Returning Resident Query (Form Vaf4B)

[kamenrider]

Does anyone have any knowledge of the criteria used by the Border Agency where a spouse with ilr in the uk wishes to return to the uk after an absence of more than two years? The BA website states the following:

If you have been away for more than 2 years, you may still qualify to return to live in the UK if, for example, you have strong family ties here or have lived here most of your life.

I expect the fee will be the same as for the settlement visa, but there are advantages in opting for the returning resident route, if it is available, (and this is not an attempt to circumvent the new income rules).The BA website does not appear to require the possession of an English proficiency certificate (nor a TB certificate)-and presumably my wife's ilr status would continue. Is that interpretation correct? It may also be that the years spent in the UK previously will count towards the new 5 year residence requirement for citizenship, and also the application processing time in Bangkok may be shorter.

Our background: we have been married ten years, the first five years we lived in the UK, then having sold our house, we moved to Thailand.Since then my wife has not visited the UK.Now after five years here I wish to move back to the UK indefinitely for a number of reasons. If I and our son, who like me is a British citizen born in the UK, were to move back to the UK and find accommodation, leaving my wife here to apply for settlement, she would then have strong family ties in the UK.

Any relevant experiences and knowledge gratefully received as I am unsure how best to proceed, and wonder if five years away is simply too long, regardless of how compelling the facts of the matter may be.

[VisasPlus]

In all honesty, I don't think she will get a returning resident visa. From what you say, your wife doesn't have any strong ties with the UK, nor has she spent most of her life there. In addition, she has now been out of UK for a considerable period of time.

I don't think that the UKBA will want to issue her with an RR visa, and it will certainly be easy to refuse the application on the information you have given. You would ( or your wife would) have a right of appeal against any refusal, but I don't think you would win unless you can demonstrate that the required criteria are fulfilled. I understand your reasoning on returning to the UK with your son, and your wife applying to join you on the grounds of strong ties to the UK, but i suspect that the ECO might argue that those strong ties only exist because you went back to the UK, and that the application as an RR is an attempt to circumvent the settlement requirements.

[7by7]

Too late now, but after she had lived in the UK for 3 years as the spouse of a British citizen she could have applied for British citizenship. Had she done so, she would now be a British citizen and so, like you, would not need a visa to return to the UK no matter how long she had lived outside.

Worth thinking about for the future.

If she were to obtain a returning resident visa, the time spent in the UK previously would not count toward the residency requirement for citizenship.

Under the existing rules she must have been physically present in the UK on the exact day three years prior to applying and during the intervening three years have spent no more than 270 days out of the UK with no more than 90 days in the final year.

If the qualifying time for spouses is increased to the standard 5 years then she will need to have been in the UK on the exact day 5 years prior to applying and during the intervening 5 years have spent no more than 450 days out of the UK with no more than 90 days in the final year.

[kamenrider]

Many thanks for these replies. The intention was to go for the route with the least hurdles, not to avoid the new rules (honest) but yes I can see how the ECO would be unimpressed even if we meet the new inome requirement, and that the RR route would be more demanding than envisaged so will start from scratch with totally new application. Yes, must be more focused on applying for citizenship this time around. Thanks again.