Issues with the CoA Process

That was my assumption, too, and one o the reasons Tim and I were waiting until April 2010 for my return. 

If you're leaving the UK in April 2009 after being here for 6 months, then you could technically safely re-enter the UK 6 months from now (12 months after you first entered the UK), which would be October 2009. That way, you're still only staying up to 6 months within a 12-month period.

Is the 6 months in 12 a hard and fast rule, or just a guideline? 

It's just a guideline, not an official rule, but it's usually safer to spend at least the same amount of time outside the UK as you did inside the UK as you can be refused entry if the IO thinks you're coming to the UK too often in a short period of time.

According to the OP, she arrived in August 2008, stayed until November 2008, went to the US in November, then returned to the UK (presumably) later in November.  So if she was granted 6 months in November, she shouldn't be in breach, right?  If the IO was worried she was going to stay longer than 6 months out of 12, shouldn't they have ascertained in November that she had spent the previous 3 months in the UK and so was only entitled to 3 more months?  Is the 6 months in 12 a hard and fast rule, or just a guideline? 

I thought he said she received her visa in August, though.  So her six months would have started in August, and August - November is 3 months, and then November - February would finish out the 6 months out of 12. I don't know, I'd still think that if she had already been in for 3, regardless of when she got the visitor visa, she probably should have left in February to stay with in the 6/12 rule.

If you're leaving the UK in April 2009 after being here for 6 months, then you could technically safely re-enter the UK 6 months from now (12 months after you first entered the UK), which would be October 2009. That way, you're still only staying up to 6 months within a 12-month period.

It's just a guideline, not an official rule, but it's usually safer to spend at least the same amount of time outside the UK as you did inside the UK as you can be refused entry if the IO thinks you're coming to the UK too often in a short period of time.

Yeah, that was one of the reasons we wanted to wait until April 2010. We figured leaving an entire year would look a lot better, and he has plans to visit me in between.  And IF I'm still coming over as a visitor, Tim wants me to be around for the Spring/Summer instead of Winter. 

Right, this is getting REALLY confusing now.

The OP's girlfriend was issued a 12 MONTH MULTIPLE ENTRY VISIT VISA.  She was not simply granted a 6 month visa on entry, therefore the rules are different.

If someone has been issued a 12 month visit visa, they can only remain in the UK for 6 months in that 12 month period.

is true.

If you're leaving the UK in April 2009 after being here for 6 months, then you could technically safely re-enter the UK 6 months from now (12 months after you first entered the UK), which would be October 2009. That way, you're still only staying up to 6 months within a 12-month period.

This is not right.  If you have been issued a 6 month visa on entry, then each time you enter you are granted 6 months more.  And, regardless of how long you have been here before, this is at the discretion of the immigration officer.

Vicky

I thought he said she received her visa in August, though.  So her six months would have started in August, and August - November is 3 months, and then November - February would finish out the 6 months out of 12. I don't know, I'd still think that if she had already been in for 3, regardless of when she got the visitor visa, she probably should have left in February to stay with in the 6/12 rule.

I agree with you, but if the 6 of 12 isn't a hard rule, then I think that some responsibility lies with the IO to clarify how much leave she is being granted.  If she hadn't applied for a 12 month visa and had spent 3 months in the UK, went to the US, then tried to reenter the UK, surely she should have been told that she could only remain for another 3 months?  And in this case, she (or at least her fiance) tried to find out what the rules were and were misinformed.  It would be different if someone had told her in November that she was only allowed another 3 months and she ignored them, but if she's granted entry with no conditions and no time limit, then it's not unreasonable for her to think she could stay for the normal time granted by the visa stamp.  

Added after reading Vicky's post:  So she is not in breach because she was granted entry in November and she hasn't stayed longer than 6 months from that time?

This is not right.  If you have been issued a 6 month visa on entry, then each time you enter you are granted 6 months more.  And, regardless of how long you have been here before, this is at the discretion of the immigration officer.

I know that - I was just responding to Becca, who said that she was going to wait a whole year before returning to the UK (leaving in April 2009 and returning in April 2010). I just wanted to clarify that even if she wants to stick to the 'no more than 6 months in a 12-month period' convention, she doesn't actually have to wait an entire year before coming back; she could travel in October 2009 (or earlier, if the IO lets her in), rather than April 2010 if she wanted (I thought perhaps she had calculated it wrong and thought she had to wait 12 months from the date she left the UK - which obviously she hasn't, it's just her personal choice to wait until April).

I know that - I was just responding to Becca, who said that she was going to wait a whole year before returning to the UK (leaving in April 2009 and returning in April 2010). I just wanted to clarify that even if she wants to stick to the 'no more than 6 months in a 12-month period' convention, she doesn't actually have to wait an entire year before coming back; she could travel in October 2009 (or earlier, if the IO lets her in), rather than April 2010 if she wanted (I thought perhaps she had calculated it wrong and thought she had to wait 12 months from the date she left the UK - which obviously she hasn't, it's just her personal choice to wait until April).

But, that's good information for anyone else trying to work out the back and forth trips. 

I'm still confused for the OP though.  You'd think there would be clear black and white rules for this sort of stuff!

I'm still confused for the OP though.  You'd think there would be clear black and white rules for this sort of stuff!

That is my point.  There is.  For multiple entry visit visas there has always been very, very clear guidelines.  No more than six months in the UK in any 12 month period.  End of story.

Vicky

This is confusing as we were led to believe that with the multiple entry visa it is no longer than 6 months at one time in a twelve month period. If it is just 6 months total in a twelve month period then there was no need for her to get that visa as these are the same rules as the visa waiver program and we would not have to have paid £300 for the 12 month multiple entry visa.

There are also 2yr, 4yr 5yr and 10yr multiple entry visa's available for a lot more money which as we understood had the same rules as the 1yr one that she has but there was no point going for any of these as we were planning to be married within the year (and now have everything booked and paid for for the 25th of July so things hopefully will still go according to plan).

Also there has been recent updates to the FLR(M)'s due to the recent rulings and the new form along with the guidance notes have a section refering to whether you were awarded a CoA before marrying so it is again looking like changing from a visitors visa to a spouse's visa while in the country using an FLR(M) is actually possible.

http://www.ukba.homeoffice.gov.uk/ukresidency/extendingyourstay/applicationtype/flr(m)/

The Glovner, you need to read the immigration rules.  Here's the relevant bit:

284. The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that:

(i) the applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules, other than where as a result of that leave he would not have been in the United Kingdom beyond 6 months from the date on which he was admitted to the United Kingdom on this occasion in accordance with these Rules, unless the leave in question is limited leave to enter as a fiance or proposed civil partner or unless the leave in question was granted to the applicant as the spouse, civil partner, unmarried or same-sex partner of a Tier 1 Migrant and that spouse or partner is the same person in relation to whom the applicant is applying for an extension of stay under this rule; and



Your fiancee did not have permission to remain in the united kingdom for more than 6 months when she entered the country, and she doesn't qualify for any of the exceptions- she wasn't on a fiance visa, and she didn't enter as the spouse of a Tier 1 migrant.  Therefore, she cannot meet this portion of the rules.

Also there has been recent updates to the FLR(M)'s due to the recent rulings and the new form along with the guidance notes have a section refering to whether you were awarded a CoA before marrying so it is again looking like changing from a visitors visa to a spouse's visa while in the country using an FLR(M) is actually possible.

http://www.ukba.homeoffice.gov.uk/ukresidency/extendingyourstay/applicationtype/flr(m)/

I looked at the page you linked to, and I didn't see any mention of COA at all. Could you link directly to the page you read that information on and possibly paste in what you read?  The only thing I saw was if you already had Limited Leave to Enter as a spouse, how to apply.

I don't see where you get the idea that switching from visitor to spouse is OK from that UKBA page.  Would you mind quoting a specific passage?  

If your understanding of the visitor visa was correct, then people could live here just by channel hopping every six months, and there's no way that would be allowed.  

Unfortunately, you were given some phenomenally bad advice.  Your fiance didn't need to apply for a visa, and you paid fees you didn't need to pay.  That really sucks and I'm sorry for you, but you aren't going to find a way around the rules.  Your fiance will have to return to the US and get a fiance visa, or you will both have to go there and get married so she can apply for a spousal visa.  If you don't accept that, you will just make things worse for yourselves.    

It was section 6 of the application form that I was finding confusing as it has question 6.1 asking if you entered the uk to get married (which I would assume in my case is no since she is on a visitor visa), if you answer no to that go on to the next question which asks if you have been granted a CoA then on to the rest of the usual questions.

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/flr/formflrm042009

It was section 6 of the application form that I was finding confusing as it has question 6.1 asking if you entered the uk to get married (which I would assume in my case is no since she is on a visitor visa), if you answer no to that go on to the next question which asks if you have been granted a CoA then on to the rest of the usual questions.

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/flr/formflrm042009

That's no different to what it said on the last version of the form.  You have to remember that the CoA was originally designed for people on longer term visas like student or employment visas to be able to marry in the UK, and it's that situation that the question on the form has in mind, because of those who end up getting a COA those folks on student/employment/other long term visas are the only people who are eligible to use the FLR(M) form to switch status!  You're not eligible in the first place, so there's no reason for you to even be looking at the form.

It was section 6 of the application form that I was finding confusing as it has question 6.1 asking if you entered the uk to get married (which I would assume in my case is no since she is on a visitor visa), if you answer no to that go on to the next question which asks if you have been granted a CoA then on to the rest of the usual questions.

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/flr/formflrm042009

Having been granted a CoA has no bearing on whether FLR(M) will be granted.  CoAs are used by people on different types of visas, like student or Tier 1, and those people are allowed to switch to FLR(M) in-country.  But since your fiancee doesn't meet the requirements Springhaze quoted, specifically that she wasn't granted leave for longer than 6 months, she can't switch to FLR(M) and if she tries, she'll be refused.  

x-posted with springhaze

Point accepted, I see what you are getting at (just clutching at straws due to worry). As I said previously we are already looking at her going back to America before the 11th of May.

The only thing that worries me now is if she has overstayed her visa (which I wasn't under the impression she had due to the rules as they had been explained to us for a 12 month multiple entry visa) will that count against her for getting her fiance visa.

Hopefully if our complaint is successful following all this incorrect information we may get something knocked off the future charges. I can hope.