thinking of moving to another EU country for a year. she would get full citizen status as my wife in any other EU country.

tootwiga

and again yes, but if she was a student, she would get access to full treatment. the whole thing is a farce.

JAJ

She would probably get some kind of permission to remain but will not have any entitlement to citizenship. Although she may be able to become a citizen of that country after meeting normal residence and other requirements, which vary greatly.

Is there any reason she did not get the right visa to live in the United Kingdom before moving? Since about 2003, it is not normally possible to arrive in the United Kingdom as a tourist and switch to another status in-country. There might be some limited exceptions (consult with an immigration lawyer) but these are not extensive.

Can she go back to the United States and apply for a spouse visa from there?

In addition, are you aware of how easy it will be to lose your green card and why this may not be a good idea for you long term, if you have an American child - you won't necessarily be able to live in the United States in future.

SanDiegogirl

As you must be aware, since you are a Green Card holder in the US, you need to have the relevant visa to live in a country permanently BEFORE you enter the country.

You say that you have returned to the UK, so you should have been aware that in order for your wife to join you permanently you had to obtain a spouse visa for her.

This you appear not to have bothered to do, and are now complaining about the current immigration rules.

You appear to be using your wife's pregnancy as some sort of 'reason' as to get around the rules.

WEBlue

No, the new rules do not allow for third party support or help. Applicants like Toowiga's wife (coming from outside the UK) can ONLY use Tootwiga's salary and/or the couple's savings to meet the new threshold.

Tootwiga, your child will be British even if born on foreign soil, and will not raise the threshold amount required for the settlement visa. (I just wanted to be sure you realise that.)

roaringmouse

I don't think we have enough information to determine that - we don't know if the OP is British otherwise than by descent or British by descent.