Cost Of Entry Clearance

[bkk_mike]

Background:

My wife has Indefinite Leave to Remain in the UK, but we now live in Thailand. - We go back and live in the UK for the 2 months of the school summer holidays each year and we still have a house there. We have no problems on arrival in the UK because we simply say we live in the UK in the summer, and in Thailand in the winter.

We only lived in the UK continuously for a couple of years after she got ILR, so not long enough for her to have applied for a British passport.

What I want to know is - if she does stay out of the UK for the full 2 years for her ILR to lapse, is the application for entry clearance just a rubber-stamping job at the embassy (we are still married, with kids with dual nationality, etc.)? Or is it a full new settlement visa required - with the accompanying £260 and 12-week waiting list for interview?

[the scouser]

Unfortunately the latter. She would have to start from scratch again. Two years and then apply for ILR.

Scouse.

[bkk_mike]

Thanks

So that means summers in rainy London for the foreseeable future.

(Unless I lose the job that lets me telecommute and we have to go back full-time )

[plachon]

Unfortunately the latter. She would have to start from scratch again. Two years and then apply for ILR.

Scouse.

Is this for real Scouse? Bad news if it is, as my wife's in the basic same situation as Mike's, but she hasn't been back to the UK since Nov. 02. She has the ILR in her passport, but I was under the impression that UK immigration had leeway to decide about contunuation of ILR status if the person was out of UK for more than 2 years i.e. done on a case by case basis.

So, I guess I have 2 questions now: 1. If you're sure about this, could we ask at the Brit Embassy to extend her ILR status to next year when we actually intend to return to UK for a visit; and 2/ If you think it can't be swayed, will her ILR status remain valid for another couple of years, if she goes back for a short visit (like a week), before Nov this year?

Cheers for your take on this mate.

[the scouser]

Hi Plachon,

I am sorry to confirm this, but, yes. UK immigration does not have any discretion to extend the validity of either ILE or R. Even if they did, somebody in this situation would not be allowed to board their flight to the UK unless they held another visa because their ILE/R would have expired. So, basically, should your wife's ILR expire then she will have to apply for another settlement visa and serve the probationary 2 years again before applying for ILR. Also when applying for the visa she would have to convince the visa officer that the 2 of you were genuinely returning to the UK to settle.

There is a rule which does allow a spouse to get a visa which automatically grants ILE but this is only for those who have been married for 4 years or more AND since their marriage have lived outside the UK.

For your information there follow the admission criteria to be met by a someone with ILE/R. Should these not be met then the person may be refused entry. Should your wife travel to the UK prior to her ILR lapsing then NB (iv):-

Returning Residents

18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:

(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and

(ii) has not been away from the United Kingdom for more than 2 years; and

(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and

(iv) now seeks admission for the purpose of settlement.

In a nutshell, neither immigration nor the embassy can extend the validity of your wife's ILR. Should she decide to return to the UK before November to "top up" her ILR on no account should she tell the immigration officer that that is her purpose.

Hope that's of help,

Scouse.

[plachon]

Thanks for the reply Scouse. It got me worrying about what we should do, as we don't want to return to UK so soon, either for the expense or hassle involved.

Went searching through my wife's documents and came up with a leter from the Home Office they sent in 2001 with her ILR. It says this:

"If your absence from the UK is for longer than 2 years but you can still demonstrate that you had indefinite leave to enter or remain here when you last left, and you are returning for the purpose of resettlement, you may still qualify for admission as a returning resident if, for example, you have maintained strong connections with this country".

(Still being married to me and part-owning property there suggests she has)

It goes on: "You do not require a visa to return to the UK provided you are returning for settlement after a period of 2 years or less. However, if you are returning for settlement to the UK after an absence of over 2 years, you are advised to apply for an entry clearance at the nearest British Diplomatic Post in the country in which you are living. This should facilitate your re-admission to the UK."

Therefore, I take this to mean that should we decide to return next year, we just have to get some kind of "clearance stamp" from the Brit Embassy, and not a whole new visa for her, as you suggest, and her ILR will not be invalidated. Or am I misunderstanding what the letter is saying for somebody who's been outside UK for 2 years?

[the scouser]

Hi Plachon,

If your wife's ILR expires then, as the Home Office letter says, she MAY allowed to keep the status but she would have to have strong connections to the UK and I don't know if being married to a Brit is sufficient. Indeed, your wife would not be going to the UK to settle but just to top up her ILR and is therefore unlikely to qualify for returning resident status anyway. I advise giving the embassy a bell and asking.

Furthermore, she would have to obtain clearance from the embassy before travelling and this would be in the form of a returning resident visa which costs £260.00 and you wife would require an interview to enable the visa officer to establish precisely how strong her connections are to the UK. The visa officer would also establish that you and your wife would be settling in the UK. If you were not then this would become apparent at the interview and your wife would be denied the RR visa.

Scouse

[the scouser]

Hi Plachon,

There follow the guidlines for how visa officers should consider RR applications for those whose ILE/R has lapsed.

Hope it's of assistance in preparing your wife's application although I can't reinforce strongly enough that she would have to be resuming her residency in the UK and if she isn't then the application may well be refused. The bold and italics in the instructions are mine.

Scouse.

20.3 - Assessing the application

You should adopt a common sense and flexible approach when assessing a returning resident application. The benefit of the doubt should normally be given to the applicant if he/she is apparently bona fide, i.e. it will not normally be necessary to make any further enquiries about a person’s plans if it is clear that his/her ordinary place of residence is the UK.

Many people who have their home in the UK may spend substantial periods overseas, for example on business, or studying, or visiting relatives. This does not disqualify them from re-admission as a returning resident provided that they are normally resident in the UK, or intend to resume residence there, and have not been away for more than two years.

There are exceptions to the two year rule which are covered in separate sections below

If you have clear reasons to doubt that the applicant can be treated as a returning resident, you should make any enquiries necessary to establish the applicant’s intentions. For instance, persons resident overseas cannot maintain settled status in the UK by paying short visits before resuming residence overseas. In such cases the applicant should be treated as a visitor.

Evidence to support a claim:

You can normally find evidence in support of a claim to be a returning resident in the applicant’s passport. This will be in the form of entry and (old) embarkation stamps endorsed by Immigration Officers and stamps confirming the grant of further or indefinite leave to remain endorsed by the Home Office. Be aware, however, that embarkation stamps are no longer used (see Chapter 1 for further details).

Questions put to the applicant may sometimes elicit indications that the claim to be a returning resident is a fraudulent one. Inability to speak any English or to describe the town in which the person claims to have lived previously in the UK will be grounds for closer examination.

20.4 - Exception to the two year rule for those who have strong ties to the United Kingdom:

Paragraph 19 of the Rules provides for persons who, although they may have been out of the UK for more than two years, have ties with the country which merit admission. You should consider the following factors in assessing whether strong ties exist:

the length of the original residence in the UK;

the time the applicant has been outside the UK;

the reason for the delay beyond the 2 years - was it through their own wish or no fault of their own (e.g. having to care for a sick or elderly relative)?;

the reasons for leaving the UK and for now wishing to return;

the nature of the family ties in the UK;

how close are they and to what extent have they been maintained during the absence?

do they have a home in the UK and, if admitted, would they remain and live there?

The longer a person has remained outside the UK over 2 years, the more difficult it will be for him/her to qualify for admission under this provision. No hard and fast rules can be laid down but the longer the previous residence in the UK, the stronger would be the case for consideration, provided that there had not been a break in residence extending over a number of years.

Other more specific circumstances which would support an application are:

travel and service overseas with a particular employer before return to the UK with the employer;

service abroad for the UK Government, or as a dependant of a member of H M Forces or as an employee of a quasi-governmental body, a British company or a United Nations organisation;

employment abroad in the public service of a friendly country by a person who could not reasonably be expected to settle in that country permanently;

a prolonged period of study abroad by a person who wishes to rejoin the family in UK on completion of studies;

prolonged medical treatment abroad of a kind not available in the UK.

End of instructions.