海外首席代表配偶移民监要求,法律解释

2021/01/11 638
海外首席代表配偶移民监要求,法律解释

众所周知的是,大部分英国签证持有人想要申请永居时,都有着居住时间的要求。也就是任意12个月内(any consecutive 12 months of the qualifying period)离境时间不可以超过180天对于在2018年1月1号之后申请的PBS dependant的申请人来说,受同样的限制。

 

 

请参看PBS dependant申请永居时对居住时间的要求:

 

145. You must not have had more than 180 days’ absence from the United Kingdom during any consecutive 12 month period within the 5 year period.

 

146. You will need to list details of your absences from the United Kingdom, including the reasons for those absences, on the form.

 

147. If any of your absences are due to a serious or compelling reason, you must provide a personal letter which includes full details of the reason(s) for the absences and all relevant supporting documents in relation to those reasons - e.g. medical certificates, birth/death certificates, other information about the reasons which led to the absence from the United Kingdom.

 

148. Whatever the reason for absences from the United Kingdom, they will still be counted towards the maximum 180 days (see information about delayed entry to the UK below) unless they fall under a specific exemption. This includes any absences for work reasons, or serious and compelling

reasons.

 

149. There are a number of exemptions where absences are not considered as part of the maximum 180 days:

• where you have been absent from the United Kingdom assisting with a national or international humanitarian or environmental crisis,

• where the absence was during a period of leave granted prior to 11 January 2018

• where your partner was working in a PhD level occupation under Tier 2 (General) and you have been absent from the UK to accompany them while they were undertaking overseas research

• where your partner was granted leave under either Global Talent or Tier 1 (Exceptional Talent) following an endorsement by one of the following endorsing bodies and the purpose of the absence was linked to their grant of leave:

 

o The Royal Societyo The British Academyo The Royal Academy of Engineeringo UK Research and Innovation

 

150. You can include the time between your entry clearance being granted and you entering the United Kingdom as part of your continuous period. Absences between the date entry clearance is granted and the date you enter the United Kingdom are treated as an absence from the United Kingdom and will form part of the 180 days allowed within a continuous 12 month period.

 

151. You do not need to provide evidence to demonstrate a period of absence between obtaining entry clearance and entering the United Kingdom.

 

152. If you have been outside of the United Kingdom for more than 180 days in a consecutive 12 month period, you will need to start the qualifying period for settlement again. This does not apply if this was during leave granted before 11 January 2018. You should therefore pay careful attention

to your absences from the United Kingdom if it is your intention to apply for settlement.

 

总的来说,dependants(配偶)可以被接受离境时间超过180的情况只有三种。一是由于重大的疾病/死亡导致无法回到英国。二是涉及到人道主义和环境危机的情况。三是从事特定的行业,并由于工作原因需要离开英国。证明以上三点,都有一定的难度。具体的问题需要专业人士具体的分析界定。

 

 

这也就加大了Tier 1 2 4 5 签证持有人的配偶申请英国永居的难度。然而夫妻双方一方拿不到永居,会导致孩子无法顺利的拿到永居。因此有的申请人只能通过claim独立抚养权的方式来保证孩子顺利拿到永居身份。或者是通过多次续签,来达到永居申请的要求。然后任何一个方案,都会增加申请成本。这是各位申请人在做签证规划的时候,一定要提前考虑到的问题。

 

前面之所以为大家介绍了完整的 PBS签证系统下的dependants申请永居时需要达到的居住要求,是为了

 

和海外首席代表签证中dependants申请永居的要求进行对比。

 

 

今天我们将主要分析,海外首席代表签证独特的优势,也就是:

 

首席代表签证的配偶不受以上居住条件的限制。

 

以下法条是首代签证持有人的dependants申请永居的要求:

 

196D. The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the partner of a person who has or has had leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that the applicant:

 

(i) is the spouse, civil partner, unmarried or same-sex partner of a person who:

 

(1) has limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) and who is being granted indefinite leave to remain at the same time; or

 

(2) is the spouse, civil partner, unmarried or same-sex partner of a person who has indefinite leave to remain in the United Kingdom or has become a British citizen, and who had limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) immediately before being granted indefinite leave to remain; and

 

(ii) meets the requirements of paragraph 194(ii) - (vii); and

 

(iii) has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL; and

 

(iv) was not last granted:


(1) entry clearance or leave to enter as a visitor, short-term student or short-term student (child),(2) temporary admission,(3) temporary release, or(4) after the date on which paragraph 1 of Schedule 10 to the Immigration Act 2016 is commenced, immigration bail in circumstances in which temporary admission or temporary release would previously have been granted; and

 

(v) must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.

 

其中提到的paragraph 194(ii) - (vii)也就是在申请首签和续签时候的要求。我们可以清楚的看到没有对申请人(dependants)的居住时间有任何规定,是不同于PBS签证系统下的要求。

 

194.The requirements to be met by a person seeking leave to enter the United Kingdom as the partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that:

 

(i) the applicant is the spouse, civil partner, unmarried or same-sex partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K); and

 

(ii) if an unmarried or same-sex partner:

 

(1) any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down; and(2) the parties are not involved in a consanguineous relationship with one another; and(3) the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for 2 years or more; and

 

(iii) each of the parties intends to live with the other as his or her partner during the applicant’s stay and the relationship is genuine and subsisting; and

 

(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

 

(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

 

(vi) the applicant does not intend to stay in the United Kingdom beyond any period of leave granted to his partner; and

 

(vii) the applicant does not fall for refusal under the general grounds for refusal; and

 

(viii) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

 

但是!但是!但是!

 

需要注意的是,没有居住要求,并不代表可以一次都不登陆

 

因为:如果一次都不登陆,造成的实际情况就是 - 夫妻关系的真实性会受到怀疑,西方人的思维很难接受夫妻双方分居异国,5年的时间?就更不用说了。 

 

所以说:我们的建议是

  1. 首席代表配偶可以没有没有每年居住英国183天的要求,但是

  2. 需要注意维持夫妻关系之间的证据,例如转账记录,一起旅游的记录

  3. 尽量的多来英国与主申请人团聚,尽量的增加夫妻在一起的时间!

  4. 这个政策漏洞一定会被修正!时间问题而已!只要在政策变化之前获得这个签证的,毫无疑问的会按照老政策执行,之后必然按照新政策执行。

     

我们建议各位符合首代签证要求的朋友们,尽快在政策没有调整之前,做好申请规划。在申请之前咨询专业人士,对自身情况进行详细评估分析,以提高申请成功率。针对不同的企业情况和申请人背景,需要具体问题具体分析,欢迎各位通过以下联系方式,与我们沟通探讨。

 

 

Image

 

 

更多疑难咨询,经验分享,

欢迎添加管理员大叔个人微信详询

 

Image

 

英国金融监管局FCA注册专家

英国内政部移民事务署注册移民专家

英国彼得森律师行合伙人


Image