Best Route For New Visa?

[Philbot44]

Can anyone suggest the best way forward for renewing my wifes visa to uk?

First I best provide some history;

Obtained a fiance visa and then got married July 2006 in UK so progressed to a 2 year resident visa

4 months later got a job in UAE and we both lived there for 3 years

Obviously the resident visa expired so I replaced it with a 5 year (6 month per visit) visa.

I returned back to the Uk in September 2009 and my wife has been using her 5 year visit visa to stay here 6 months a time but its getting expensive having to pay for her to travle back to Thailand every 6 months and apart from that we really need to progress to Settlement visa.

So I have been doing my research and it basically says we have to apply in Bangkok again can someone tell me if that is true?

I am also confused as to which form to use and there is a returning resident form, the IRL form and there is some stuff about if we have been married for 4 years which we have then we could go straight to a settlement visa even if some of the time has been spent outside the uk?

Can someone please offer me some guidance on the best approach to take as its not clear to me due to my circumstances of having left the uk and the 2 year visa expired, the questions about when we met etc. do not seem approriate anymore so maybe I do use a different form but I would hate to get it wrong and get refused and forfiet the money too.

Any help most appreciated.

Phil

[Philbot44]

here is an extract from the UK Border Docs what is getting me confused especially the bit about the 4 years

If you are currently outside the UK

If you are subject to immigration control and you are married to or in a civil partnership with a British citizen or person who is settled here, you can apply for permission to come to the UK in this category.

Your husband, wife or civil partner must be at least 21 years old (or 18 years old if you or they are a serving member of HM Forces), and must be:

 currently living and settled in the UK; or

 returning to the UK with you to live here permanently.

You must show that:

 you are legally married to each other or have registered a civil partnership;

 you are going to live together permanently as husband and wife, or as civil partners;

 you have met each other;

 you can support yourselves and any dependants without help from public funds;

 you have adequate accommodation where you and your dependants can live without help from public funds; and

To find out how to apply, see the Applying from outside the UK page.

If your application is successful, we will give you permission to live and work here for up to 27 months. This is called your probationary period. At the end of two years, you may apply for permission to settle permanently in the UK (known as 'indefinite leave to remain') as the settled person's husband, wife or civil partner.

We may be able to give you permission to live permanently in the UK as soon as you arrive, if:

 you and your partner married or formed a civil partnership at least four years ago;

 you have spent those four years living together outside the UK;

 you are both coming to the UK to settle here together; and

 you have sufficient knowledge of the English language and life in the UK. (You do not need to meet this last requirement if you are aged 65 or over.)

Edited July 4, 2010 by Philbot44

[7by7]

She does not qualify as a returning resident as she did not have ILR before she left.

So she needs to apply for settlement as your spouse, using form VAF4A. She must apply in her country of residence, so assuming she is now living in Thailand then she does apply in Bangkok. See UK visa application centre, Bangkok for where and how to apply, TB test requirement, fees etc..

If she meets the requirements for ILE, then this is what she will be granted; if she doesn't, then she will be granted a 27 month settlement visa and after 24 months living in the UK she applies for ILR.

I think it is unlikely that she will be granted ILE as the basic requirement is that the applicant and their British spouse/partner must have been living together outside the UK for at least 4 years; which you haven't.

See Uk Settlement; Spouse Visa Or Ile? Have you been married for 4 years or more?

[Philbot44]

She does not qualify as a returning resident as she did not have ILR before she left.

I think it is unlikely that she will be granted ILE as the basic requirement is that the applicant and their British spouse/partner must have been living together outside the UK for at least 4 years; which you haven't.

by7 thanks for your reply and the links to other posts were really helpfull.

Agreed I havent been living outside uk for 4 years but can prove living together since she arrived in uk on fiance visa since Feb 2006 and married now for 4 years so not sure why you think we would not get ILE and can sort out the ILR when we are back in the UK later having of course done the KOL.

If we do only get LLR or ILE is it possible to skip the ILR and go from LLR or ILE to Nationalisation considering that we will have been living in the uk for 3 years come the time the new LLR/ILE will run out as my wife will have already been here living with me in the uk for a year prior to this using her visit visa and it will all be consecutive?

Can proof of living together whilst in the UAE be in the form of passport stamps i.e. coming and going to/from uk to uae and UAE to thailand? there is little else I could use other than our resident visas for the UAE which I could photocopy from our passports?

I have also recently set up limited company here and made my wife 50% shareholder/director as my accountant told me shareholders do not have to be a resident of the uk will this be in my favour too?

thanks again

[7by7]

As I said previously and as the UKBA guidance you yourself quoted confirms, in order to qualify for ILE the applicant must have been living with their British spouse/partner for the last 4 years outside the UK.

From what you have said you and your wife moved to the UAE round about October 2006 and lived there until September 2009; that 's only 3 years. Since then you have been living in the UK and she has been living elsewhere, presumably Thailand, and using her visit visa to stay with you in the UK. Therefore I think it unlikely that she will be granted ILE.

However, she applies on the same form, presenting the same evidence as she would for a 27 month settlement visa and paying the same fee. If the ECO feels that she does qualify for ILE, then that is what will be granted. If not then she will be granted a 27 month settlement visa.

From what you say, I assume that she has not yet satisfied the KOL requirement, in which case even if she were to be granted ILE it would be subject to KOL and she would still have to then apply for ILR once she was in the UK and had satisfied the KOL requirement. The only difference between this and a standard 27 month visa is that she would be able to apply for ILR immediately she satisfied KOL and not have to serve a 24 month probationary period in the UK before she could do so.

All theoretical in my opinion as I don't think she'll get ILE anyway.

You should supply as much evidence of your living together as possible; and the UAE residency visas etc. in your passports will be part of this. Obviously she will need to submit her actual passport with the application, but photocopies of the relevant pages in yours are acceptable; but remember to certify that each copy is genuine ("I, name, certify that this is a genuine copy of page number of passport number..... (signed)").

To qualify for naturalisation as British she must firstly be in the UK without any time limit on her stay; i.e. ILE. ILR or the equivalent. So if she is issued either ILE subject to KOL or 27 months LLR as a spouse, she will still have to obtain ILR before she can apply for naturalisation. She would need to do so anyway when her LLR expired or she would have to leave the UK!

She must also satisfy the residential requirement. For the spouse of a British citizen this is:

She must have been in the UK on the exact date 3 years prior to submitting the application.<BR>During the intervening three years she must have spent no more than a total of 270 days outside the UK, with no more than 90 days in the final year.

Time spent in the UK as a visitor, or any other category, does count towards this qualifying period.

Making your wife a shareholder in your company wont really affect her application, as the requirement for her to be financially supported says that the funds can come from her resources, those of her partner or even a third party; or a combination of these. That the income from your company is now split between the two of you rather than yours alone makes no difference. See Maintenance and accommodation

I am concerned that you say "........my wife will have already been here living with me in the uk for a year prior to this using her visit visa .........."

Visitors are only allowed to spend a maximum of 6 months in the UK per visit. Although not a rule as such, there is also a convention that they should not spend more than 6 months out of any 12 in the UK, unless they have an exceptional reason for doing so. Being with a UK spouse would not be considered exceptional as she could, and should, have applied for settlement if she wanted to live in the UK with you.

If she has overstayed her visit visa this could have serious consequences when she applies for settlement.

[Philbot44]

thanks again,

Well she has not overstayed her visit visa, she stayed about 5 months then we went to thailand for holiday (or in her case she went home) for approx 5 weeks then we returned again to uk on the same 5 year multiple visit visa so the plan is return to BKK before the next 6 months is up and as you say apply for Settlement.

I am ok with what needs to be provided generally so we will just have to wait and see what mood the ECO is in on the day, I will make sure I do a decent introduction showing our history together over the last 4.5 years and hope it might swing it, do you think it unwise to ask for a ILE in the introduction or hould we just let them decide on the evidence presented? Just that with it being on that VAF4a form some may not even consider that we just might be eligble for a ILE.

There was one other thing that I noticed on the website, it states that any document in thai needs to be translated but when you click on there link which takes you to a tabulated list of what documents are required at the bottom of this it states there is no need to translate the documents?

Funny last time i did this I had loads of evidence of phone calls and letters now I do not have any of this type as we have infact been living together for 4 years so I guess I am going to have to prove by other means i.e. passport visa's holiday snaps and joint bank accounts not sure which was easier now!

Do you think that as we have had a previous settlement visa and subsequent 5 year visit visa this would be taken into consideration too?

Sorry one more Question, the box where you tick do you wish to work is it a good or bad idea to tick it or not its very subjective to me?

Thanks again for all you assistance

Edited July 5, 2010 by Philbot44

[7by7]

Well she has not overstayed her visit visa, she stayed about 5 months then we went to thailand for holiday (or in her case she went home) for approx 5 weeks then we returned again to uk on the same 5 year multiple visit visa so the plan is return to BKK before the next 6 months is up and as you say apply for Settlement.

To not fall foul of the "not more than 6 months out of any 12" convention, she needs to leave the UK one month after entering it the second time; or come up with an exceptional reason for staying longer. Wanting to be with you would not, in my opinion, be acceptable as the ECO will ask, quite rightly, why she didn't apply for settlement when she was in Thailand for 5 weeks.

The ECO will judge the application as a whole on it's merits, and issue the appropriate entry clearance for the circumstances. You can ask about ILE if you want in the application, but she doesn't qualify as you have not lived together outside the UK for the last 4 years! Doesn't matter what mood the ECO is in, that is the rule.

Yes, the VAC website does contradict the document checklist; my advice would be to provide translations.

That you she has previously been granted a settlement visa as your fiance and then FLR as your spouse is a strong point in your favour, as is the UAE visa she got to live with you there. Obviously you cannot provide phone records etc. as you have been living together, so simply explain the situation in your covering letter and if you have evidence of living together, such as mail addressed to each or both of you, include that too.

Spouse visa holders are allowed to work, so ticking it or not will make no difference; unless you are relying on any potential income she may have from UK work to meet the maintenance requirements.

[Philbot44]

To not fall foul of the "not more than 6 months out of any 12" convention, she needs to leave the UK one month after entering it the second time; or come up with an exceptional reason for staying longer. Wanting to be with you would not, in my opinion, be acceptable as the ECO will ask, quite rightly, why she didn't apply for settlement when she was in Thailand for 5 weeks.

Well the reason we did not renew it was that I was unsure if I was going to stay in the UK i.e. was working in uk but still looking for a job overseas but we have now decided to stay in the uk.

I must admit I did not read the small print in INV2 regarding the 6 months in any 12 month period so I suppose I had better explain the reason for going over the 6 months but then we originally had legitimate reasons for going down the visit route but circumstances have now changed.

Lets hope that its all ok.

Thanks once again 7by7

[7by7]

The potential problem here is whether or not she would be considered an overstayer if she were to spend more than 6 months out of 12 in the UK as a visitor; especially as she had not breached this convention when she last entered the UK.

I cannot find any clarification on this in either the Entry Clearance Guidance nor the Immigration Directorate Instructions.

Para 320(7B) of the immigration rules states that an applicant should be refused entry clearance if they have previously overstayed in the UK within the last 12 months to 10 years (depending on the circumstances of their leaving the UK).

However, Para 320(7C) says that Para 320(7B) doesn't apply to those who, among other exceptions, are applying for settlement as a spouse.

But, Para 320(11) does apply to spouses! To be refused under Para 320(11) the ECO has to be satisfied that the applicant "contrived in a significant way to frustrate the intentions of (the immigration rules)." Would spending 11 months out of 12 in the UK as a visitor be considered such? I'm not qualified to answer that.

However, in the latter half of 2009 two members here asked for advice because their spouses had been refused under Para 320(11) after overstaying. Both appealed against the refusals and as far as I'm aware those appeals are still ongoing.

I don't want to worry you, but do feel that you need to be aware of this potential difficulty. This forum has at least two qualified OISC advisers as members (although one doesn't post much any more). Hopefully one of them will see this topic and be able to advise you further.

Or you could try asking the Immigration Advisory Service.

Other than that, my advice is don't leave it and hope that it wont matter. It may not, but it just may!

[Philbot44]

I have just put together a document to show her movements since entering the UK and as you can see in the attached shortly after obtaining the settlement visa we left to live in UAE but thats just a fact of life that circumstances can change and obviously change back and unfortunately she has used more than 180 days in 12 months on the multi visit. Customs did ask last time she arrived why didnt she apply for settlement visa and like I said at this time wasnt sure if we were staying in the uk but we are now and will get documents ready this visit and do settlement visa on return to thailand. I dont suppose my ignorance of the 6 months will hold any weight?

So as you say if its not correct to enter for more than 6 months should they of disallowed entry at that time?

I intend to provide them with a copy of this file with the same for myself to show are movements together along with the passport copies signed as suggested and of course a good explaination to it all.

Movements.docx

Edited July 5, 2010 by Philbot44

[7by7]

I dont suppose my ignorance of the 6 months will hold any weight?

Unfortunately, ignorance of the law is not usually acceptable as an excuse; in a court for example.

So as you say if its not correct to enter for more than 6 months should they of disallowed entry at that time?

From the document you have provided, counting back from her last entry (3rd May 2010) she appears to have spent just under 6 months out of the preceding 12 in the UK so should have been asked about this by an IO when seeking entry on that occasion. However, unless the IO has some reason to be suspicious it is unlikely that they would go through someone's passport looking for this.

When she applies for her settlement visa, the ECO will check her entries to the UK to see if they tally with what your wife has said in her application. Of course, the UK doesn't stamp passports on exit, but the entry stamps to the UAE and Thailand will give a pretty clear picture.

They may question the amount of time she spent in the UK as a visitor, they may not. They may accept your explanation, they may not. To be honest, the amount of time over the 6 months is so small that I suspect they will ignore it. You should still explain the reasons for it in your covering letter, though.

I'd be interested to see what ThaiVisaExpress has to say; he is the professional.

[Philbot44]

Well our application has been delivered to the embassey so I will keep you all posted.

I wasnt aware that it could now take up to 12 weeks! Looked at last months performance and shows 25% in 5 days etc. so I am hoping that as my wife has already held a resident visa it should not take to long.

[the scouser]

Providing that the visit visa remains valid and the holder has not spent more than 6 months in the UK at any one time, their presence is lawful and they cannot be construed to be an overstayer.

There is nothing in law that stipulates a visitor may only spend six months of twelve in the UK.

Scouse.

[Philbot44]

Well thanks scouser that makes me feel so much better about our application. It was really the only thing I was concerned about everything else should be fine since its just another ILE but I have requested if they could grant ILR subject to KOL so lets see what they eventually decided.

[Mercury]

Do the KoL test thing now and then you won't have to pay to change ILE (if granted) into ILR

[the scouser]

No one has to pay to change ILE in to ILR anyway: the two are synonymous.

One denotes a status given on entry, and the other within the UK.

Scouse.