Complicated UK visa enquiry, please help.

[Dogsockpuppet]

Hi all,

I'm a British citizen and my Thai girlfriend and I have been for a while now looking to try and get her a visa to move to the UK. Despite researching we are still unsure of what approach we should take.

Her background is complicated, which did give us hope that it might help with a future visa.

She moved to the UK when she was 8 years old with her Thai mother, British stepfather (however she was never officially adopted by him) and half brother (whose half Thai half British and who currently lives in the UK with British citizenship).

When she was in her early teens her mother sadly passed away before she had the chance to apply for their citizenship and as her mother and step father had separated, she and her brother came under legal guardianship of her mum's best friend and husband in the UK. She then stayed for another year and a bit in the UK until she was 15 before moving to an international school in Thailand. After which she moved back to the UK at the age of 20 on a student visa for 3 years of university and then got hired by a UK company before having to go back to Thailand at the end of her student visa. Since then she has carried on working for that UK company as they have an office in Bangkok.

As you can see she grew up in the UK, and so identifies as half British, which makes it all the more frustrating.

Any suggestions in regard to what kind of visa to go for, or advice in general would be greatly appreciated.

Many thanks.

[Tony M]

The Tier 2 Intra Company visa might be a possibility ?

https://www.gov.uk/tier-2-intracompany-transfer-worker-visa/overview

[steve187]

how did she stay in the Uk during her teens, until moving to school in Thailand

[Dogsockpuppet]

Thanks Tony, we're looking into it but if I remember correctly you need to be earning around £25,000 a year which is slightly above her wage unfortunately.

Hi Steve, her mum was married to a Brit until her early teens, and it was roughly a year after the divorce that she passed away. We're not sure what visa her mum and her were on during this point, but they had been in the UK for over 5 years and were going to to go a head with claiming right of stay which they of course could not ultimately do.

After this her mums best friend took guardianship of them as they were minors.

[Richard W]

how did she stay in the Uk during her teens, until moving to school in Thailand

Given the dates, she almost certainly had indefinite leave to remain.

Now, if the OP and his girlfriend were to marry, she might just be given indefinite leave to enter as a returning resident. That happened to the Japanese wife of a colleague of mine who had spent much (I don't know how much) of her childhood in the UK. She applied for a spouse visa, and to their surprise got given indefinite leave to enter. It seems it was policy at the same time, and it might still be. However, the student visa might have queered the pitch on that route by definitively terminating indefinite leave.

[Dogsockpuppet]

Hi Richard, thanks for the reply, that's interesting to hear.

In regard to your colleagues wife do you know if her right for indefinite leave to remain was always active or was in a way activated by her spouse visa?

Yes at one point she had right to indefinite leave to remain, however it's my understanding that you have to apply for ILTR? Which they never got round to due to her mothers passing.

My main hope was that due to her being young (15) when she originally left the UK and therefore giving up her right to ILTR. She could maybe say that she wasn't old enough to understand the situation.

[bobrussell]

This is one of the limited number of situations where I believe paying for professional advice may be good value.

My impression is that UKVI/Home Office are being extremely inflexible at the moment. As we are discussing an adult here, it is on the cards that they will require a normal application, under the normal rules.

There may be grounds for discretionary leave but it might take a particularly well thought out application if relying on the applicants past history.

[7by7]

From what you say it appears that she and her mother came to the UK when the qualifying period for ILR was just 12 months and there was no language requirement.

The application was also free and very simple. When my wife and step daughter applied for their ILR in 2002 all we had to supply was evidence we had lived together for the last 12 months in the form of official letters, utility bills and similar addressed to us both covering the period..

So I assume that they were both granted ILR while her mother was still married to her British stepfather. Unless her mother divorced her husband before then and applied for ILR under the domestic violence rules.

I say this because I cannot think of any way her mother, and therefore she, would have been allowed to remain in the UK after the divorce unless they had ILR.

Once they had ILR her mother could have applied for naturalisation as British and she for registration as British (persons under 18 can't be naturalised, but registration is essentially the same; she'd still be British) after three years living in the UK if her mother was still married to her British husband; if not then they could have applied after living in the UK for 5 years.

As I understand it, your girlfriend could still have applied even after her mother's death.

Had they done this then your girlfriend would still be a British citizen and so, of course, would not need any form of visa to enter and live in the UK.

Unfortunately; they didn't.

ILR lapses if the holder spends two years or more outside the UK; which your girlfriend has done which is why she needed a student visa when she came back to study and why she now needs a visa to live in the UK.

If the inter company transfer suggested by Tony M is unsuitable, then the only alternative I can think of is that she applies for settlement as your spouse or partner.

To qualify as your unmarried partner you will need to show that the two of you have been living together in Thailand in a relationship akin to marriage for at least the last two years.

To qualify as your spouse, you obviously need to marry; but only marry if you both want to spend the rest of your lives together, don't marry just to get her a visa.

Whichever route you choose, you will have to meet the financial requirement. Plus all the other requirements, of course.

See Apply to join family living permanently in the UK and the links from there.

Richard, when did your Japanese friend apply? As far as I am aware the category of ILE no longer exists except in certain specific circumstances such as for a child joining a parent who already has ILR.

But, as you say, if it is still possible then this young woman would make an application for settlement and if she meets the requirements for ILE then that is what she will be granted.

Forgot to say that if ILE is possible, she would still need to have met the Knowledge of Life and Language in the UK (KoLL) requirement; i.e. at least B1 in English speaking and listening and pass the LitUK test, which can only be sat in the UK.

Otherwise she would be issued with ILE subject to KoLL and then have to apply for ILR once she had satisfied KoLL.

Edited February 2, 2016 by 7by7

[Richard W]

In regard to your colleagues wife do you know if her right for indefinite leave to remain was always active or was in a way activated by her spouse visa?

My understanding was that she had been out of the country for over two years, but I didn't probe deeply.

Richard, when did your Japanese friend apply? As far as I am aware the category of ILE no longer exists except in certain specific circumstances such as for a child joining a parent who already has ILR.

It was about March 2011 - I think they married before the Fukushima tsunami and she definitely arrived after the tsunami. At the time it was policy to grant former holders of ILR a returning resident's visa if possible if they made a successful application for a spouse visa.

I have read of a more recent occasion where an adult on ILR applied for a BRP replacement visa and was given an ILE vignette instead.

[7by7]

It was about March 2011 - I think they married before the Fukushima tsunami and she definitely arrived after the tsunami. At the time it was policy to grant former holders of ILR a returning resident's visa if possible if they made a successful application for a spouse visa.

ILE for spouses/partners (immigration rules para 281( b )) was abolished in the changes which came into effect on 9th July 2012. So, unless the applicant comes under the transitional arrangements, e.g. submitted their application prior to 9th July 2012, they would not now be granted ILE if applying for entry as a spouse/partner.

As far as I am aware, it has always, or at least has been for some considerable time, in most circumstances only been possible to apply for a returning residents visa if one had spent less than 2 years outside the UK. Immigration rules para 18.

Unless Para 19 applies.

A person who does not benefit from the preceding paragraph by reason only of having been away from the United Kingdom too long may nevertheless be admitted as a returning resident if, for example, he has lived here for most of his life.

See also 'Eligibility' at Apply for a returning residents visa

If you’ve been away for more than 2 years

You won’t get a Returning Resident visa unless you’re also able to show what exceptional personal circumstances have led to you being out of the country for this long.

You must provide enough evidence to show:

• your strong family ties to the UK
• you lived in the UK most of your life
• your current circumstances and why you’ve lived outside the UK

Of course, she must have actually had ILR when she was living in the UK to even be considered for a returning resident visa.

From what he has said, I don't think the OP's girlfriend would come under paragraph 19; but maybe worth a try; the application fee is £324.

What effect her student visa would have on this, I don't know; but I suspect it will be detrimental rather than helpful!

I have read of a more recent occasion where an adult on ILR applied for a BRP replacement visa and was given an ILE vignette instead.

Seems strange; particularly as a BRP replacement visa is only temporary and one must apply for a new BRP within one month of returning to the UK.

[Richard W]

My friend's wife didn't qualify for ILE on the basis of marriage; it's not obvious that its abolition is relevant. On the other hand, a special circumstance is that it wouldn't have been an easy choice to change from being Japanese to being British, Theoretically, the OP's girlfriend could have been stripped of Thai citizenship if she had become British - the dodgy argument that Thai wives can naturalise without fear doesn't apply. As Thais generally (always?) ignore this risk, the ECO may find the fear implausible.

The student visa may well have removed all possibility of reviving the ILR.

[7by7]

I fail to see why the fact that a person's home country does not allow dual nationality would influence a UK visa application.

But even if that is why your friend was granted ILE, it is not relevant here.

As has been confirmed many, many times on TVF by people far more expert in Thai nationality law than either you or I; Thais are allowed dual nationality.

I even recall Samran posting that when his aunt applied for a new ID card having moved back to Thailand from Australia that the evidence of her identity she presented was her Australian passport!

[Richard W]

I fail to see why the fact that a person's home country does not allow dual nationality would influence a UK visa application.

It might have been taken as an 'exceptional circumstance', explaining why she had remained a foreigner.

But even if that is why your friend was granted ILE, it is not relevant here.

As has been confirmed many, many times on TVF by people far more expert in Thai nationality law than either you or I; Thais are allowed dual nationality.

You're confusing practice and law.

Section 22 of a consolidated version of Thai nationality law (such as one sees on the government web site for UK statutes) states:

Section 22. A person of Thai nationality who has been naturalized as an alien, or who has renounced Thai nationality, or whose Thai nationality has been revoked, shall lose

Thai nationality.

There have been moves to deprive people of nationality under this section, but nothing has happened. The key point here is Section 5, under which nationality acquisitions and losses don't happen until published in the Government Gazette. This reason for loss seems at present to be theoretical, as such losses are not being published. There have been reports of lists of such people being prepared.

Section 13 is interpreted as allowing Thais to acquire their spouse's nationality without losing Thai nationality.

I even recall Samran posting that when his aunt applied for a new ID card having moved back to Thailand from Australia that the evidence of her identity she presented was her Australian passport!

So? She had acquired Australian nationality because she had an Australian husband. She was covered under Section 13.

[Dogsockpuppet]

Thank you for all the information and opinions, it gives a bit to look over and evaluate our options.

From what my girlfriend has told me about her stepfather, unfortunately the domestic abuse law may have been the reason that they were able to stay.

This leads me to one more question if anyone can answer, if her mum was indeed able to stay under the domestic abuse clause and was given ILR, would my girlfriend also have to of been given ILR to stay? Or is it the case that children are allowed to stay in the country with their parent(s) without the need to register for ILR?

Apologies if my visa terminology is off!

[bobrussell]

Generally children receive the same leave as the parent.

The problem here is that ILR generally lapses after an absence of two years. In effect the daughter has lost the right to reside in the UK.

If it was possible to show compassionate reasons for leave to be reinstated then discretionary leave might be possible. I cannot see any particular reason why they might be persuaded to do this based on the information given. Obviously I am only an informed amateur!

Sadly I am not sure this is a complicated visa situation. I suspect it is a very simple one, start from scratch! The ECO may find the residence history a plus but only if the rest of the application is sound.

[7by7]

If she was living in the UK when her mother was granted ILR, for whatever reason, then the only reason why she would not also have been granted ILR was if her mother didn't include her in the application!

As she was able to remain in the UK for some time following her mother's death then I surmise that she almost certainly did have ILR.

Which is moot, anyway, as she has been out of the UK for far too long; her ILR will have lapsed years ago.

Forget Richard W's side trips into fantasy land; even if Thais did have to renounce their citizenship if they take up another (and people who know far more about this than he or I have repeatedly confirmed that they do not; despite ambiguities in the relevant Thai nationality laws. Not just spouses; my step daughter (13 when she registered as British, now 25) has certainly has never had any problems with the Thai authorities over her dual nationality. neither have any of the Thai people we know who registered as British whilst a child.) this would not effect anything.

Of course, that is just my opinion; feel free to gamble £324 on a returning residents visa; it's your money.

I believe that were she to apply for settlement as your spouse or partner then she would not be treated any differently to any other applicant; i.e. if successful then she would be granted the usual 33 month visa, after 30 months in the UK apply for FLR and 30 months after that apply for ILR.

Again; my opinion. If I am wrong and for some reason she is granted ILE; great!

[Richard W]

Forget Richard W's side trips into fantasy land; even if Thais did have to renounce their citizenship if they take up another (and people who know far more about this than he or I have repeatedly confirmed that they do not; despite ambiguities in the relevant Thai nationality laws. Not just spouses; my step daughter (13 when she registered as British, now 25) has certainly has never had any problems with the Thai authorities over her dual nationality. neither have any of the Thai people we know who registered as British whilst a child.) this would not effect anything.

Please bear with 7by7's limited powers of comprehension. Nowhere did I say that Thais had to renounce their Thai citizenship if they obtained another country's citizenship by 'naturalisation' (whatever that may mean in a Thai judge's opinion). I merely pointed that their citizenship could then be removed without their consent simply by the loss being announced in the Government Gazette. They retain their Thai nationality until such time, if ever, that the announcement of the loss is made.

I would appreciate a reference to the confirmation 7by7 claims; all I have encountered is a report that this removal isn't happening, even if the person obtaining a foreign citizenship is Thaksin. The people calling for his Thai citizenship to be removed certainly thought there was a law enabling him to be stripped of Thai citizenship for obtaining another country's citizenship.

As to problems, there was a report in the Thai immigration forum in the past few years of a Thai lady with an American husband who had herself acquired American nationality being forced to use her American passport instead of her Thai passport to enter Thailand. Unfortunately, we don't know why this happened - it might just be because the Advanced Passenger Information listed her as an American citizen, and nothing to do with any feeling that she was no longer Thai.

It is also possible that some officials feel that registration is not naturalisation; I have insufficient evidence to know whether the distinction matters.

Of course, that is just my opinion; feel free to gamble £324 on a returning residents visa; it's your money.

Indeed. I would remind the OP of my original post on this topic:

Now, if the OP and his girlfriend were to marry, she might just be given indefinite leave to enter as a returning resident. That happened to the Japanese wife of a colleague of mine who had spent much (I don't know how much) of her childhood in the UK. She applied for a spouse visa, and to their surprise got given indefinite leave to enter. It seems it was policy at the same time, and it might still be. However, the student visa might have queered the pitch on that route by definitively terminating indefinite leave.

[Richard W]

Forget Richard W's side trips into fantasy land; even if Thais did have to renounce their citizenship if they take up another (and people who know far more about this than he or I have repeatedly confirmed that they do not; despite ambiguities in the relevant Thai nationality laws. Not just spouses; my step daughter (13 when she registered as British, now 25) has certainly has never had any problems with the Thai authorities over her dual nationality. neither have any of the Thai people we know who registered as British whilst a child.) this would not effect anything.

The best information I have on the matter is Arkady's five year-old 'fantasy' on the matter. The full post can be accessed by clicking on the link at the top right of the quote. I have just quoted the most significant parts of it.

I have done some more research in the Royal Gazette to investigate revocation of nationality. If you remember, Immigration Order no. 2009.142/882 of 26 Feb 2009, as posted on the Immigration Div 2 website http://imm2.go.th/phpbb3/viewtopic.php?f=5&t=86, instructed immigration officers to forward details of Thai citizens observed to be holding passports of another nationality to Special Branch so that their Thai nationality may be revoked through publication in the Royal Gazette.

<snip>

v) All should watch out for any changes in immigration procedure that might make airlines provide information about travellers nationality direct to immigration, as the UK has been trying to introduce.

That change has come about.

[bobrussell]

Thailand does allow dual nationality as pretty much every Thai acquiring British citizenship can tell you. Most countries allow for removal of nationality in some very limited circumstances. None can do this legally if it makes the person stateless.

It is not unheard of for Thai civil servants (or British ones for that matter) to make up rules as they go. We have met with some pretty unhelpful Thai immigration officers. My wife reckons they are jealous!

Edited February 5, 2016 by bobrussell

[Richard W]

Thailand does allow dual nationality as pretty much every Thai acquiring British citizenship can tell you.

This may now make it into the new constitution. It was in the draft constitution rejected in the Autumn, as analysed below:

Had a quick look through the draft of the constitution which is now available online in Thai and in English translation to see if there was anything specific affecting citizenship.

Most things seem unchanged. The wording about the right to enter the Kingdom freely and not be deported is unchanged, as is the 5-year 'seasoning' required by naturalised Thais before they can vote.

One thing which is new is a sentence in Article 47 that states that it is impossible to revoke Thai nationality from citizens who are Thai by birth against their will. It goes on to say that it can be done to Thais who are not Thai by birth in accordance with the law, provided that this will not render them stateless, which is, of course, consistent with the Convention on Statelessness, to which I believe Thailand is a signatory.

This new addition seems slightly at variance with the Nationality Act, since it doesn't specific that 'Thai by birth' means Thai by birth to a Thai father or mother. Thus it appears to include Thais who were born in the Kingdom to alien parents (after Dec 1973 both alien parents needed to have permanent residence for their children to be Thai). I suspect this is an oversight as the constitution drafters might not have considered the situation of Thais born in the Kingdom to alien parents who will apparently become immune from revocation of Thai nationality, even though they were the main target group for involuntary revocations in the past. The new wording also appears to guarantee that naturalised Thais cannot involuntary lose their Thai nationality in any circumstances, as long as they can prove they have renounced their other nationality or nationalities. Even the UK allows for revocation of nationality of naturalised Brits regarded as a national security threat, if the government can prove that they are eligible for another nationality. A strict interpretation of this constitutional provision would not allow the revocation of Thai nationality from such people, as long as they didn't currently hold another nationality.

The new wording, if adopted in the final version, should knock on the head once and for all arguments from the Interior Ministry and Immigration that half Thai children are supposed to choose one nationality at the age of 20 and that Thais naturalising as aliens are supposed to give up their Thai nationality.

That thread goes on to discuss its impact on the loss of Thai nationality under Section 22.

Of course, it is the historical versions of Thai law that might be relevant to the OP's girlfriend, and probably more important, the ECO's perception of Thai law as it was.

Most countries allow for removal of nationality in some very limited circumstances. None can do this legally if it makes the person stateless.

Britain has had laws to do this at least since the Nationality, Immigration and Asylum Act 2002 Section 4 introduced a new Section 40(3) to the British Nationality Act 1981. This allowed the revocation of British nationality obtained by fraud, false representation or concealment of a material act, regardless of whether it left someone stateless. This has been used against Albanians who got ILR by claiming to be refugees from Kosovo.

[7by7]

Whether one believes Richard W or those with actual knowledge of the subject, like Arkady, I still fail to see what possible influence Thai nationality law would have in this, or any other, UK visa application.

The OP's girlfriend is not British, nor dual British/Thai; she never has been. She is Thai and only Thai; as such she needs a visa to enter the UK for any purpose.

She could have registered as British when she was living in the UK and so had dual Thai/British nationality; she didn't. Not her fault, she was a child at the time. But had she done so then as a British citizen she would not have needed a student visa when she came back to the UK to study and would not need one now.

Whatever her reasons for not registering as British while living in the UK as a child, it is all irrelevant now.

If she wants to return to the UK to live she needs the appropriate visa.

Whichever visa she applies for, when she applies the ECO will consider the application on it's merits. The fact that at one time she could have become British but didn't will not be a factor.

Just as it wasn't when she obtained her student visa.

[Richard W]

Whatever her reasons for not registering as British while living in the UK as a child, it is all irrelevant now.

Possibly not. Last year a violent drug dealer by the name of Eric Johnson was allowed to appeal against deportation from the UK to Jamaica on the grounds that if he hadn't been a bastard he'd've been British. Under the European Convention of Human Right, Article 14 declares that one may not be denied a qualified right on the basis of "sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". In his case, legitimacy was accepted as another status. Last month (apparently - I can't find a date for the judgement), he lost in the Court of Appeal, but I'm not sure the legal arguing is over yet.

I will agree that depending on any argument that it was believed that being registered as British would deprive her of Thai nationality is likely to be a very expensive course of action, and I would not be surprised if it failed. In my colleague's wife's case, she was going to get a visa that could lead to settlement almost regardless of her UK connection; the only question that arose was what sort.

[7by7]

I fail to see how the case you cite has any relevance to the OP's girlfriend!

Unlike him, she does not have a British father. Unlike him, she has not lived in the UK continuously since she was a child. Unlike him she is not currently a UK resident.

Can we please stick to the point; which is the best way for the OP and his girlfriend to live together in the UK.

I think we are both agreed that, based upon the information he has provided, this is for them to marry, unless they qualify as unmarried partners, and she apply for settlement.

You seem to think that she may qualify for ILE; I don't.

We will just have to wait and see what she is granted; assuming she does apply.