Provisional visa now or indefinite leave to remain later?

December 2, 2010 9:27 AM

YANMImmigrationL: Should I apply for UK provisional visa as a spouse now OR apply for indefinite leave to remain in 8 months based on residency? With the new immigration caps coming into effect next year I'm not sure what is the best choice. Snowflakey details inside.

I am currently living in the UK under a work permit. I will hit my 5 year residency next September, in which case in August 2011 I can qualify to apply for indefinite leave to remain.

I married a UK citizen a few months ago so I can also apply now for a spousal visa, which will give me a provisional extension of 2 years. After the 2 years I could apply for the indefinite leave to remain or British citizenship.

The info on the immigration cap next year is not clear about how it applies to people who already live/work in the UK. If it will impact me, then it seems like a no brainer that I apply for a spousal visa asap.

I do not have a pressing desire to work elsewhere, so 8 months on my current work visa is manageable, but am I taking a risk by delaying my application to next fall when the cap comes into affect?

I cannot apply for provisional now and "change tracks" in 8 months.

posted by like_neon to Law & Government (2 answers total)

Applying for the spousal visa will cost you more money than waiting and going for ILR. However, spousal visas are subject to EU human rights law - if you're married and a spousal visa (aka an FLR) is denied, you have the right to appeal because you are being kept apart from your partner. There's a slim but non-zero chance that if you went for ILR after five years on a work visa you might be rejected with less grounds for appeal. However, I may be wrong and the EU rules may apply since you're married, regardless of visa status.

I also may be wrong on this, but I believe that you may be able to go Spousal Visa > Citizenship rather than Spousal Visa > ILR > Citizenship, since you've been in the country more than three years. You should call up UKBA and ask them.

Also, get thee to UK Yankee - they're incredibly helpful with this sort of thing.
posted by Happy Dave at 9:55 AM on December 2, 2010

The info on the immigration cap next year is not clear...

You're right. My organisation's allowance of sponsorship certificates for Tier 2 migrants has been reduced to 1 under the interim arrangements, from 10 before. I have three existing overseas staff who will need new sponsorship in the next 12 months, and I'm currently being told that these certificates have to come out of my interim allowance. Three into one doesn't go... If that's correct, I will have to send two home after four years working in the UK. I cannot believe that was ever the intention of the legislation and I confidently expect clarification presently.

I'm not an expert on spousal visas but if you will need "re-sponsoring" by your employer before your five years is up I would urge you to go that route if it is open to you. However, if your current work permit gets you through to the five year mark, I think you'll be fine.
posted by genesta at 10:46 AM on December 2, 2010