Settlement Visa + Tourist Visa

[Missing My Tom Yam]

18 months ago my wife received a settlement visa for the UK, as declared on the application form, we moved to the UK permanantly.

However, a month ago I had an offer to work elsewhere in Europe, for the same employer and paid/taxed in the UK.

Now comes the catch.

My wife went to the UK today to hand over some documents relating to the sale of a plot of land we have, she's going to be in the UK for two days, but I'm remaining in Europe because of work.

So she turns up at LHR and the imigration officer checks her passport and spots her 1 year Schengen Visa - Then

'What are you doing living in Europe?'

'I'm with my husband who is working in Europe'

'Where is your husband today?'

'He's at work' (Paying tax to HMG)

'Why haven't you got a tourist visa?'

'I'm not a tourist'

'But you aren't living in the UK, so you are visiting'

'We have a home in the UK, I'm going to my home in the UK'.

Calls supervisor

Supervisor comes and tells my wife.

'We are going to let you through this time, but next time you need to apply for a tourist visa'

NOW THE OTHER CATCH

You can't apply for a tourist visa at an embassy anywhere, not just Europe, unless you have lived in the country legally with full visas for more than twelve months.

So in theory my wife would have to go back to Thailand to apply for a tourist visa to visit our home in the UK, despite the fact that she already has a settlement visa.

What utter Bullsh1t.

[mrbojangles]

That's concerning, i thought a Settlement Visa was a multi-entry visa

I think your right "what utter bullsh1t"

[the scouser]

A settlement visa is good for multiple entries. However, it is issued on the basis that you are settled, i.e. living, in the UK with your spouse. Should the holder be neither settled nor travelling with/going to reside with their spouse, then a visit visa is required. The airline with which your wife flew may well now have been charged £2000.00 for bringing in an improperly documented passenger.

It is possible to hold both visit and settlement visas simultaneously without one negating the validity of the other and applications for visit visas can be made at the nearest UK visa-issuing post. From the visa officer's instructions book:-

"applicants may apply for visit visas at any full Entry Clearance Issuing Post."

All-in-all, whilst I can understand your frustration, it's making a mountain out of a mole hill.

Scouse.

[Missing My Tom Yam]

All-in-all, whilst I can understand your frustration, it's making a mountain out of a mole hill.

I disagree, I believe the issue is quite important.

As you correctly state "[the visa] is issued on the basis that you are settled, i.e. living, in the UK with your spouse. Should the holder be neither settled nor travelling with/going to reside with their spouse, then a visit visa is required".

But I am "Habitually resident in the UK" something HM Inspector of Taxes was pleased to inform me last week. We maintain addesses in the UK we frequently travel to the UK and I pay my income tax in the UK.

But there is another related issue, European directives on the free movement of labour prohibit the any law, regulation or rule that restricts, discourages or penalises the free movement for the purposes of work of European Citizens AND THEIR FAMILIES within and between EU States.

The requirement that my wife obtain a second visa, is a restriction and because the visa has to be paid for, it is also a penalty (Note Schengen Visas issued within Europe are issued FREE of charge to the families of EU Citizens to avoid this rule).

The application of the regulations and rules relating to granting permanant leave to remain are even more interesting, I've engaged a lawyer to sort that mess out for us.

[Rinrada]

Bit of Info on Sch..... We dont want to play ball will those Johnny Foreigners.....etc

The Schengen Agreement

The name “Schengen” originates from a small town in Luxembourg where, in March 1995, seven European Union countries signed a treaty to end internal border checkpoints and controls. Since March 1995 more countries have signed the Treaty and currently there are 15 Schengen Countries.

These are: Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Italy, Greece, Luxembourg, Netherlands, Norway, Portugal, Spain and Sweden.

The idea behind the Schengen Agreement is to create a zone of easy cross border travel between member countries with the removal of internal border controls.

Citizens of countries that have implemented the Schengen agreement may cross the borders of other Schengen countries without any border checks.

This means that, because the UK is not a signatory to the Schengen agreement, UK citizens can be subject to checks on entering a Schengen country.

[Missing My Tom Yam]

This means that, because the UK is not a signatory to the Schengen agreement,

Yes I fully understand that the UK is not a signatory to the Schengen Agreement.

But the UK (Immigration Law and Regulations) is subject to EU law, EU law has primacy on all but a very few matters, the requirement to have and the checking of travel documentation being one.

However, above that are the EU laws on the free movement of labour, these expressly prohibit any Law, Regulation or Rule that restricts, discourages or penalises the free movement for the purposes of work of European Citizens AND THEIR FAMILIES within and between EU States.

Charging EU Citizens (or their family members - regardless of nationality) for visas in order that the EU citizen can move with their work is in contradiction of that EU Law. (Confirmed by solicitor this morning).

Provision is made (Discretion in the immigration rules) to allow for visa applcations where movement within the EU is part of the 'Visa History'.

I've sent of more details to the lawyers and I'll get back to you with their advice as soon as I hear their view.

[the scouser]

I am genuinely interested to hear your lawyer's perspective, but, pro tem, here's mine.

Yes, you are correct that EU/EEA nationals and their immediate dependants have freedom of movement with the area and that family permits are issued free. However, the EU regulations do not possess primacy over UK immigration law. The corollary of this is that British citizens seeking to take their spouses to the UK are bound by the UK immigration legislation whilst, for example, a German wishing to take his wife to the UK is governed by European legislation; the irony being that a Briton's dependant has to pay for the entry clearance whilst an EU national's doesn't. Moreover, what is clear from the EU law is that a dependant's rights are only indirectly derived; i.e. via the EU national spouse (unless the dependant is an EU national too). Consequently, even if your wife were to possess a family permit, she would still need to obtain a visit visa if she ever wished to enter the UK when you were either not already present or were not travelling with her.

UK case law (Surinder Singh) dictates that a British citizen who has been exercising his treaty rights in another EU/EEA country may, for the purposes of his dependant's entry into the UK, present himself as an EU national rather than British. The dependant would then qualify for a family permit issued free. However, whichever way you cut it, your wife would need a visit visa if she ever wished to visit the UK alone.

I don't wish to be the bearer of bad news, but, additionally, at the conclusion of your wife's probationary 2 years, she may not qualify for indefinite leave to remain as she won't have been present in the UK for the stipulated period. Should you return to the UK, your wife would have to either obtain a family permit (as detailed above) or seek another settlement visa.

Scouse.

[Missing My Tom Yam]

I don't wish to be the bearer of bad news, but, additionally, at the conclusion of your wife's probationary 2 years, she may not qualify for indefinite leave to remain as she won't have been present in the UK for the stipulated period. Should you return to the UK, your wife would have to either obtain a family permit (as detailed above) or seek another settlement visa.

It is this particular issue I have raised with a lawyer specialising in immigration. The visitor visa issue, and indeed the EU Family Member Permit issue is clear.

However: As I stated in my letter to the Lawyer

I also understand from IMMIGRATION DIRECTORATES' INSTRUCTIONS SECTION CONTENTS CHAPTER 8 SECTION 1 SPOUSES Oct/04

4.5. Further guidance

There is no specific requirement in the Rules that the entire probationary period must be spent in the United Kingdom. For example, where an applicant has spent a limited period outside of the United Kingdom in connection with his employment, this should not count against him. However, if he has spent the majority of the period overseas, there may be reason to doubt that all the requirements of the Rules have been met. Each case must be judged on its merits, taking into account reasons for travel, length of absences and whether the applicant and sponsor travelled and lived together during the time spent outside the United Kingdom. These factors will need to be considered against the requirements of the Rules.

It is this latter point that is at issue.

If the immigration office do not accept her application using the discretion afforded under clause 4.7 above, then there is a real danger of her application being continually 'Probationary' - I have had confirmation from the lawyer that the discretion is used where the applicant is out of the UK as a result of the applicant's spouse persuing their normal course of work.

But here's another thing - If the immigration office does not use their discretion and grant ILR, my wife would, as you rightly say, have to make another application for a settlement visa. The problem then arrises in answering the questions relating to my permanent residence. Immigration can, and I am assured by collegues, have, refused a settlement visa where there is evidence that the applicant/spouse are likely not to remain in the UK (The specific question asked in the application is [sic] 'Do you intend to live together permanently in the UK?'

Not much use for me when I have spent most of the past 20 years living overseas (returning to the UK at a rather inconvenient frequency of about once every three years, and usually remaining only 3 to six months).

THEREFORE:

The requirement to continually obtain and PAY FOR visas becomes a real restriction and disincentive on my free movement for work - when that movement is within the EU, the restrictions and disincentives contravene EU Law.

[the scouser]

The requirement to continually obtain and PAY FOR visas becomes a real restriction and disincentive on my free movement for work - when that movement is within the EU, the restrictions and disincentives contravene EU Law.

<{POST_SNAPBACK}>

Your wife would then qualify for a family permit, you having exercised your treaty rights in another EU country, but only if you were returning to the UK for good. Unfortunately, the Surinder Singh judgement does not extend as far as granting a family permit for visits made by non-EU dependants of Britsh citizens claiming EU status.

You never know, the next test case might me the "Missing My Tom Yam case".

Scouse.

[The_Moog]

I asked a friend in the Immigration Dept of the Home office about this issue last month.

I asked if my family could go and live, say, in France.

She told me that my Thai wife could not live in an EU country if I wasn't working there, but if I was working, then she could,

[the scouser]

Not strictly true. All you have to do is be exercising your treaty rights which encompasses more than just working. It's true, though, that for your wife to benefit, you, personally, have to be present in the relevant EU/EEA country.

Scouse.