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Posted

Having previously successfully helped my (Lao) girlfriend to get a UK Marriage Visitor visa, I am now looking at what visa to apply for in order for her, now my wife, to settle in the UK, with me and our (British) 14-month-old son.

We are currently all living in Thailand. I have an Extension of Stay and my wife and son are here as my dependents, and we plan to all move to the UK permanently together, at the same time.

I think she needs to apply for a 'Family of a Settled Person' visa. Is this right? As I haven't lived in the UK for 11 years, I don't feel like a "settled person"! If she didn't get the visa, I would remain in Thailand, as I have no intention of moving back to the UK and raising my son alone. Is there another Settlement visa that would be more appropriate? The Visa4UK site only gives the option of a "Settlement" visa for a wife.

I have read the Financial Requirements and understand that https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/270484/VAF4A-Appendix2.pdf needs to be completed, although all the questions on this form seem to be for a "Sponsor" who is living and working in the UK, with a spouse living overseas. It is highly unlikely that I will be able to show a salary of £18,600 pa as although my current salary in Thailand is around that level, if I include overtime, I will not have a job to return to in the UK, as I would have to apply for one from Thailand. However, as I understand it, I can still meet the financial requirements if I can show cash savings of £62,500, so it looks like I would have to use this. In this case do I need to show any income or need be employed in the UK at the time we return?

We will have a house to move into in the UK, as I partly own one and we will have sole use of it.

I am also wondering about our right to a family life (under Article 8 of the EU Convention on Human Rights). Although we live together as a family now in Thailand, it is only because I work here and have an Extension of Stay, which allows my wife and child to stay with me. When I cease to work here, we will need to leave Thailand immediately and would only be eligible to return as tourists. We cannot live together in Laos as our marriage is not recognised under Lao law and we have committed a criminal offence by having a child out of wedlock. Neither I nor my son can stay in Laos anyway without visas, and Laos does not offer family settlement visas! So, as I see it, the UK is the only place that we can live together as a family, and where my British son can live with his mother and father. Would this allow my wife any exceptions from the Settlement visa requirements?

Thanks.

Posted

If the plan is for you and your family to move to the UK then what your wife needs is a family of settled person visa, commonly referred to as a settlement visa. I know that you are currently resident outside the UK, and have been for some time, but as you are a British citizen then for this purpose you are classed as a 'settled person.'

Obviously, as your son is also British he does not need a visa to live in the UK and so is excluded from the financial requirement, NHS surcharge, language requirement and TB test.

You will be your wife's sponsor and so, if using income, it is you who has to meet the financial requirement. If using cash savings, whether alone or in combination with income, then the savings can be in your name, your wife's or you both jointly.

If using cash savings alone then only the specified evidence of same has to be produced, there is no need to provide any evidence of income or that you are employed.

You can use your current Thai income, provided it is at least £18,600p.a and the requirements of 5.2. Category A: With current employer for 6 months or more – overseas sponsor returning to the UK or 5.4. Category B: Less than 6 months with current employer or variable income – overseas sponsor returning to the UK are met. In both cases you will need to have a guaranteed job in the UK starting within three months of your return and paying at least £18,600pa.

If you cannot do this and cannot meet the requirement via cash savings, unearned income or some other means then you will have to use 5.1. Category A: With current employer for 6 months or more – person residing in the UK which means you returning to the UK, finding a job paying at least £18,600pa and being in that job for at least 6 months before your wife can apply for settlement (well, she could apply but she'd be refused!).

Your wife can apply for a visit visa to spend that 6 months with you, as many have in your situation. But she would have to return home to submit her settlement application. Visit visas cannot be converted to settlement inside the UK. She will need to convince the ECO that she will do this and not simply remain with you and her son in the UK when her visit visa expires.

In addition to the financial appendix linked to above, see Immigration Rules Appendix FM-SE: family members specified evidence for the evidence required when submitting a settlement application.

You may also find the pinned topic UK settlement visa basics useful; though it does need some updating.

I'm afraid that you can forget about any human rights considerations.

Article 8 of the European Convention on Human Rights says

Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The government argues that the requirements of the immigration rules for family settlement is covered by the parts I have highlighted and so does not breach article 8.

So far the courts have agreed with them. Whether the various cases will go to the Supreme Court and from there to the ECtHR, I can't say. But if they do it will be several years before a final decision is made, and those courts may very well agree with the government..

Whether or not her situation regarding Laos law, i.e. having a child out of wedlock, which effectively blocks her from living in Laos would enable her to be classed as a refugee seeking asylum, I can't say. You'd need to speak to someone who specialises in this area.

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