Uk Visa For Step Daughter Refused

[mrogan]

Hi,

I'm a UK citizen living in the UK with my Thai wife, who's been on Indefinite Leave to Remain for the last 4 years now. We'd love for her daughter to come over for her school holidays during April time. She's 12 and currently living with her maternal grandmother.

The Application

We did apply for a visit visa last November but the embassy indicated that it was likely to be refused because my wife came to the UK initially on a visit visa herself, but got married here and subsequently remained in the country, a "big no-no".

As my wife was making the application by herself (I couldn't be present) she accepted this information verbally and decided not to take it any further. Had I been there myself I might have asked few pointed questions, but I wasn't and I'm now relaying what happened second-hand.

Note that we had lots of supporting paperwork including custody papers. I have a well-paid job. We have a mortgage and savings. None of these issues were mentioned at the embassy so I assume they're all in order.

The Background

When my wife applied for her first UK visit visa five years ago it was granted on the promise that she return to Thailand when it expires. In fact this was her third application, the previous two being refused as they were not convinced that she would return to Thailand once the visa had expired. This third application was accepted within five minutes, including a phone call to myself in the UK in which the official apologised, to me, for the first two refusals! I thought the whole process was strange. In any case she arrived in the UK in 2000 on her six month visa.

While here some friends "advised" me that if we were to get married in the UK that a settlement visa could not be refused. I phoned the Home Office and they confirmed this, with the caveat that all applications are granted depending on individual circumstances and by no means automatic. We duly got married here, applied for the visa, which was quickly granted. One year later we applied for Indefinite Leave to Remain, again granted by the Home Office without incident, and here she's stayed with short trips back to Thailand once or twice a year. She's been in full-time PAYE for years, and we've since had a baby in the UK together and another one is on the way. We have yet to apply for naturalisation as we were always in need of her Thai passport, but will submit the application shortly and would hope to be in possession of a UK passport around November time.

The Refusal

So, the embassy refused the application for my wife's daughter because my wife failed to return to Thailand on her initial visit visa. Does this mean that my wife's Indefinite Leave to Remain is invalid somehow, or because it was issued by the Home Office it is subject to some kind of restrictions in Thailand? If I had been told by the Home Office that she needed to return to Thailand and apply for a settlement visa at the embassy then we would have done so, but they did not say any such thing. As far as I am aware Indefinate Leave to Remain is just that, no matter where it is given, and certainly without restrictions on family members coming to visit. It seems, to me, that the embassy has it's knickers in a twist because it didn't collect the fees on a settlement visa. Or am I missing something? Can anybody please explain why Indefinite Leave to Remain as issued by the Home Office in the UK is any less worthy that that issued by the British Embassy in Bangkok?

Assuming the embassy's concerned that my wife's daughter will not return to Thailand after her visit, then does it follow that we should apply for a settlement visa straight-out? That way she won't have to return! But then, if she does return, haven't we applied for the visa on a false premise? Does the visa become void if she returns to Thailand for some extended period?

It seems straight-forward to me. My wife's daighter wants to come for a visit. We should apply for a visit visa. If the visa is being refused because she might not return, then they are calling me, my wife and her daughter, all liars. If a Home Office stamp is not good enough as evidence of my wife's entitlement to reside in the UK, then they are implying we obtained it under false premises, it is therefore void and we should all go and live in Thailand. Problem solved.

Any advice or general pointers greatly appreciated.

Martin

[Totster]

Over to you then Scouse...

totster

[the scouser]

I've got to go to work now but I'll give you a more detailed response tomorrow. Basically, it would appear that the embassy is not satisfied that your step-daughter will leave the UK at the end of her holiday, presumably because her own mother entered on a visit visa and then sought to stay. You wife's ILR is in no way invalidated, the embassy is just accusing her of having got it by the back door. The rules have, indeed, changed now to prevent people entering on visit visas, marrying and then applying to settle. Your step-daughter should, anyway, have the right of appeal against the decision.

I'll post a bit more tomorrow.

Scouse.

[the scouser]

I'm back.

The immigration rules stipulate that a visitor must satisfy the immigration officer that they will return to their home country at the end of their holiday. This can be a largely subjective assessment and is based on the legal burden of the balance of probablities which is easier to attain than the criminal burder of beyond reasonable doubt. One of the factors the visa officer will take in to account is the immigration history of immediate family; i.e. whatever the one member has done it is probable that another may do. Your wife's immigration history is a fait accompli and it therefore might be difficult to persuade a visa officer that her child would indeed not attempt to follow the same route as she did.

If you were to seek and obtain a settlement visa for your step-daughter, she would be given indefinite leave to enter the UK as this is what her mother has. Such an endorsement would allow her to come and go freely between Thailand and the UK without a visa as long as she didn't spend more than 2 years outside of the UK. However, holders of ILE/R should, in principle, be resident in the UK and if a UK immigration officer were to have cause to believe that your step-child was not, in fact, settled then she could be refused entry, but this is quite unlikely.

Best of luck Scouse.

[mrogan]

Thanks for all that scouser!

I still have an issue with the embassy's view of the Home Office as a "back door". If the leave was obtained legally and they don't like it then tough. They should change the rules. Ooops, they did! But seriously if I'd known all this when we applied in the UK then we would have gone back to Thailand and done it all there.

I guess we'll go through the same visit visa application as before, but I'll make sure I'm there this time to push it as far as possible. Is it still true that the only way to lodge the application is in person at the embassy? Still nothing I can do from the UK? It's this three months between the application and the interview that kills me everytime. It costs thousands in air tickets, not to mention time off work.

Thanks again,

Martin

[the scouser]

Hi Martin,

An application can be lodged by post. The applicant then only needs to show up at the embassy for the interview.

Best of luck,

Scouse.

[mrogan]

Thanks Scouse,

I found this page re lodging applications by post:

Embassy Dropbox Page

It would appear that because my wife's daughter has been refused before that this facility cannot be used. Any thoughts on trying anyway as all we're aiming at is an interview date [not an acceptance]? I've tried emailing this question to the embassy before but I get the disctinct impression I'm wasting their time.

Thanks for all you help,

Martin

[the scouser]

Martin,

For the reason that you state, I don't think the embassy would take in a "drop-box" application. However, there is nothing preventing you just posting the application form etc. directly to them with a letter requesting an interview date.

Scouse.