The next step...

Hello everyone, this forum has been a goldmine of infomation in the past and I'm hoping that you can all help me out once again!

To put a bit of background onto things, I'm a UK citizen and my wife is a US citizen in the UK on a 5-year work permit. Her work permit expires at the end of October 2010 and her company are starting to make noises to the effect that they're not going to pay to renew her work permit. So, with a year to go, we're looking at the options that are open to us.

One option, of course, is to go to the US. However, we're settled in the UK (for the moment!) and my wife enjoys her job so we're looking at how we can stay here.

Looking through the Border Agency website, it seems fairly simple at the moment (well, as simple as these things get): 28 days before her work permit expires we go, with credit card at the ready, to our nearest Public Equiry Office (Liverpool in our case) with all of the relevant documents and, after parting with a hefty amount of cash, we come out the other side with her ILR. This would allow her to live and work in the UK with no restrictions. However, if we leave the UK for more than two years, this expires. Am I right so far?

We can then, if we choose, go back in with more forms and documentation and apply for her citizenship, after parting with more money.

I realise it's not quite that simple, but that's how I'm reading it at the moment.

Now I'm reading about the recent changes that have been brought in and the 'earned citizenship' that, it appears, will be in operation by the time we are going through all of this next year.

I wonder whether anyone can a) tell me if I have got things (broadly) right about the system as it now stands and b) would be able to point me towards an guide to how the new system will work?

Any help would be gratefully received, and many thanks for the useful advice we've already had through this board.

All the best

Tim

If she's been on a work permit for 5 years, she can apply for ILR 28 days before it expires. As she is married to a UK citizen, and will have been in the country for at least 3 years, she can immediately apply for citizenship. Any reason she never switched to a spouse visa?

Because she enjoys her job! I know that's the law now, it's more the changes that I think are going to be coming into effect in January 2010 (according to the UKBA press releases) that I'm looking for guidance on... We've got another year until we're able to go forward with the application.

I am not an expert and your situation is rather unique, but I believe that your wife cannot go straight into ILR as a spouse unless you have been married for more than 4 years and she has taken the Life in the UK test.  This is true for spouses who have lived outside the UK, but I'm not sure how it works when the couple has lived in the UK with the USC spouse on a work permit.  You may need to switch from her current temporary leave to FLR(M), which would last for two years, after which time she could apply for the next stage.  Edit: I was a bit confused about the length of time you need to be on a work permit before you can apply for ILR.  My next statement stands, though, and I do think if you've been married over 4 years that she might be able to get her ILR now.  However, there is no need to wait until 28 days before her work permit expires, she can switch her status (from WP to Spouse) at any time.  

Now, if she is able to get ILR, then she will not be affected by earned citizenship.  Her ILR will automatically become Permanent Residence in July 2011, and she will have until July 2013 to apply for citizenship under the current rules.  Since she has lived in the UK for more than 3 years, once she has her ILR she can apply for citizenship at any time, provided she meets all the requirements.  However, if you end up having to apply for FLR(M), then she will be affected by earned citizenship, as she will not have ILR by July 2011.  

As for a guide to how the new system will work, well, we're all waiting for that.  

x with superl99.  ETA: She doesn't have to leave her job if she switches to a spouse visa!  She can stay at her current job and won't need the permit renewed!

Thanks for that. I'm happy to be corrected (and I often am!). As I understand, we wouldn't be looking at ILR on the basis of marriage, but on her 5 years on her work permit.

The guidance I've read (again, happy to be corrected!!!) says:

Please do not apply more than 28 days before completing the qualifying period

The qualifying periods are as follows:

5 years in the work permit... category

As regards changing from WP to spouse, I don't reeeeeeeeeeeeeeally see much advantage in changing if we can got straight to ILR...

Does that all make sense?

Yes, if she applies for ILR on the basis of her work permit, then she can't apply until 28 days before the permit expires.  However, if she can apply on the basis of marriage (married more than 4 years to a UK citizen, passed KOL test) then she can do that at any time.  You're right that there's no benefit at this point in switching to spouse unless she can go straight to ILR.  If you have been married more than 4 years, though, it's something to look into.  I am not positive that such a route is possible for couples that weren't living outside the UK, but it could save you a year's wait for secure status and guarantee her future employment eligibility if it is possible.  Worth a thought. 

At this point there is no advantage to changing to a spouse visa as she will qualify in less time at this point. Spouses are allowed to work with no restrictions, so if she had switched when you guys got married she would be a citizen by now. But that's neither here nor there. The point is, when she has been here on her work permit for 5 years minus 28 days and taken the Life in the UK test, she can apply for ILR, and then on the basis of her marriage to a UK citizen, she can apply for citizenship if she wishes. She will not have to wait 12 months on ILR to apply as she would if she weren't married to you.

Historyenne, the 4 year route (and that's married or unmarried partners) is only for couples outside the UK, which I've always thought is bloody unfair to be honest!

Historyenne, the 4 year route (and that's married or unmarried partners) is only for couples outside the UK, which I've always thought is bloody unfair to be honest!

OK, thanks for clearing that up.  You're right, it is unfair! 

Actually, just for clarification for the OP, once your wife gets her ILR under her work permit (SET(O)) she will still have to wait 12 months before she qualifies for citizenship.

She won't qualify for ILR under SET(M) because she has to spend 2 years in the category of FLR(M) or LLE as a spouse as the clock resets when someone switches from work to family categories.

Please everyone, be aware that that are different naturalization rules for those on the family path (just needing to have ILR & 3 years residence in the UK including time spent as a visitor and meeting the in country days requirements) vs on the employment path (needing 5 years residence (not 4) and possession of ILR for 12 months before becoming eligible).

Family Path:

You must be free from immigration time restrictions on the day you make your application.

Work Path

You must be free from immigration time restrictions when you make your naturalisation application. Unless you are married to or the civil partner of a British citizen, you should have been free from immigration time restrictions during the last 12 months of the residential qualifying period.

See the difference?

That is not true Weby. Once she has ILR she has ILR; nowhere in the naturalisation materials does it say that she had to have been on a spouse visa to qualify for naturalisation, only that she IS the spouse of a British citizen.

Also, she still needs to take the Life in the UK exam...so the OP will need to make sure that they take care of that requirement as well before going for the SET(O).

Also when did the OP's wife actually enter the UK vs the valid from and valid to dates as if there is enough of a gap then she may need to extend the visa before going for ILR.

Also if she qualifies for ILR before July 2011 and citizenship before July 2013 then the 'Earned Citizenship' criteria will not apply.

That is not true Weby. Once she has ILR she has ILR; nowhere in the naturalisation materials does it say that she had to have been on a spouse visa to qualify for naturalisation, only that she IS the spouse of a British citizen.

Ah, that teaches me to actually read what I quote more carefully...correction taken.

However, just going back to read the OP's post more carefully it appears that the employer isn't willing to renew her permit and if that is the case then how is she going to get the supporting evidence & documentation from her employer to present for the ILR application?

All she needs is:
Recent document(s) from the employer named in your current work permit confirming that you are still needed and that your employment with them is continuing.

So as long as the employer is willing to keep her in employment, even if not willing to pay for a work permit, that is all she needs. The only problem comes if, as you said earlier, there is a gap between the visa being valid and entry into the UK, because she will need to have been here for 5 years minus 28 days, rather than just the visa being valid then.

Recent document(s) from the employer named in your current work permit confirming that you are still needed and that your employment with them is continuing.

That is what I meant...if her employer is balking now it doesn't sound like her employment will be continuing especially since the OP said that the employer is already starting to put out vibes that she may not be needed in the future. It might behove her to switch categories to the spouse route just to have that security because in this economic climate I wouldn't be counting on the will of someone else for my being able to stay with my husband & family.

If her employer gets a bee in their bonnet and kicks her to the proverbial curb she's basically up a creek in terms of ILR.

It actually just sounds like the employer doesn't want to pay for the work permit, rather than doesn't want her to continue working.  In fact, the OP stated that they want to stay in the UK partially because she enjoys working there.  However, the big risk of staying on the work permit and not switching to a spousal visa means that she would be in trouble if the employer does suddenly let her go.  If the OP and his wife are happy to take that risk, and can fulfill the other requirements as stated by superl99, then there's no reason to switch to the spousal visa.