# EEA family member new rules please help



## SoYouThink (Sep 8, 2013)

Hello there 

I'm both Italian and British National, living in UK. I have never worked in a EU state. Now married to my non - EU wife, and I'm trying to bring her over here to UK under EU rules using EEA family permit. 

I read the new rules about the Surinder Singh judgement and McCarthy. 

questions; 

- Is the change implemented at the moment? anyone refused EEA permit due to the new changes? 

- I see no release of new application for EEA family permit nor questions or guidance reflecting the new rules. 

- the application for EEA FAMILY PERMIT (VAF5 DEC 2008) still old, can I try applying? 

Please help and advice, many thanks.


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## Jrge (Mar 22, 2011)

Hi,


SoYouThink said:


> Hello there
> 
> I'm both Italian and British National, living in UK. I have never worked in a EU state. Now married to my non - EU wife, and I'm trying to bring her over here to UK under EU rules using EEA family permit.
> 
> ...


1- Yes, and in full enforcement. 
2- http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009CJ0434:EN:HTML- 
Also read EUN2.16 UK Border Agency | EUN02 - EEA Family permits
And the guidance: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/news/changes-imm-eea-regs.pdf.

3- Most applications are now made on-line. However, printing and "mocking" that version helps you to provide accurate facts.

Similarities? http://www.expatforum.com/expats/britain-expat-forum-expats-living-uk/199898-eea-family-permit.html

Your available options are:

* Move to another State an exercise treaty rights for a period of 3-6 months, and then pursue entry to UK for your non-EU spouse under Surinder Singh.
* Sponsor our non-EU spouse under UK immigration rules.

Animo
(Cheers)


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## SoYouThink (Sep 8, 2013)

Ok ... Thanks Jrge - can they apply new rules whilst using the old version application (VAF5 DEC 2008) ? I read a thread saying since the new application not being released you must hurry and try to apply ... 

I'm really lost in what to do, cos if I try to follow UK immigration rules, I don't meet the financial requirements, I left my 21k job just recently (1 month ago) due to health reasons ( bad back ) now doing part time job and getting housing benefit. 

Many thanks


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## Joppa (Sep 7, 2009)

Despite the old form still being used, the new rules are now in force and your application under EEA rules will be rejected because of dual nationality.

See:

_EUN2.16 

Until 16 July 2012 persons who held British citizenship and who were also nationals of another EEA member state could rely on that EEA nationality to benefit from the terms of the Directive. This was because Regulation 2 of the 2006 Regulations did not preclude such dual national British citizens from benefitting from free right movements.

The definition of EEA national in Regulation 2 was amended on 16 July 2012 to preclude dual British citizens/EEA nationals from benefitting from the Directive and therefore also to preclude their family members from relying upon free movement rights.


The McCarthy judgment determined that a person who holds the nationality of the host Member State (in our case British nationality) and has never exercised their right of free movement and residence does not benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another member state. This means that family members are also unable to derive a right of residence under the Directive on their basis of their relationship to such a national. British citizens can only acquire free movement rights in certain scenarios and so are in general prevented from circumventing the requirements of the Immigration Rules when sponsoring entry to the UK of family members._
http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/eun/eun2/#header15


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## SoYouThink (Sep 8, 2013)

Thanks Joppa and Jrge, 
Ok ... so clearly no point in applying and risking the rejection. 

I'm really lost in what to do, cos if I try to follow UK immigration rules, I don't meet the financial requirements, I left my 21k job just recently (1 month ago) due to health reasons ( bad back ) now doing part time job and getting housing benefit. 

Can my wife apply for a tourist visa or even a student visa ... ? any other solutions


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## Jrge (Mar 22, 2011)

Hi,


SoYouThink said:


> Thanks Joppa and Jrge,
> Ok ... so clearly no point in applying and risking the rejection.
> 
> I'm really lost in what to do, cos if I try to follow UK immigration rules, I don't meet the financial requirements, I left my 21k job just recently (1 month ago) due to health reasons ( bad back ) now doing part time job and getting housing benefit.
> ...


The "old form" is mainly use to provide some sort of guidance, as nearly all applications must be done on-line. The enforcement of the McCarthy ruling has been in effect form some time now, hence there's no point on trying to beat the system.

I've given you my only logic suggestion -besides following UK immigration rules, and that is to move to another State (Think of Spain) and exercise treaty rights (part-time as: security guard, bartender, cook, chef, manager) there for a short period of time (3-6 months) and ensuring the job is legit (legal payslips or legal contract of employment). Also making sure you have plenty of evidence that you and your spouse lived together in the same State and household/residence (tenancy agreement, utility bills, Insurance coverage)

Animo
(Cheers)


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## SoYouThink (Sep 8, 2013)

Many Thanks, Do you think we stand a chance for a Family visitor visa for the spouse? 

I understand that ukba are wary about "spouse visitor" visas due to overstaying and am looking for advice on applying for a"family visitor" visa for my spouse instead at least she can come here or travel back and forth while we sort out the settlement visa either way EEA or UK settlement. these new rules are so unjust that are tearing families apart let alone the stress and finances to go through it all. 

What are the chances of my spouse getting a visitor visa?? How can I prove that my spouse will return before 6 months and then apply for a "spouse visa" from home country??

Thank you


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## Joppa (Sep 7, 2009)

Well, she needs strong ties in her home country such as a job, family responsibility or educational course to return to (with documentary evidence), she needs adequate source of finance or you sponsor her (6-month banks statement required) and suitable accommodation. If she has no strong ties in her country, that will raise a serious question about whether she will ever return home and not overstay.


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## SoYouThink (Sep 8, 2013)

Thank you, 

we will look into this, any financial acquirements for the visa? 

when is it best to buy a return ticket? when applying / lodging the application or after the grant of visa?


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## Joppa (Sep 7, 2009)

No fixed figure, as it depends on a number of factors such as area of the country you live in, what she will be doing, your standard of living.
Don't pay for a flight until visa is issued.


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## SoYouThink (Sep 8, 2013)

Joppa 

I want to clarify few things please. 

As Im dual national, both Italian and British. And was naturalised Italian citizen way before British. So does that mean I have now already exercised my treaty rights by working as an Italian citizen in UK? I have always used my Italian passport in UK for work and so on ...

Does that mean I have exercised my treaty rights as an EU citizen living and working in an EU country ( UK ) which I wasn't a citizen of ( living and working here as an Italian )


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## nyclon (Apr 3, 2011)

SoYouThink said:


> Joppa
> 
> I want to clarify few things please.
> 
> ...


No. You're a UK citizen. You can't exercise treaty rights in your own country. It doesn't matter that you have EU citizenship in another country.


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## Joppa (Sep 7, 2009)

If you were born outside UK, and came to UK using your Italian passport (the only passport you held then), it may be argued that you have exercised your treaty rights. But I don't know how ECO will look at your situation - it may be a grey area.


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## SoYouThink (Sep 8, 2013)

Joppa 

I have travelled to the UK on my Algerian passport. 
Gained my Italian citizenship through marriage to an Italian.
Gained my British citizenship through my permanent residency in uk.didnt need my British citizenship or passport for any reason as I was living as an Italian citizen since the day i got the passport. 

Hope that helps. 
Thanks Joppa great help


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## Jrge (Mar 22, 2011)

Hi,


SoYouThink said:


> Joppa
> 
> I have travelled to the UK on my Algerian passport.
> Gained my Italian citizenship through marriage to an Italian.
> ...


The day you became a British Citizen you stopped exercising treaty rights as an Italian, hence now you must obey and follow British Law.

You could -however, challenge the application and send it in as an Italian Citizen to see what happens, but in my humble opinion once they carry out corresponding checks they'll find out you are a dual citizen.

Animo
(Cheers)


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## SoYouThink (Sep 8, 2013)

Is confusing ... because even I'm now British and Dual national, I had already exercised my treaty rights in UK ... as Italian in a country where I was not a citizen of .... and clearly that's what the new law requires. Surely they cant now just ask me to exercise more treaty rights in a different EU country because I'm now British ... ?!

Thanks Jorge and Joppa


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## SoYouThink (Sep 8, 2013)

Is confusing ... because even I'm now British and Dual national, I had already exercised my treaty rights in UK ... as Italian in a country where I was not a citizen of .... and clearly that's what the new law requires. Surely they cant now just ask me to exercise more treaty rights in a different EU country because I'm now British ... ?!

Thanks Jorge and Joppa


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## Joppa (Sep 7, 2009)

But that's how a change in regulations normally works. If you partner had applied for EEA family permit before you became British citizen and is now on 5-year residence card, the change following the McCarthy judgment is of no effect, as your partner would already be here under the EU rules. But the fact is your partner didn't, and since then the rules have changed, so the fact you had exercised EU treaty rights as Italian national before the rules change is no longer of relevance. The only thing that matters is what your status is NOW under the EU rules as your partner goes for EEA family permit. The only ***** in the armour is that you have lived and worked in an EU country (UK) other than the one you are a citizen of (Italy), but Jrge thinks your application will still fail.


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## Jrge (Mar 22, 2011)

Hi


Joppa said:


> But that's how a change in regulations normally works. If you partner had applied for EEA family permit before you became British citizen and is now on 5-year residence card, the change following the McCarthy judgment is of no effect, as your partner would already be here under the EU rules. But the fact is your partner didn't, and since then the rules have changed, so the fact you had exercised EU treaty rights as Italian national before the rules change is no longer of relevance. The only thing that matters is *1- what your status is NOW under the EU rules *as your partner goes for EEA family permit. The only ***** in the armour is that you have lived and worked in an *2-EU country (UK) *other than the one you are a citizen of (Italy), but Jrge thinks your application will still fail.


1- This is what would support this application.
2- This is what his current status is: British Citizen living in UK, hence must follow immigration rules.

Animo
(Cheers)


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## SoYouThink (Sep 8, 2013)

Joppa and Jrge 

I've decided not to go ahead with the EEA family permit application. Not worth the risks as it could be rejected and the refusal will delay any further applications we might make. 

Now - I Don't meet the financial requirements for UK spouse visa. We are thinking on applying for a Tourist, Visitors or even a student visa .... while we get the financial requirements ready for the souse visa, at-least so wife cant travel ... back and forth ... 

What visa is most suitable for us please? bearing in mind I live in UK and we are married ... the ECO might suspect her not coming back and overstaying ... 

Wife asked, what about a student visa to prepare for the the tests required to apply for the UK settlement? as from this October 26th new rules will be in place for UK spouse Visa. 2 tests required, English Language test B1 or equivalent and life in the UK I think ... So would a student visa work for this reason? 

Many thanks guys!


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## Joppa (Sep 7, 2009)

For a student visa to study English, you need a confirmed place by a registered sponsor (college, language school etc), evidence of being able to pay tuition fees and enough funds for living cost (£1000 a month in London, £800 elsewhere). It's all worked on points basis, and you need minimum points to apply for Tier 4 General visa.
See UK Border Agency | Can you apply?
In addition, with Tier 4 she can work up to 10 hours a week term-time when studying below degree level.
English language requirement for initial visa for spouse is still A1 and it isn't changing. It's when going for settlement (after 5 years) and naturalisation that you need the new B1 pass plus Life in the UK test pass.


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## SoYouThink (Sep 8, 2013)

Thank you 

Any advice on other visa types please, most suitable one as mentioned above?


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## Joppa (Sep 7, 2009)

There isn't really. There is sponsored work visa (Tier 2 General) but she must be skilled in a shortage occupation.


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## SoYouThink (Sep 8, 2013)

Joppa Hi 

Advice please, 

I have been working for 12 month till this July earning around 22k. 
July started my part time job;
August pay £600 net 
September £ 800 net 
October will be slightly more, due to more hrs and over time maybe expecting £1200 net. 

Question; 

If I registered a business as a sole trader from this month, lets say with an income of £500 a month would this help to combine both salaries to meet the 18.6k? part time job plus business? 

Thank you


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## Joppa (Sep 7, 2009)

No. Any business must be run for at least a full year (accounting year) before any profit can be counted.


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## SoYouThink (Sep 8, 2013)

Hi Joppa, 

1) If I renounce my British Citizenship, will my spouse be able to apply for EEA family permit, as ill be Italian citizen (only) living in UK? 

2) how long does the process take to give up the the British citizenship? 

3) will the EEA family permit application be delayed cos I gave up my British citizen for immigration purposes? 

4) at what stage of my spouse EEA permit I could resume my British citizenship without affecting her residency? 

Many Thanks.


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## Joppa (Sep 7, 2009)

I don't recommend renouncing British citizenship solely to facilitate the issue of a partner visa. You have to be without British nationality until at least the ILR stage (5 years), and it may be difficult to resume British citizenship if you renounced in order to circumvent immigration rules, as Home Office may take a dim view of you.


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## SoYouThink (Sep 8, 2013)

Thank you Joppa, 

Any Idea, time frame, how long it takes to give it up please? 

Will the EEA FP still be considered without complications?


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## Joppa (Sep 7, 2009)

I don't suggest you take this step, but if you want to know, see UK Border Agency | How do I give up British citizenship or another form of British nationality?
It costs £187, and once Liverpool nationality office receives your application with supporting documents, it should be processed fairly quickly, maybe a few weeks.
Once you become Italian only, getting EEA family permit should be straightforward.


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## SoYouThink (Sep 8, 2013)

Really appreciate your advice Joppa, very helpful. 

- I have no other options left to try ... since I don't meet the financial requirements, plus I also get some housing benefit, does this fall under public funds? 

- what's the point being British, when this is depriving me from living with my wife. Is just tearing us apart.


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## Joppa (Sep 7, 2009)

Remember on ceasing to be British, there are some changes to your status. You can no longer vote in parliamentary elections, you should return your British passport to be cancelled, your eligibility to certain benefits and allowances may change. And in the unlikely event of UK leaving EU in a few years, nobody knows what your position, and that of your wife, will be, unless you can get permanent residence before then. So in this climate of uncertainty, renouncing British citizenship is fraught with difficulties.


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## SoYouThink (Sep 8, 2013)

All true Joppa, 

I do hold a permanent residence card. Issued on 2007. 
It hurts when being British, paying my taxes, voting, obeying the law but yet facing difficulty to bring a partner to live with me due to the law. 
because I only work par time, and I get some public funds ( housing ) 
15 years in full time employment and paying my taxes, now suffering from bad back and cant do specific job and full time hrs ... how is the Gov helping me with my situation in return as a citizen?!

No-one, regardless of race, gender, sexual orientation, religion or any other reason, should be treated or made to feel like a second-class citizen; but the UK government is now making some British citizens either consider renouncing their citizenship or wish that they were a Frenchman, a German, or, better yet, an Irishman.


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## Joppa (Sep 7, 2009)

Cruel though it is, in the current political climate, they are in effect saying that you should think hard before falling in love with a foreigner, and if you can't meet the requirements, be prepared to move to your partner's country, or anywhere you can both live legally and within your means.


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## SoYouThink (Sep 8, 2013)

Joppa, 

Due to all your experience, 

Do you think if I try to resume my citizenship after I renounce it, will the home secretary sees it as by passing the immigration law ... and face refusal on resumption ? 

How can the home secretary object when the options are there to renounce and resume ... 

Although I read, the law allows you to renounce in order to retain another ( in my case ) the law also allows you to resume once.


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## Joppa (Sep 7, 2009)

Yes, you should be able to get it back, but that's in the future (5 years). While you can get it back once, I expect Home Office to check up on the circumstances of your renunciation, and as you know, rules can change.


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## SoYouThink (Sep 8, 2013)

Ok - in my case, should my reason be simply ( to retain another) ?


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## SoYouThink (Sep 8, 2013)

Hi Joopa, 

I want to ask please. 

1) If I receive some kind of disability living allowance now called PIP, does any level of PIP exempt me from financial requirements? there are 2, enhanced and standard. 

2) will application fees applicable? 

3) I receive some housing benefit at the moment and earn just under £1000 per month. Is it ok to get housing housing while making spouse application? 

4) any extra / special documents required to support application, since applying under exempt rules ... ? 

5) will the application take longer than normal? 

Many Thanks


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## Joppa (Sep 7, 2009)

1) - 3) Yes.
4) See the guidance on FM1.7.
5) Not necessarily, provided your application is complete.


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## SoYouThink (Sep 8, 2013)

will application fees apply?


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## Joppa (Sep 7, 2009)

I said yes.


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## SoYouThink (Sep 8, 2013)

Got it, thanks!


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## SoYouThink (Sep 8, 2013)

Joopa Hello, 

Can the spouse travel to the UK at any-time after the spouse visa has been issued? I heard she must travel within a month ... ? 

Thank you


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## nyclon (Apr 3, 2011)

The visa is valid for 33 months. You can travel any time from the valid from until the valid to date. It is in your best interest to arrive in the UK with 30 months left on the visa so that you are on track to apply for FLR after living in the UK 2.5 years.


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## Joppa (Sep 7, 2009)

On or after the 'valid from' date on the visa. While she can in theory travel right until the day before expiry, she should aim to arrive no later than 3 months from the valid from date, to give her the full 30 months needed to apply for renewal of leave.


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## SoYouThink (Sep 8, 2013)

Thanks joopa, 
How about the EEA family permit, does the same rules apply? is only valid for six months.


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## Joppa (Sep 7, 2009)

Family permit is different. It doesn't confer any right but just confirms the EU right you already have.


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## SoYouThink (Sep 8, 2013)

Joppa Please, 

If we apply for spouse visa while Im getting DLA, getting some housing benefit, and earning around £1000 per month. Does my wife need to proof that she can support her self in UK? if so what documents required pls?


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## Joppa (Sep 7, 2009)

It's you as sponsor that have to meet the maintenance requirement. You need £112.55 net left over each week after housing cost and council tax. If your income including benefits is sufficient, you can sponsor your wife. She doesn't need any financial proof, neither does her overseas income count.


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## SoYouThink (Sep 8, 2013)

Thank you, really appreciate your help, advice and prompt replies.


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## SoYouThink (Sep 8, 2013)

Just out of interest, Can a dual British/EU citizen apply for an EEA1 registration certificate? what form Eu citizens that have been working in UK for over 5 years must fill to obtain their permanent residency?


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## Joppa (Sep 7, 2009)

No. That is explicitly excluded by rules change last year.


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## SoYouThink (Sep 8, 2013)

Hi Joppa, 

Questions / clarifications about student visa tier 4 please; 

- Can my wife get a tier 4 student visa when married to a British National living in UK? 

- I read switching is possible to spouse visa, for student visas valid longer than 6 months, will our marriage from abroad be valid? or have to re - marry / register here in UK? 

- for switching, can we combine our both salaries, to meet the 18.6k?

- will the type of settlement / spouse visa she will get after switching be similar to ordinary spouse visa in terms of time and restrictions or slightly different, I heard, she will get extensions of 2.5 years few times ... 

Many thanks Joppa 

-


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## Joppa (Sep 7, 2009)

SoYouThink said:


> Hi Joppa,
> 
> Questions / clarifications about student visa tier 4 please;
> 
> - Can my wife get a tier 4 student visa when married to a British National living in UK?


Yes. She has to meet the conditions of Tier 4, such as confirmed place, fees payment and adequate income. You can sponsor her for accommodation and living cost. 



> - I read switching is possible to spouse visa, for student visas valid longer than 6 months, will our marriage from abroad be valid? or have to re - marry / register here in UK?


Marriages valid in the country it was entered into are normally recognised as valid in UK. All you need is marriage certificate translated into English if applicable. 



> - for switching, can we combine our both salaries, to meet the 18.6k?


Yes, provided she works within the hours allowed. Usually 20 hrs/week term-time. 



> - will the type of settlement / spouse visa she will get after switching be similar to ordinary spouse visa in terms of time and restrictions or slightly different, I heard, she will get extensions of 2.5 years few times.


Her initial leave to remain will be for 2.5 years, to be renewed for further 2.5 years, with same conditions as spouse visa obtained abroad. The only change is she can apply for naturalisation sooner, as her time spent as student is taken into account in the 3-year residential qualification.


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## SoYouThink (Sep 8, 2013)

Thank you Joppa, 

If I can sponsor my wife for accommodation and living cost, does she still need to show around £800/£1000 x 9 months on her account for a valid period of 28 days, before applying? 

Thanks


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## Joppa (Sep 7, 2009)

SoYouThink said:


> Thank you Joppa, If I can sponsor my wife for accommodation and living cost, does she still need to show around £800/£1000 x 9 months on her account for a valid period of 28 days, before applying?


No, but your support must equal or exceed the amount given, i.e. your bank balance at the end of each month must be at least equal to £800/£1,000, minus housing cost.


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