Returning Resident Question

Michael - Just saw your latest post ... what you say is more in line with what I had thought.  As important as it is, I really don't think that we can afford a solicitor.  Is there someone you know of who we could call and just chat with for free?  (I know that "free advice" and solicitor are not often uttered in the same sentence.)

Not to mention, good luck finding one who will give you advice over the telephone.  Most solicitors will not.

pwill,

I am completely certain Jemima is wrong.

Have a look at this website, as well:

http://www.stonewall-immigration.org.uk/Briefing%20Doc.htm

The EU citizen sponsor possibility is mentioned there, as well.

I paid £1000s to my solicitor, so I am afraid I can't offer any consolation as regards solicitors giving free advice over the phone. Elle is right that they will not do so. Perhaps Stonewall Immigration group has a number you can call.

Stonewall Immigration also have a list of recommended solicitors in various parts of the UK and they helpfully indicate how expensive each is.

My solicitor was at the very top end - I myself am an American lawyer (but not an immigration lawyer) and he came recommended but he works in a very posh London firm.

Jemima,

Legal advice is ALWAYS warranted.

There is a difference between the EEA family permit and the UK unmarried partners' visa. The conditions for obtaining the latter are MUCH more strict. You are RIGHT that the EEA family permit is available only to married persons. However, I recommend that you review the IND instructions at

http://www.ind.homeoffice.gov.uk/default.asp?PageId=3994

which is how the Home Office applies the Immigration Rules.

Also, see

http://www.stonewall-immigration.org.uk/Outside%20UK.htm

which explains the visa application process from outside the UK as follows:

Partners of EEA nationals not already holding a UK residence permit, or partners of those in long-stay categories deemed as "leading to settlement" (work permit holders, ancestry visa holders) should complete form VAF1

Most categories are catered for under section 1 of this form, including a non-EEA dependant of an EEA national or the dependant of a person in a long-stay category.  Q 5.1 asks how long you intend to stay in the UK - As long as my partner/to be decided would be appropriate responses. Q 5.3 asks why you are going to the UK - To stay with my partner.

Both forms require you to confirm whether or not you have ever been refused permission to enter the UK or refused a visa before (for the UK or any other country). If this is the case, you need to give details of the previous refusal(s).

What documents do I need to submit with the forms?

You need to submit similar documents as you would for making an application in the UK (apart from two passport-sized photographs and six months worth of bank statements and pay slips, if working). British Diplomatic Posts have the right, however, to request additional documents - e.g. birth certificates for applicant and sponsor, certified copy of sponsor's passport. It is always worth checking locally for such extra requirements.

Please see the section on Making an Application from within the UK and the Spring 2002 Newsletter for details of the evidence that you will need to submit and the way you should present the application.  We have also listed the suggestions in easily printable form under Evidence .

Where do I send or take the application?

You can send the application by post to the British High Commission or Embassy. Alternatively, you can submit it in person. Where an application is made from abroad it is usual practice for the applicant to be interviewed. If your case is not straightforward, it is usually a good idea for the applicant’s partner to accompany the applicant to any interview in case the entry clearance officer wishes to ask any questions of the applicant’s partner.

How long will it take for my application to be considered?

This all depends on the particular Embassy or High Commission. It has been known for applications to be granted on the same day that they have been submitted. In some countries it can take considerably longer.

What happens if my application is refused?

If the application is refused you have the right to appeal against the decision. You have to lodge the appeal forms with the Embassy or High Commission within 3 months of the decision. The appeal will be heard in the UK at an immigration court (see section on making an application in the UK), but there is likely to be considerable delay.  See Refusals & Appeals.

If you are not satisfied with the level of service provided by the UK visas office at an Embassy or High Commission overseas you can make a complaint to the Visa Correspondence Section of UKvisas . "UKvisas" is a joint Home Office and Foreign & Commonwealth Office Unit which runs the UK's visa service through British diplomatic posts overseas. (Previously called the Joint Entry Clearance Unit).

What happens if the application is granted?

An entry clearance certificate (visa) will be placed in your passport which will give you permission (leave), from that date, to enter the UK as an unmarried partner. On arrival, leave to enter will only be refused if there is evidence that you obtained the visa by deception or if there has been a material change in circumstances (e.g. you have split up since getting the visa!).

1.   If the entry clearance is endorsed "accompanying/to join partner (partners surname and first initial)", you will be given leave to enter for 2 years and this will be good for multiple entry.  You will be able to apply for permanent residence after completing 2 years living in the UK as an unmarried partner. If your first entry is likely to be delayed for any reason, it is possible, at the time of issue, to request that the start date on the visa be deferred for up to 3 months. This may be important as a delayed entry might otherwise mean having to make an application for an extension to complete the 2 years living in the UK. This would not be a problem, just an inconvenience.

2.  If your partner is an EU citizen, it may be necessary to extend for a further 2 years - making 4 years in all, before being eligible for permanent residency.

3.  If you have lived together with your partner for 4 years outside the UK, have applied for and been granted "settlement entry clearance", this will be endorsed "settlement/to join partner (partners surname and first initial)".  In such a case you will be given indefinite leave to enter (identical to indefinite leave to remain as soon as you pass through immigration).

See "Immigration Directorates' Instructions" Chapter 8 Section 7, paragraphs 2.5 and 2.6

pwill:

Have you thought about doing this in several stages:

applying for the Irish passport (as a security measure), then

applying to the UK consulate first for a Returning Resident permit in your US passport.
The UK consulate usually makes these decisions pretty quickly. If they give you the Returning Resident permit, you could then apply for the partner visa on the basis of your ILR.

Once you're back in the UK you can still get the Irish passport.

If the UK consulate don't give you the Returning Resident permit, then you can try for the partner visa on the basis of the Irish passport.

You know that if you do apply for the returning resident permit, the UK consulate will want to see concrete evidence of your ties to the UK - you probably should write a full letter documenting having lived in the UK most of your life and attach all sorts of evidence.

Trying the one, then the other is a good idea.  Concern: If I were to apply as a returning resident and then be turned down, would they not look oddly upon my partner applying for a visa in his own right while putting me down as an Irish citizen?  Would I not be "in the system" as an American who applied (and was turned down) for a visa?

I definitely know that we can meet all the requirements for the two situations, as spelled out in "the rules".  I lived for over 35 years in the UK and still have family ties (a bank account, and a pension) there.  I can show my school records, NHS card, etc.  I also had previous "Indefinite Leave to Remain" status.  Both my partner and I can show sufficient funds for maintaining ourselves with securing employment.  We both have former (and current) employers who will write glowing letters of recommendation for us.  We have friends and family in both countries who can attest to our relationship, and we can prove we've been together for more than 3 years.


I guess it really breaks down to a few different questions.

1.  How strict are they about Returning Residency rules, and is it only on rare occasions and under exceptional circumstances when someone who has been away for more than 2 years is able to return?

While I'm certain I can meet the requirements spelled out by the rules, I keep hearing conflicting reports that it extremely rare when Section 19 is applied.

2.  Which route is better to persue in regards to my partner?  AND...
- IF I can get returning residency status, is it correct that there shouldn't be much problem with my partner's visa application?
OR
- If I get my Irish passport, would there be more difficulties with my partner's visa application?  Beacause we're talking about an American citizen applying for a British visa to accompany his Irish partner...

3.  If we chose the "wrong route" COULD an appeal even "fix" the situation?  Or would he, I, or both of us be "marked" and unable to return to the UK - even to visit?

********

I can see why you think we should get a solicitor.   

pwill:

I bet the consulates don't see the returning resident issue that often, at least not often enough to have a standard policy. There is very little guidance about it in the immigration rules.

It is down to our original problem - the sec. 19 issue is a gray area. Human nature being what it is, there is always the risk of someone being a prat.  A solicitor is good because it usually signals to the officials that this is a) a serious application and b) an unfair decision is likely to be appealed.

In my case on the partner visa there was great concern about not having lived together for the two years immediately prior to the application, because I had been working in the UK. We had lived together for 5 years before I was transferred over to the UK. However, the solicitor had anticipated this problem, and amassed a huge lever arch file of evidence to overcome the problem, and the visa was issued within a couple of days (though not the same day). If I had tried doing it on my own, perhaps they would have tried to knock out the application on that basis. Quite likely, don't you think?

Yeah, good point.  Hmmm...  you had a UK-based solicitor?  Do you suggest that route or would an American lawyer be ok too?  I wonder if any gay groups would help pro bono.

I had a UK based solicitor. An American lawyer can't help.

I am not aware of pro bono UK legal aid, but you can contact Stonewall. They are the ones who got the visa rule changed to begin with.

Yeah, good point.  Hmmm...  you had a UK-based solicitor?  Do you suggest that route or would an American lawyer be ok too?  I wonder if any gay groups would help pro bono.

Contact the Law Society to see if you can find someone who will help you out pro bono or at the very least a reduced rate.  I don't think you'd be able to get Legal Aid given you're not in the UK at the moment and it's also contingent upon your income and that of your partner.  But definitely check with the Law Society.  They've got a website that should be easily found through Google or (insert web search engine of choice).

This is from the Immigration Advisory Service.  (SEE BELOW) It sounds like there shouldn't be a problem if my one partner is an Irish citizen.  VAF1 must be filled-in, though.  Does the EEA/EU national have to apply as well?  Or just the partner?  When arriving in the UK, would the American simply go through immigration with the EEA/EU national?  (or the other way around?)

http://www.iasuk.org/C2B/document_tree/ViewADocument.asp?ID=69&CatID=1 [nofollow]

How do I qualify to come to the United Kingdom to join my same-sex partner? Or How do I qualify to come to the United Kingdom to join my unmarried heterosexual partner?

There is a Home Office Concession (not part of the rules) that allows common-law and same sex partners to join a partner who is settled or has some immigration status that may lead to settlement, e.g.:

Work permit holders
Citizens of the European Economic Area
Refugees

pwill:

The visa is applied for by the unmarried partner who would be joining the EEA citizen.

I expect the best thing is, when you go to apply for the visa at the consulate, to go together. The consulate will want to see your Irish passport (and take a copy).

You could inquire first as to whether you need to book an appointment.

Once the visa is issued, the visa holder can enter the UK on the visa and it is endorsed by the UK immigration service at the port of entry with a stamp which says "Given leave to enter the UK for ... years". (I am guessing they will give you 2 years) This stamp permits the visa holder to come and go from the UK from then on for the duration of that period.

Important: You then have to apply, in time,  for an extension to take you up to 4 years in total. Shortly before the 4 year period is over, the US citizen partner can apply for indefinite leave to remain.

Yeah, we plan to do everything together.  I rang the British Consulate yesterday and was told that it's fine for the American partner to apply for a visa if the the sponsoring partner is an EU citizen.  She told me that form VAF2 (Settlement) should be used - which is odd since I looked on here afterwards and saw that Stonewall says VAF1 (Non-Settlement) is used.  I'll have to call them back.

Are you going to be able to get round the 6 month problem with Chicago?

Still not sure about that.   We've been told by Dublin that 6 months is ridiculous...but when we spoke with Chicago again they said that's how it is, and if we wanted to send a letter explaining what's wrong then they "might" be able to do something to help.  Whatever.  San Francisco and New York assure us that the process will only take 6 - 8 weeks.  So what's basically happening is if you live under New York or San Francisco's jurisdictions you'll get your passport in 2 months or less.  If you have to go through Chicago you're screwed.  Doesn't seem quite fair.  We're going to re-ring Washington on Monday and push this issue of fairness.  Perhaps they'll give us permission to submit it through them.  If they turn us down we'll appeal to Dublin.

Also, I saw your post on the other thread misch and I'll make sure I look into the Law Society.  Cheers!