Q&As

If an applicant applies for a new Spouse visa (via entry clearance) before their current spouse visa expires, and then they come back to the UK with the new visa, will they still be eligible to apply for indefinite leave to remain based on their current visa and their previous five years in the UK under this category? The applicant for the fresh grant of leave to enter as a spouse is overseas and is unable to travel to the UK.

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Produced in partnership with Nick Nason of Edgewater Legal
Published on LexisPSL on 10/01/2020

The following Immigration Q&A produced in partnership with Nick Nason of Edgewater Legal provides comprehensive and up to date legal information covering:

  • If an applicant applies for a new Spouse visa (via entry clearance) before their current spouse visa expires, and then they come back to the UK with the new visa, will they still be eligible to apply for indefinite leave to remain based on their current visa and their previous five years in the UK under this category? The applicant for the fresh grant of leave to enter as a spouse is overseas and is unable to travel to the UK.

In this situation, an individual has been granted leave to enter as a spouse for the initial period (up to 33 months under the Immigration Rules, Appendix FM, Section E-ECP), but is out of the UK for reasons beyond their control at the point of the extension application for leave to remain as a spouse (under the Immigration Rules, Appendix FM, Section R-LTRP).

The type and length of leave required to make a settlement applications is set out at the Immigration Rules, Appendix FM, Section E-ILRP:

‘1.3. (1) Subject to sub-paragraph (2), the applicant must, at the date of application, have completed a continuous period of either:

(a) at least 60 months in the UK with:

(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1.; or

(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1.; or

(iii) a combination of (i) and (ii)’

This rule suggests that it is possible to rely on either (i) 60 months with leave to enter, or (ii) 60 months with leave to remain, either by themse

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