UK visa "6 in 12" rule. Have the goalposts moved ?

[Tony M]

Many of us are aware of the UKBA guidance regarding “6 months in 12 months“ as the maximum period of visits to the UK. Since the most recent changes to the immigration rules, UKV&I seem to be moving away from the “6 in 12” to utilise the new wording. The relevant section of paragraph 41 now states :

(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits; and

A recent family visit visa refusal, that I became aware of, is of interest. The basic background to the application is that the applicant, a Thai wife, wishes to visit her husband in the UK for 6 months. She has visited him twice in the past two years, staying 6 months on each occasion in each 12 month rolling period. Her current application was for her to go to the UK after spending 6 months back in Thailand. In effect, this was a “6 in 12 “ application, and the applicant would have visited the UK three times in three years, for 6 months in each year. Perfectly acceptable, until now.

The current application was refused, on the following various grounds :

“Under the immigration rules I have to consider, allowing for any compassionate circumstances, if, through a number of visits, you are, or have the intention of, being a de facto resident in the United Kingdom”.

“I am satisfied that in your case you can be considered as seeking to live in the UK on a continuous basis even if your previous visits have been punctuated by short absences in order to avoid overstaying and to obtain further periods of leave in the UK.”

“ I am not satisfied that you intend to leave the UK at the end of the period of the visit and that you do not intend to live for extended periods in the UK through frequent or successive visits.”

This seems to be a fairly large departure from what was previously considered acceptable by the UKV&I. It is, of course, a “family visit”, and the right of appeal has recently been removed for these applications, so we may now be going to see more refusals similar to this one. My own view is that the Embassy would not have refused this application if the applicant had access to the appeal route.

The refusal does seem severe, and also seems to be in contradiction of the current ( new ) guidance on frequent and successive visits. The current guidance says :

Frequency and duration of visits

Visitors cannot live in the UK on a continuous basis even if this is punctuated by short absences from the UK to avoid overstaying.

There is no specific limit on the number of visits an individual can make to the UK, such as a definitive rule which states that a visitor can only remain in the UK for ‘6 months in 12 month period’ rule. But visitors must not be living in the UK for extended periods because of frequent, successive visits. For example:

where an individual spends five or six months in the UK during a visit and returns after a short break in their home country for a further five or six months, or if they are living in the UK for successive short periods and breaking this by leaving for a couple of days, for example, someone living in the UK during the week and breaking this by leaving the UK at the weekends.

This could amount to genuine residence. However this is not a hard and fast rule and the circumstances of each case needs to be considered on an individual basis.

Assessing residence through successive visits

You must consider the following factors when forming an overall assessment as to whether the visitor is residing in the UK because of frequent, successive visits:

Purpose of visit and intended length of stay stated on the visitor’s visa application form or to the Border Force officer.

Number of visits made over the past year (rolling 12 month period), including:

o the length of stay on each occasion

o the time that has elapsed since last visit, and

o if this amounts to the individual spending more time in the UK than in their home

The applicant in this current visa refusal has not contravened any of the “adverse” factors. She has certainly not made “short absences” from the UK to avoid overstaying. Her absences, of 6 months on each occasion, are longer than her stays ( of just under 6 months) in the UK.

The applicant and her husband asked the Embassy in Bangkok to review their decision as they did not believe that the applicant could be considered as a de facto resident of the UK, having previously complied with the UKV&I’s own “6 in 12” guidance, but the Embassy have declined to reverse the decision. They must, therefore, be satisfied that, by spending 6 months of each 12 months in the UK, she is in fact resident in the UK ! This stance could have implications for others who are also using the “6 in 12 rule” to arrange their domestic circumstances.

[paully]

"the applicant would have visited the UK three times in three years, for 6 months in each year. Perfectly acceptable, until now."

Acceptable is not the same as advisable. In my opinion she has taken a risk by assuming that because she is keeping to the letter of the law in relation to individual 6 month stays she is fine for all future visits. She has created a pattern of stays which may indicate to the authorities that she is not a genuine short-stay visitor.

I can't see any change to the 6 in 12 guidelines from what you have said.

[Tony M]

Are you agreeing that she is de facto resident in the UK, and seeking to live there on a continuous basis, as the ECO has determined ?

I think the change is that, whereas previously an applicant wasn't refused for complying with the "6 in 12" guidance, it looks like they are now being refused for complying with it. I think that is a certainly a change in practice by UKV&I ?

Edited November 28, 2013 by Tony M

[paully]

Are you agreeing that she is de facto resident in the UK, and seeking to live there on a continuous basis, as the ECO has determined ?

I think the change is that, whereas previously an applicant wasn't refused for complying with the "6 in 12" guidance, it looks like they are now being refused for complying with it. I think that is a certainly a change in practice by UKV&I ?

It doesn't matter whether I agree with the decision or not. I'm not the ECO, merely trying to suggest how it may appear to him/her and that the appropriate visa here would be a settlement visa not a visit one. I wouldn't agree with you that there was always an automatic acceptance of 6 months in the UK, then 6 months abroad then 6 months in the UK. This would always be a risk to run as a visitor

[7by7]

I assume the applicant only wants to visit, not live in, the UK, otherwise she would have applied for a settlement visa!

There could be many reasons for this, the most common since July 2012 being the difficulty nearly half the UK population have in meeting the government's ridiculously high minimum earnings for a spouse visa.

Now it seems the government are trying to prevent families they have forced apart from even being together temporarily.

Then there are couples who split their time between each other's countries. I know such a British/Thai couple where the Thai partner has a 10 year visit visa. Is she likely to be refused entry on her next visit due to this moving of the goalposts? If she is, how is that fair and equitable?

[bobrussell]

I can see this from the ECO's point of view. In effect this is 'residence' split evenly between Thailand and the UK. In the applicant's defence he or she would struggle get a settlement visa with this pattern of lifestyle!

Does this constitute intending to live together permanently in the UK?

Seems the applicant can't win!

[Jay Sata]

I know someone from the UK who bought a second home in Florida. He worked online.

He was spending April until September in the UK and the rest in the USA. He got away with it for a couple of years until US immigration put a stop to it.

He also managed to rent his house out in London for the winter while enjoying the Florida climate.

There is sense in not being in the UK for the worst six months of the year or staying in Thailand when it gets too hot.

Edited November 28, 2013 by Jay Sata

[paully]

I assume the applicant only wants to visit, not live in, the UK

I'm sure she does! Unfortunately there is no exact visa category for what she wanted. It would seem that she gave the ECO the impression that she was effectively living in the UK.

Edited November 28, 2013 by paully

[Tony M]

It's interesting to see the differing views on this. One problem, of course, is that the applicant no longer has recourse to an independent appellate authority to decide the matter. I still believe, as I have said in other threads, that taking away the right of appeal in family visit visa refusal decisions was wrong. In effect, the UKV&I have said that this applicant can't visit her husband in the UK for the foreseeable future, and that surely cannot be right. If she applies for a one month visit now, is she likely to get it ? Doubtful, I would say.

Similar situations will occur if the proposed Immigration Bill becomes law, and the right of appeal in settlement applications is also removed. The deciding authority in disputed decisions (without going the legal and expensive Judicial Review route), will be the same office that made the initial refusal decision. That doesn't seem right to me.

[ThaiVisaExpress]

The applicant is breaking no rules & the ECO has made a mistake IMO. They should concentrate more on people with 2 year visit visas spending the full two years in the UK on a general visit visa.

The applicant does not wish to settle in the UK & she is breaking no laws having been issued with several visas is irrelevant.

Edited November 29, 2013 by ThaiVisaExpress

[paully]

The ECO would appear to have taken a strict interpretation of this point in the guidance, TVE:

"visitors must not be living in the UK for extended periods because of frequent, successive visits."

The applicant hasn't overstayed, there's no suggestion of that, but with the greatest possible respect the ECO has not acted in error, merely been strict in the interpretation.

[Tony M]

The ECO would appear to have taken a strict interpretation of this point in the guidance, TVE:

"visitors must not be living in the UK for extended periods because of frequent, successive visits."

The applicant hasn't overstayed, there's no suggestion of that, but with the greatest possible respect the ECO has not acted in error, merely been strict in the interpretation.

That is kind of out of context, Paully. The guidance does goes on to give an example of "successive visits" :

where an individual spends five or six months in the UK during a visit and returns after a short break in their home country for a further five or six months, or if they are living in the UK for successive short periods and breaking this by leaving for a couple of days, for example, someone living in the UK during the week and breaking this by leaving the UK at the weekends.

It looks like the ECO has been slightly more than "strict" in his interpretation.

[paully]

The ECO would appear to have taken a strict interpretation of this point in the guidance, TVE:

"visitors must not be living in the UK for extended periods because of frequent, successive visits."

The applicant hasn't overstayed, there's no suggestion of that, but with the greatest possible respect the ECO has not acted in error, merely been strict in the interpretation.

That is kind of out of context, Paully. The guidance does goes on to give an example of "successive visits" :

where an individual spends five or six months in the UK during a visit and returns after a short break in their home country for a further five or six months, or if they are living in the UK for successive short periods and breaking this by leaving for a couple of days, for example, someone living in the UK during the week and breaking this by leaving the UK at the weekends.

It looks like the ECO has been slightly more than "strict" in his interpretation.

But that's exactly the point, Tony: you quoted the example given for illustration purposes, I quoted the guidance the ECO is expected to follow. In context I'm afraid.

Edited November 29, 2013 by paully

[7by7]

Whether the ECO has been too strict in his/her interpretation is, I think, moot.

The problem is that UKV&I, or their political masters, having made it difficult, if not impossible, for many couples to live together in the UK are now attempting to stop the foreign spouse from even regularly visiting their British spouse!

No doubt some will say that the British spouse can always go and live in the foreign spouse's country; but

1. That's not always possible due to work availability and other factors.
2. It's not the point, anyway. Even if the new draconian family migration requirements mean that a couple can't live together, at least they should be allowed to visit.

How long between visits is acceptable? 7 months, 8, 9, longer?

If ECOs, and presumably IOs at ports of entry, are going to be strict in applying this 'rule' then surely applicants and sponsors have the right to be told what is acceptable and what isn't.

Edited November 29, 2013 by 7by7

[paully]

How long between visits is acceptable? 7 months, 8, 9, longer?

If ECOs, and presumably IOs at ports of entry, are going to be strict in applying this 'rule' then surely applicants and sponsors have the right to be told what is acceptable and what isn't.

I'd certainly agree with that. Should be a lot clearer.

[Tony M]

The ECO would appear to have taken a strict interpretation of this point in the guidance, TVE:

"visitors must not be living in the UK for extended periods because of frequent, successive visits."

The applicant hasn't overstayed, there's no suggestion of that, but with the greatest possible respect the ECO has not acted in error, merely been strict in the interpretation.

That is kind of out of context, Paully. The guidance does goes on to give an example of "successive visits" :

where an individual spends five or six months in the UK during a visit and returns after a short break in their home country for a further five or six months, or if they are living in the UK for successive short periods and breaking this by leaving for a couple of days, for example, someone living in the UK during the week and breaking this by leaving the UK at the weekends.

It looks like the ECO has been slightly more than "strict" in his interpretation.

But that's exactly the point, Tony: you quoted the example given for illustration purposes, I quoted the guidance the ECO is expected to follow. In context I'm afraid.

I'm not sure what you mean by an example "for illustration purposes" ? It is the guidance to ECOs on how to assess whether an applicant is a frequent or successive visitor, and this applicant doesn't seem to fall into the category of a frequent and successive visitor as given in the guidance I quoted. In fact, she seems to be far from it.

The guidance is available to applicants, sponsors and others. From the guidance quoted, I don't think the applicant would have expected to have her application refused. As 7x7 says, if the UKV&I are going to interpret their guidance this strictly, then applicants and sponsors should have an expectation to be informed before applying.

[wooloomooloo]

As has been stated, without the right of appeal it's a dictatorial decision on a like or it lump it basis.

[paully]

But that's exactly the point, Tony: you quoted the example given for illustration purposes, I quoted the guidance the ECO is expected to follow. In context I'm afraid.

I'm not sure what you mean by an example "for illustration purposes" ? It is the guidance to ECOs on how to assess whether an applicant is a frequent or successive visitor, and this applicant doesn't seem to fall into the category of a frequent and successive visitor as given in the guidance I quoted. In fact, she seems to be far from it.

The guidance is available to applicants, sponsors and others. From the guidance quoted, I don't think the applicant would have expected to have her application refused. As 7x7 says, if the UKV&I are going to interpret their guidance this strictly, then applicants and sponsors should have an expectation to be informed before applying.

Examples are just examples, Tony. Examples are never the law. Yes, I've already said that the guidance should be clearer - I'm not the government, stop trying to blame me for what happened to this lady!

[wooloomooloo]

In the applicant's defence he or she would struggle get a settlement visa with this pattern of lifestyle!

Not at all. It would be looked upon most favourably so long as settlement criteria were met.

Edited November 29, 2013 by wooloomooloo

[Tony M]

As has been stated, without the right of appeal it's a dictatorial decision on a like or it lump it basis.

Agreed ( I would agree, as I said it, I think). Going slightly off the subject - if and when the right of appeal in all settlement applications is removed next year, then I think the people who will suffer most will be child applicants, applying to join a parent in the UK. At the moment there are checks and balances in the appeal courts, but that will end. The final arbiter will be the same office that makes the initial decision to refuse. Applicants who have been refused a visa will have to pay a fee for the same office to review the decision. As many know, child settlement visas are often refused, and the decisions are often overturned at the appeal hearings. I don't think that will happen when the refusal decisions are reviewed locally. UKV&I will say that their decisions can also be reviewed if the applicant or sponsor seeks a Judicial Review. They also know that most people cannot afford to go down that route as it normally involves instructing lawyers in the UK. That has happened here, of course, in this example of a family visit visa application, now that the right of appeal has been removed.

[Tony M]

But that's exactly the point, Tony: you quoted the example given for illustration purposes, I quoted the guidance the ECO is expected to follow. In context I'm afraid.

I'm not sure what you mean by an example "for illustration purposes" ? It is the guidance to ECOs on how to assess whether an applicant is a frequent or successive visitor, and this applicant doesn't seem to fall into the category of a frequent and successive visitor as given in the guidance I quoted. In fact, she seems to be far from it.

The guidance is available to applicants, sponsors and others. From the guidance quoted, I don't think the applicant would have expected to have her application refused. As 7x7 says, if the UKV&I are going to interpret their guidance this strictly, then applicants and sponsors should have an expectation to be informed before applying.

Examples are just examples, Tony. Examples are never the law. Yes, I've already said that the guidance should be clearer - I'm not the government, stop trying to blame me for what happened to this lady!

I apologise if I seem to be blaming you. I'm actually enjoying the discussion.

[paully]

I apologise if I seem to be blaming you. I'm actually enjoying the discussion.

Good!

[bobrussell]

In the applicant's defence he or she would struggle get a settlement visa with this pattern of lifestyle!

Not at all. It would be looked upon most favourably so long as settlement criteria were met.

My point is that someone settling in the UK would not be expected to spend 18 months of the probationary 3 year period outside the UK and I suspect would struggle to impress the ECO that this was permanently living in the UK.

Why would it be looked upon most favourably? The point of a settlement visa is to settle! This applicant has returned to her country of residence between visits.

A visit visa also now seems to be a problem. This is someone who is visiting, not settling.

Perhaps a letter to the MP is in order.

[7by7]

Indeed, Bob, 6 months per year out of the UK could make it difficult for an FLR or ILR applicant to satisfy UKV&I that they were a UK resident!

Even an ILR holder with this pattern of lifestyle could have their ILR cancelled on the basis that they weren't resident in the UK!

Edited November 29, 2013 by 7by7

[paully]

Yes, there is no "live in the UK and abroad" visa. Even with Indefinite Leave you have to spend not too long out of the country. But if you're an EU citizen then you can do what you like.

Edited November 29, 2013 by paully

[Seekingasylum]

Yes, I agree this was a poor refusal and perhaps typical of what one might expect from a lay person applying what they they consider to be their interpretation of a rule which they scarcely understand. Visa officers currently in harness are, in the main, unqualified to apply legal principles to their decisions not least because they are usually quite ignorant of the rulings which have determined the operation of the rules. Essentially, they are no more than shiney-arsed clerks operating in a vacuum of incomprehension and, given the denial of any appeal system, are increasingly prone to exercising their impoverished intellect in a manner founded upon no more than mere whimsy.

The decison under debate is quite unsustainable. The victims of this stupidity should waste no time in submitting a pre-action letter to the UKVI's Judicial Review Unit and pursue a JR challenge if these idiots dig their heels in. I would bet my pension on the action not not even seeing the Divisional Court door such would be the speed at which the UKVI would concede.

As far back as 1973 it was held that mere suspicion alone is insufficient to justify a refusal. A decision must be founded upon some evidence. Visit visas are valid for six months. There is nothing in the rules that prohibits an applicant from submitting an application annually. To construe that an annual visit of six months, alone, constitutes a de facto settlement simply on the basis of that travel history without citing any evidence, or indeed in the absence of a statutory definition of what settlement actually entails, is self evidently unreasonable.

Quite simply, the visa section are just having a punt and should be put in their place without further ado.

[Jay Sata]

As I've said here before a normal person could not afford to spend six months holiday in another country unless they are wealthy or retired.

For most of the UK working population a month somewhere abroad would be classified as a very nice holiday.

The tourist visa rules are bent to way past what can be termed ' a recreational' visit in Thailand but a blind eye is adopted by Thai immigration.

Six months in the UK out of 12 has to be regarded as a secondary form of permanent residence where perhaps the applicant feels they could qualify under the normal channels.

[7by7]

Mr Sata,

I'm not sure what point you are trying to make, but would like to point something out to you.

In previous posts you have claimed that your wife is a dual Thai/American and that you and she spend roughly 6 months in the UK and 6 months elsewhere.

Even though as an American she does not need to obtain a visa in advance to visit the UK, the immigration rules do apply to her. So, if this strict interpretation of '6 out of 12' extends to IOs at ports of entry she could find that on her next attempt to enter the UK as a visitor she is denied entry!

Something for you to consider.

[Seekingasylum]

Irrespective of one's social perceptions, the operation of the immigration rules is determined by the law, and nothing else.

I,for one, know of many affluent retired chaps who maintain a residence in both the UK and Thailand and habitually take their girlfriends/significant others to the UK for six months each year. It is indicative of the incoherence of the UKVI that they should single such folk out for refusal notwithstanding their sponsors are financially independent and there is not the slightest shred of evidence to suggest their partners either represent a threat to immigration law or to the UK community at large.

[bobrussell]

It is not uncommon for partners to live in Thailand and be supported by their UK spouse. It does not need them to be wealthy at all. We are talking about family visit visas not holiday visas.

The visa rules are clear and there is (as yet) no such thing as a secondary form of permanent residence. The ECO seems to have decided that there is such a thing. The applicant has not breached any laws or rules nor the accepted convention of no more than 6 in 12 months.

Laws are written by governments and interpreted by the legal system. An ECO is neither entitled nor qualified to do either.

I repeat that the Home Office is very unlikely to consider someone who spends less than half their time in the UK to qualify as permanent residents. Mr Sata may not agree with the law as it stands so I would suggests he discusses it with his MP to try to persuade the government to change the law more to his liking.

This applicant cannot get a visit visa nor is likely to qualify for a settlement one it would seem. Perhaps someone more knowledgeable and wiser can correct us so this applicant can apply for the correct visa type if it exists.

My wife had many visas over the years and spent variable periods of time in the UK without problems. We were not even aware of the 6 in 12 convention at the time! History for us as she has a British passport now but still a life choice for many.

Edited November 29, 2013 by bobrussell