The immigration rules and processes you must follow to enter and remain legally in the UK as an armed forces spouse are complex and often poorly understood. Here, AFF’s Foreign & Commonwealth Specialist Katherine Houlston outlines some of the cases we regularly come across, where simple mistakes have had significant repercussions…
1. Coming to the UK without a visa
The F&C team is receiving increasing numbers of enquiries from families who come to the UK with the intention of remaining, without firstly getting a visa under armed forces rules. If you’re from a non-visa national country, such as St Vincent and the USA, it’s possible to ‘visit’ the UK for up to six months without applying for a visa to enter. However, if your intention is to remain here then you’re in breach of immigration rules.
Families who then apply to remain are in a vulnerable position whilst waiting for the application to be processed, which can take over a year. It’s not possible to work, open a bank account, use the NHS, drive or undertake education. If your application is refused, you’ll be issued with removal directions and will need to leave the UK immediately. If you remain in the UK for more than 30 days after this, you will not be able to reenter the UK for 12 months.
2. Applying for Citizenship when you don’t have Indefinite Leave to Remain (ILR)
Unless you’re serving, it’s necessary to have been granted ILR (or permanent residency under EU rules) before you can apply for Citizenship. It doesn’t matter that you may already meet the residency requirements – your application for Citizenship will be refused and in most cases you won’t receive a refund.
Unfortunately, if your visa expires whilst you’re waiting for your Citizenship application to be processed, you will also become an overstayer, even if you applied before expiry. The consequence of this simple mistake can be huge – one spouse has been stuck back in her home country for five months as her limited leave visa expired whilst she was visiting family. Another was in limbo for more than two years, not able to work and with no idea what was going on.
3. Applying using the wrong form
UKVI has specific armed forces application forms to enter the UK, but they’re not easy to find on its website because there isn’t a specific armed forces page. Applying on the ‘civilian’ rules to enter the UK costs an extra £1,560 because you then have to pay the Immigration Health Surcharge. It also means that your time spent on an overseas assignment would not count as residence in the UK. Whilst AFF can help you to get a refund and switch to the correct route, it can take a long time.
Recently, we have been contacted by a number of spouses who have applied for ILR on the wrong form. Spouses should use form SET(AF), not SET(M) or SET(O). If you use the wrong form, you have to withdraw that application and re-apply.
Refunds usually take at least 28 days so if your visa has already expired, your new application will need to be submitted immediately, meaning you can’t wait for the refund to be processed. Effectively, you have to pay £4,808 for each application.
AFF is on the case
I’ve been working with UKVI to improve the information for spouses on its website to try to prevent these mistakes from happening (see page 8 of the A&Y winter 2022 edition). We recommend that you read the AFF website Foreign & Commonwealth section – before making any decisions, and get in touch if there’s anything you’re unsure about.
Case study
Mrs Tunikula and her two sons (main photo) incorrectly applied for Citizenship in April 2021, two months prior to their limited leave visas expiring. A year later they contacted AFF for help as they’d had no response and were very concerned as they were all overstayers by that point. Our F&C team raised the issue to the UKVI Nationality Team who agreed to refund the application cost for Mrs Tunikula. The two children were granted Citizenship anyway because they were born in Germany, while Mrs Tunikula applied for ILR, which was granted in November last year.