England Return...Visa Conundrum!

[Luton]

Helloand thank you for being there. I hope you may be able to clarify things for meand for my wife. I'm a British citizen, born there in 1948. I am a qualifiedteacher. I taught in UK (Government registered) until 1994 when I started acareer as a teacher in International Schools out of UK. I did not maintain ahome in UK. I have tax-exempt status there. I married in 2002 to a Chinesecitizen. We eventually moved to follow my teaching job to Chiang Mai, Thailand,and we’ve been here 8 years. Now we have decided to locate back to UK where Ihave grown-up daughters from a previous marriage. I am now 62 years old. I amreceiving a Teacher's Pension from UK. We want to move back this July 2011.

Weare finding the procedure to move back very complicated. I had assumed that itwould be a straightforward process for my wife to come with me and reside in UKwith me. Her English language skills are excellent. After reading info on theUK Border Authority website the type of visa we should apply for and how bestto do it is still unclear to us! Can anyone guide us what type of visa we needfor her so she can stay in UK with me as a permanent resident from now on, andnot just as a 6-month tourist (and then out again for two / three months beforeapplying for settlement!) and how we can present ourselves as the genuine,non-abusers of the Country's laws, that we indeed are?! We have two childrenborn to us who are British citizens and who have British passports...ages 11and 2 and a half. I don’t want the family split where after 6 months my wifehas to leave for a while with our little boy (who is obviously dependent on heras Mother, but a British passport holder…so should he be allowed to stay, andconsequently her too?...is there a possible way round this splitting of ourfamily?!).

Thankyou very much for any guidance given. Marvellous forum to have found.

[RAZZELL]

Apply for a spouse visa.

As you have been married 4+ years your wife would get Indefinite Leave to Enter (ILE). Although I wouldn't have thought you have a chance of getting it by July!!!

Visa information here:

http://www.vfs-uk-th.com/

TB Test:

http://www.vfs-uk-th.com/tb.aspx

A1 Level English Test:

http://www.ukba.homeoffice.gov.uk/si...lish-tests.pdf

http://www.vfs-uk-th.com/images/2010...A1_Testing.pdf

The problem I can see is that you may not be considered to be "present and settled in the UK" although you are a returning British Citizen.

RAZZ

Edited June 12, 2011 by RAZZELL

[7by7]

The problem I can see is that you may not be considered to be "present and settled in the UK" although you are a returning British Citizen.

What is 'present and settled'?

Sponsors may be British citizens. Strictly speaking, a British citizen who has been resident abroad but who returns to the United Kingdom to live is not ‘admitted for settlement’. However, if he/she expresses the intention of returning to the United Kingdom to reside, the ECO can regard him/her as present and settled in the UK.

Luton, unless your wife has previously satisfied the Knowledge of life and language in the UK (KOL) requirement, which can only be done in the UK, she will not get ILE (Indefinite Leave to Enter), but she may very well qualify for ILE subject to KOL. This means that as soon as she has satisfied KOL she can apply for Indefinite Leave to Remain without having to satisfy the usual 24 month UK residency requirement. At worst she would get a 27 month spouse visa and after living in the UK for 24 months and satisfying KOL she can apply for ILR.

See this topic for more on this.

In addition to the links provided by Razzell, you may find the following useful:-

Spouses

Maintenance and accommodation

Whichever entry clearance she is granted, she will obviously be allowed out of the UK for holidays etc. There is no maximum period allowed, but when she applies for ILR she must show that she is a UK resident, which may be difficult to do if she spends more time out than in!

If she later wishes to apply for naturalisation as British (both the UK and Thailand allow dual nationality) then there is a residency requirement. She must have been physically present in the UK on the exact day 3 years prior to applying and during the intervening 3 years have spent no more than 270 days out of the UK with no more than 90 days in the final year. See Requirements for naturalisation if you are married to or the civil partner of a British citizen.

[Luton]

Thank you Razzell and 7by7...really helpful replies, and the links I'll follow up on.

To speed things up we are thinking that it may be best to go for a 6-month tourist visa for my wife and then, due to me not having a house established yet in UK, to make it clear on her visa application that we will use the 6 months time in UK to sort all that out because my true intention is to reside in UK from now on with my family. I don't know how the visa officer would respond to that, or if he /she would ever suggest or grant a different and more appropriate visa to her after considering our particular family circumstances and intentions?

Thanks again. Superbly supportive.

Luton.

[RAZZELL]

Thank you Razzell and 7by7...really helpful replies, and the links I'll follow up on.

To speed things up we are thinking that it may be best to go for a 6-month tourist visa for my wife and then, due to me not having a house established yet in UK, to make it clear on her visa application that we will use the 6 months time in UK to sort all that out because my true intention is to reside in UK from now on with my family. I don't know how the visa officer would respond to that, or if he /she would ever suggest or grant a different and more appropriate visa to her after considering our particular family circumstances and intentions?

Thanks again. Superbly supportive.

Luton.

Why I understand where you are coming from, the Entry Clearance Officer (ECO) might think that'll you're going to use a V/V as a de facto settlement visa.

Although it's a bit of aggro, get organised and get the right visa for your wife. The burden of proof for a settlement visa is not that much different for a visitors visa...infact a settlement visa is somewhat easier as there is no need to show a "reason to return".

Unfortunately, it might mean a short period apart whilst you get things organised in the UK with your wife and children joining you later.

Any more questions ask away as 7by7 and others are extremely helpful. Following the advice on this forum I was able to get my then gf a Visit visa followed by a fiance visa.

Hope your application goes smoothly and good luck

RAZZ

Edited June 12, 2011 by RAZZELL

[7by7]

I don't know how the visa officer would respond to that, or if he /she would ever suggest or grant a different and more appropriate visa to her after considering our particular family circumstances and intentions?

The entry clearance officer will assess and decide upon the application received; and grant or refuse depending on whether the applicant meets the criteria for the visa applied for. The onus is on the applicant to apply for the correct visa for their purpose.

A visit first does have merit, as not only will it allow you to sort out accommodation, but will also mean she can take the LitUK test whilst in the UK as a visitor and so qualify for full ILE. However, as Razzell says, you, or rather she, will need to convince the ECO that she will be returning to Thailand once the visit is over.

I'd be inclined to go for settlement right away and sort out your long term accommodation in the UK. You would need to satisfy the accommodation requirement for a visit, and so wherever you would be staying if visiting can also be used as your initial accommodation for settlement.

[Luton]

The suggestions /guidance being given by you both, Razzell and 7by7, are helping us understand a lot….thank you very much.

Please remember that my wife is Chinese and not Thai, so once we leave Thailand there would be no reason to return here. If we choose to go for "visit" visa over "spousal /settlement" visa then it seems she would need to go to China with our 2 and a half year old (British citizen) after 6 months and also show the ECO that this was her intention, right? That gets complicated, and very expensive! I'm back to one of my original questions….would the ECO split the family like that, with the boy being a British citizen but of the age of a child who needs his Mother?

We are well along the process of selling belongings here and, because I was a teacher, my work permit and visas for me, wife and children (previously provided for from employment and schooling status) run out at the end of July. Prospects of staying here to struggle with alternative visas to stay in Thailand for all of us while my wife's visit or settlement visa for UK is considered granted or not, look daunting!

Caught between 2 stools at present. This is why the decision re which visa to go for is crucial to get right, and why we have this tight timeline.

I know we presumed wrongly at the outset that it would be easier to return to good old UK…just out of touch with new developments …one lives and learns!

Edited June 13, 2011 by Luton

[theoldgit]

Please remember that my wife is Chinese and not Thai, so once we leave Thailand there would be no reason to return here. If we choose to go for "visit" visa over "spousal /settlement" visa then it seems she would need to go to China with our 2 and a half year old (British citizen) after 6 months and also show the ECO that this was her intention, right? That gets complicated, and very expensive! I'm back to one of my original questions….would the ECO split the family like that, with the boy being a British citizen but of the age of a child who needs his Mother?

Whilst people talk about the reason to return, and that's what an applicant for a visit visa normally needs to prove, what the applicant actually needs to do is convince the ECO that they will leave the UK as they have stated in their application. I assume that your wife is legally resident in Thailand, in which case she does not have to return to China, she just needs to convince the ECO that she will leave the UK.

Not sure what to advise about your question about your son, maybe someone else can chip in here, save to say that the ECO will not be splitting the family, though he is a British Citizen he is not required to live in the UK, the ECO may take the view that he can continue to live with his mother in Thailand until your wifes visa situation, be it visit or settlement is sorted.

What are your intentions once you get back to the UK, will you be working? You might consider going "home" first and sorting your work and accomodation, though, as you have indicated, I don't think it would be unreasonable for your wife to be involved in this process on a visit visa.

[bobrussell]

My advice would be to bite the bullet and go straight for settlement. If you go for a visit visa your wife would still have to leave the UK to apply for settlement. The costs/stress involved would probably out-weigh the costs/stress of remaining in Thailand for the extra 10 weeks or so it is likely to take.

Unfortunately it is not a good time of year to apply as the processing time is at its worse but some things you can't change. It is quite unlikely that any request for expedited processing will be listened too.

Make sure you take time to get the application right first time to avoid delays. Do not assume anything! Send in all the documentation you can. Most properly prepared settlement applications are granted!

[VisasPlus]

I think most of the points have been covered in the replies that you have already received. I would reiterate that you will not get a settlement visa in the timeframe that you are quoting. As bobrussell says, a visit visa will mean that your wife will have to leave the UK.

You may find this link ecouraging. It is an " article" written by a law firm in the UK that deals with immigration cases. The article talks about a recent European Court of Justice ruling in the case of Zambrano. The determination, in essence, says that the non EU parent(s) of a British citizen child must be given the right of residence and work in the UK in oreder that the child is not deprived of his EU rights. The actual (lengthy) detrmination can be read by Googling Zambrano.

Whilst this determination would seem to fit your circumstances, the Home Office is, of course, reviewing the determination to see if they ( the UK) is bound by it, or whether they should appeal it. I have no idea how an application, quoting the Zambrano determination would be viewed by the British Embassy at this time. Maybe someone with more legal qualifications than me could inform us. I would, however, love to present an application to the Embassy on those grounds, but it is a lot of money for an applicant to lose if it should be refused. You may even want to contact a firm in the UK, such as the one that did the article, to see if they have a view on it for you.

[bobrussell]

I would appreciate any opinions from legally qualified members with regard to Zambrano as my sister-in-law has left a difficult relationship. It turns out that her older daughter (10 yrs) was having an even worse time so I suspect they may qualify for settlement under the abusive relationship safety net in the immigration legislation.

As the younger daughter is a British Citizen and is resident in the UK with her mother (on TLR) this case may be a safety net for the family should it be difficult to provide documented evidence to support the application. We are still waiting for advice from an immigration advisor here in the UK.

I realise this is going a bit off topic but this case could open up a major 'can of worms' for many Thai/British couples. UKBA seem very quiet on the subject!

[Luton]

Many thanks to those of you who chipped in and offered advice to me....Razzell, 7by7, theoldgit, bobrussell and VisasPlus. We decided in the end to go the Family Visit Visa way, and then when we have a house sorted in UK to try for the spouse visa from China where my wife (and maybe me too) will go temporarily after the (under) 6 months exploration of UK. We think this will then allow us proper time to amass all the docs for a successful spouse application. Cheers one and all! Luton.