Spouse visa applications under the five-year route are often seen as a clear pathway to settlement in the UK. However, even small errors at the end of this journey can have major consequences. Our immigration team recently assisted a client who had completed five years on a spouse visa but inadvertently jeopardised his settlement by failing to apply for Indefinite Leave to Remain (ILR) in time.
Client Background
Our client, a non-UK national, was married to a British citizen and had two children in the UK. He had successfully lived in the UK for five years under the spouse visa (five-year partner route) and was due to apply for ILR. However, instead of applying for settlement, he mistakenly submitted an application for an e-visa account, believing this was part of the renewal process.
The Home Office informed him before the expiry of his visa that his e-visa account could not be set up and advised him to make an extension application instead. Unfortunately, he did not take further action, and as a result, overstayed his visa by just over a month.
The Complications of Overstaying and Financial Requirements
When the client came to us for advice, he had already lost his right to work due to his immigration status and was relying solely on savings. He was also unable to accept a new job offer due to the overstay. At this point, he wanted to ensure that he could reapply under the five-year partner route and not be diverted onto the ten-year route, which would significantly delay his path to settlement.
The client’s situation presented multiple challenges:
- He was now an overstayer in the UK and had no valid leave at the time of the new application.
- The family income requirement had increased from £18,600 to £29,000, and he was relying solely on cash savings.
- To meet the financial requirement using savings alone, he needed to show at least £88,500 held for six months.
- We also needed to address the overstaying under the suitability requirements in the Immigration Rules.
Reapplying from Abroad and Mitigating the Overstay
After reviewing all possible routes, we advised the client that the most appropriate step was to leave the UK voluntarily and make a fresh spouse entry clearance application from overseas. This meant:
- Meeting the increased financial requirement in full by relying on savings.
- Carefully addressing the one-month overstay in the application, making clear this was a one-off mistake and not reflective of a pattern of non-compliance.
- Highlighting his strong family life in the UK, his previous full compliance with immigration rules, and the urgency of returning to his British wife and children.
- Submitting a detailed legal representation that explained the context of the error
Given the client’s urgency, particularly his desire to rejoin his family and accept a new job offer, we fast-tracked the preparation of the application and opted for priority service.
Outcome: Spouse Visa Approved But With a Reset Clock
The entry clearance application was approved, and the client successfully returned to the UK within weeks. He was able to reunite with his family and begin the new job he had previously been unable to accept. However, because his previous leave had lapsed and he was now entering on a fresh grant of leave, the clock for the five-year partner route was reset. He will now need to complete another five years before being eligible for ILR again.
Final Thoughts
This case serves as a cautionary example of how critical it is to submit the correct application at the right time and what can happen if don’t.
- Overstaying Has Consequences: Even a brief overstay can result in the loss of accrued time towards ILR and, in some cases, a refusal under the suitability requirements.
- Savings Can Bridge the Gap But Only If Done Right: If relying on savings, applicants must ensure they meet the exact thresholds and evidence requirements, especially under updated financial requirements.
- Previous Residence Lost: If leave lapses and a new entry clearance is granted, previous residence under the partner route does not count towards ILR under the five-year route.
If you need tailored advice on your application, consulting an experienced immigration solicitor can help improve your chances of success.
At Saracens Solicitors we have extensive experience dealing with various types of applications, including issues of overstaying. We will provide you with the support and guidance to ensure that your application is made correctly and that all the relevant issues are highlighted and addressed. Please call our immigration team on +44(0)20 3588 3500.
