New Zealand Couple On Ancestry Visa Denied Indefinite Leave To Remain

A New Zealand couple who missed a deadline for their Indefinite Leave to Remain (ILR) application are facing deportation from the UK.

Louise and John Talbot have lived in Dorset for six years while helping their sons establish a cattle farm, but they've been ordered by the Home Office to leave the country after falling into "a grey area" in the rules.

Louise Talbot said the couple and their son, Charles, ticked all the boxes to qualify for ILR, as they already had UK ancestry visas.

Charles is studying at a British university, while his older brother, Edward, was born in England, and has dual citizenship with New Zealand.

How the couple missed the ILR application deadline

UK law states that an ILR application should be made no more than 28 days before the end of a migrant’s permitted stay. The Talbots therefore, booked a face-to-face application appointment and paid £5,700 for ‘same day’ consideration.

However, it was only later that they realised that despite having an ancestry visa, they still had to sit the Life in the UK test. Mr and Mrs Talbot passed the test straight away, but their son, who was sitting his university exams at the same time, had to take the test three times before he passed. This delay meant that when they finally submitted their application for ILR, it was out of time.

Eligibility criteria for ILR on an Ancestry Visa

To be eligible for ILR on an Ancestry Visa you must:

• continue to be a Commonwealth citizen
• be aged 17 or over
• have a UK-born grandparent
• be able to work and intend to take or seek Employment in the UK
• can maintain and accommodate yourself and any dependants adequately without recourse to public funds
• have spent a continuous period of five years in the UK in the UK ancestry category
• submit a letter and relevant supporting documents detailing the reasons for any absences throughout the qualifying period that were for serious or compelling reasons
• pass an English language and Life in the UK test
• not be in breach of any UK Immigration laws, except that any period of overstaying for a period of 28 days or less will be disregarded

Ability and intention to work in the UK

A person with leave under UK ancestry is not required to be continuously employed throughout the five-year period in the UK. If an applicant is unemployed when they apply for ILR, they must provide evidence throughout the five years of:

• their Employment in the UK, and
• any attempts they have made to find work.

If the applicant has been unemployed for long periods over the five years, they must:

• give reasons why thsey have failed to find work
• provide evidence that they have been looking for work, and
• provide evidence of how they have been supporting themselves without a regular income.

If an applicant is in Employment or self-Employment, evidence of their current work only is required.

Home Office guidance provides that when assessing whether periods of unEmployment are long enough to need this evidence, they must consider:

• the amount earned during any periods of Employment, and
• whether this has continued to maintain the applicant when unemployed.

Family members

A partner of a person with UK ancestry is eligible to accompany or join them in the UK if:

• they are the spouse, civil partner, unmarried or same-sex partner of a person with leave in the UK ancestry category
• in the case of being the unmarried or same-sex partner of a person with leave in the UK ancestry category:

a) any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down

b) they are not involved in a consanguineous relationship with one another

c) they have been in a subsisting relationship akin to a marriage or civil partnership for at least two years immediately prior to the application, and can show that they have lived together over that period

• the relationship is subsisting at the time of the application
• they and their partner intend to live with each other as partners throughout their stay in the UK
• they do not intend to stay in the UK beyond any period of leave granted to the person with UK ancestry
• there will be adequate accommodation for the couple and any dependants without recourse to public funds, in accommodation which they own or occupy exclusively
• they will be able to maintain themselves and any dependants adequately without recourse to public funds, and
• they are not refused under general grounds

Although evidence of financial resources available to the dependant must be provided, there is no requirement for dependants of Ancestry Visa holders to show a specific amount of funds to have been available for a specific period.

Dependent children under the age of 18 may also be granted ILR.

Would the family have been better off making a postal application for ILR?

After investigating similar cases, Mrs Talbot believes that paying thousands of pounds for same-day consideration has actually counted against her family.

She told a New Zealand newspaper that, “if we had applied via the postal application system, we "absolutely" would have been successful”.

This is because around 42% of postal applications were incomplete or contained errors, but those applicants were given extra opportunities to meet the requirements, and had a longer timeframe to do so.

Instead, her family had fallen into a grey area in the system.

The family is currently working with their local MP to try and avoid deportation.

OTS Solicitors is one of the most respected Immigration law firms in the UK. By making an appointment with one of our Immigration solicitors you can be assured of receiving some of the best legal advice available. If you need legal advice on applying for ILR, please contact us today so we can assist you.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.