Family move back to the UK- visa eligibility for my Thai wife

Jon Snow · August 30, 2017

I have been resident in Thailand for 17 years, been married to a Thai national for 14 years (still happily married) and we have a 14 year old son who has British & Thai nationality. We are looking to move back to the UK to get our son into the education system there for his remaining school and university years. My son attended a UK school last year and stayed with his grandparents as we were unable to consider moving ourselves at that time, he has returned to Thailand for the summer holidays and is currently still here with us. The plan would be to move back initially to stay with my parents whilst we find our feet, obtain work etc...

I have been going through the Spouse settlement visa and our problem it seems (like many others) is going to be the financial requirements- I work freelance on the internet and have easily made the 18,600 requirement, unfortunately for much of my income I have no paper trail, so I cannot prove to the UK government my actual income and cannot show 18,600. My wife has around 15,000 pounds in the bank but this came from a recent land sale and has only been in her account for a month or so- according to what I have read this does not count towards the total as she needs to show that it has been in her account for a minimum of 6 months. My father has also offered to sponsor her in full but apparently that option is no longer permitted.

I looked at the other option of her applying to join family (her child) but the rules for that state that if you are able to apply as a partner (which she obviously is) then you must do that instead, so it seems that option is off the table.

So now I am wondering what to do, I need to get my son back soon or he will miss a vital part of what is his O level years. Perhaps I should bring my wife to the UK on a tourist visa for 6 months initially ( she has had a tourist visa and visited the UK before with me), get setup with work there and apply then from the UK (if that is allowed?), or am I missing something? Some people have mentioned to me that because my son is British and will be resident in the UK that this will make our case different, but I see nothing about that nor have I found anything about that on this forum.

Any help you guys could give me would be greatly appreciated, feeling a bit overwhelmed with all this bureaucracy!

RichardColeman · August 30, 2017

So, let me get this right - you own no property and want to move in with mum and dad - something which could lead to you being declared homeless and on the streets if you argue with them (just saying, like the embassy would ), you have no provable income which could mean that you have no tax records on your income to show them. Yes, father cannot sponsor . Sorry, it's not bureaucracy it's plain obvious you not suited to currently apply and would be wasting your money under your circumstances. Sorry, but those are the facts. I cannot see you getting a visa for her to stay with you with no provable income or own place to live. I would not let you come to the UK if I was giving out the visas even though it would pull at my heart strings.

BUT. You do not have to show 18,600 if you have some savings, you can combine the two. For instance, if you had about 65,000 quid in the bank you can apply the saving route, without having an income. So, that 15,000 she has would drop the needed income from you to about 14,000 a year. I am sure you can wait 6 months to show it has not just been put in there, put it in your account.

I'm pretty much in the same boat as you, though my baby is only Thai national meaning I have to show 22,000 a year - and I have a lot less, living on renting out my house in the south uk.

My own plan would be - since I own a house in the south - sell my small 2 house in the south and buy a 4 bed house in the north near my grand-daughter and pocket 100,000 for showing the visa people. I don;t need ANY income as long as I have the required money in the bank both now and in the 2.5 years time.

Sorry if I upset you, but your situation, though sad is untenable with the visa people, unless I am missing smoething

GLewis · August 30, 2017

off the subject but your son will not be taking O levels but the GCSE. O levels went away in 1988. Good luck

Jon Snow · August 30, 2017

No you did not upset me Richard, I get your point and it is totally valid. We own property in Thailand in the form of land but nothing in the UK. I can earn a decent salary as soon as I get to the UK but I cannot prove that before I go. Finance is not the issue for us once we are there, the issue is demonstrating that to them beforehand- and I think that may be impossible.

I reckon I will return initially with my son and my wife on a tourist visa, get things sorted out and take it from there.

All the Best with your plans, hope you manage to work something out.

Jon Snow · August 30, 2017

Just now, GLewis said:

off the subject but your son will not be taking O levels but the GCSE. O levels went away in 1988. Good luck

Showing my age.

English Engineer · August 30, 2017

The only route is for you to move to the UK in advance of your wife and become estabished with the required income. If you are employed only 6 months employment is required. Self employed normally requires you to submit at least 1 year tax returns. In addition you would also need to demonstrate you have family accomadation. The income requirement is strictly applied. No way round it.

English Engineer · August 30, 2017

Adding to my comment the tourist visa route is best avoided. Your circumstances would lead them to believe she will overstay. She would need anyway to return to Thailand to apply for a settlement visa. In the long term you avoid a rejection it only make any future application more difficult.

7by7 · August 30, 2017

deleted

Edited August 30, 2017 by 7by7

7by7 · August 30, 2017

2 hours ago, RichardColeman said:

So, let me get this right - you own no property and want to move in with mum and dad - something which could lead to you being declared homeless and on the streets if you argue with them (just saying, like the embassy would ),

Third party offers of accommodation from family or friends is acceptable; many people have done this; including my wife, step daughter and I who lived with my parents at first.

2 hours ago, RichardColeman said:

BUT. You do not have to show 18,600 if you have some savings, you can combine the two. For instance, if you had about 65,000 quid in the bank you can apply the saving route, without having an income. So, that 15,000 she has would drop the needed income from you to about 14,000 a year.

Yes, savings can be used to reduce the amount of income required; but they cannot be combined with income from self employment and the OP appears to be self employed.

Also, even if he could use savings to reduce the required income, the first £16,000 of those savings is discounted and cannot be used; so £15,000 is not enough.

Edited August 30, 2017 by 7by7
Addendum

7by7 · August 30, 2017

27 minutes ago, English Engineer said:

Adding to my comment the tourist visa route is best avoided. Your circumstances would lead them to believe she will overstay. She would need anyway to return to Thailand to apply for a settlement visa.

Not so; many couples have done this.

You are correct that the spouse has to return home in order to apply for settlement; but provided they can convince the ECO they will do so, then they will get their 6 months visit visa. Not necessarily easy; but certainly possible.

29 minutes ago, English Engineer said:

In the long term you avoid a rejection it only make any future application more difficult.

Each application is treated on it's own merits. Even a visit visa refusal will not adversely effect a future visit visa application; provided the reasons for the first refusal are adequately dealt with in the subsequent application.

A visit refusal should, however, have no adverse effect at all upon a settlement application; especially if the visit visa was refused on reason to return grounds. The requirements of the immigration rules are completely different; for a start settlement applicants do not need to show a reason to return, for the obvious reason.

7by7 · August 30, 2017

7 hours ago, Jon Snow said:

I have been going through the Spouse settlement visa and our problem it seems (like many others) is going to be the financial requirements- I work freelance on the internet and have easily made the 18,600 requirement, unfortunately for much of my income I have no paper trail, so I cannot prove to the UK government my actual income and cannot show 18,600.

Unfortunately, if you cannot produce the required evidence relevant to the way you intend meeting the financial requirement, see Immigration Rules Appendix FM-SE: family members specified evidence, then there is no point in her applying until you can.

It is worth noting that the financial requirement appendix only mentions self employment in the UK (" 9. Self-employment or Director or employee of a specified limited company in the UK") no mention is made of a self employed sponsor returning to the UK. Indeed, it seems from my reading that it is only employees who can use their previous income from working abroad (" 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").

So I am not sure that your self employed income whilst in Thailand can be used anyway. Hopefully someone more knowledgeable than I (such as Tony M) will be able to advise on this point.

One option is for you move back to the UK with your son while your wife remains in Thailand while you work long enough, 6 months if employed, at least 12 if self employed, to be able to not only meet the financial requirement but also have the required evidence to prove it. Meanwhile she uses visit visas to be with you for as long as possible during this period, bearing in mind that she can only spend a maximum of 6 months in the UK at a time and normally a maximum of 6 months out of any 12 in the UK as a visitor.

Edited August 30, 2017 by 7by7

English Engineer · August 30, 2017

I do not agree with the comments regarding the use of visit visas. Your ultimate aim is for your wife is to have a settlement visa. It is far better to play a straight bat and demonstrate clearly your objectives.

It is true that previous rejection should not have any impact on the settlement application. The ECO does have flexibility and its better not to give them any impression that you have tried to get round the rules.

Estlablish yourself in the UK, meet the settlement visa requirements. It should then be straight forward.

Tony M · August 30, 2017

There are a couple of things to mention here :

1. There is mention in Appendix FM-SE financial requirement guidance ( Appendix FM 1.7 attached below) concerning self-employed sponsors returning to the UK, with the applicant, to work, either in continued self-employment, or in a new job. See here :

9.5. Self-employment as a sole trader, as a partner or in a franchise – requirements

9.5.1. A sole trader is a business that is owned and controlled by one person, although they may employ staff. A partnership is where the business is owned by two or more people (although equity partners are treated as in salaried employment for the purposes of the financial requirement: see section 5 of this guidance). And a franchise allows a person the right to use an existing business idea.

9.5.2. Where the applicant’s partner is in self-employment overseas and is returning with the applicant to the UK to work, they may rely on continuing their self-employment in the UK or on a confirmed offer of employment in the UK in order to meet the financial requirement. Therefore, if their self-employment income overseas is sufficient to meet the financial requirement, they can also provide evidence either:  That their self-employment is ongoing and will be continuing in the UK; or  Of a confirmed offer of salaried or non-salaried employment in the UK, starting within 3 months of their return. (The specified evidence and calculation for this is explained in section 5 of this guidance).

The difficulty is probably going to be in evidencing the income from self-employment, and providing the required documentation ( 18,600 GBP earned, tax paid, etc ?).

2. The "new" rules, introduced this month, do make it possible for applicants and sponsors who cannot meet the financial requirement to use the new additional sources of income - third party support and/or evidence of a job offer for the applicant. However, they must show "exceptional circumstances" in order to do so. This is, most likely, totally untested as yet, and I would certainly recommend obtaining advice from a UK Level 3 OISC registered advisor, or a UK based immigration lawyer. Proving exceptional circumstances will be difficult, so difficult that the Home Office actually says, in the guidance :

The threshold of such exceptional circumstances (which must be met before other credible and reliable sources of income, financial support or funds can be taken into account) is a high one. For guidance on when such exceptional circumstances may arise, see section 13 of the IDI Family Migration: Appendix FM Section 1.0a Family Life (as a Partner or Parent) 5-Year Routes, which can be found on GOV.UK at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/370606/Appendix_FM_Section_10a_5-year_Partner_and_Parent_Routes.pdf

You should read Section 10 of the attached document.

Appendix_FM_1_7_Financial_Requirement_Final.pdf

laislica · August 30, 2017

Dear OP, here are a few "Off the wall" thoughts which I hope will be useful.

Back in the day, it was routine for Posh folk to send their children to boarding schools and only see them during holidays.

Perhaps a version of this is the initial route for you and your family?

Your son could be sent to your parents as he is British?
They could be his temporary guardians?

They could house him and get him into an appropriate local school?

For Uni, don't many students "live in" anyway?

(sure, that's a few years away but still something to plan for?)

In the meantime, perhaps you can see what you and your wife need to do in order for you all to eventually move back (settle?) to the UK?

Remember that even if you moved back, there are also qualifying periods before you can once again get free NHS treatment etc....

It is very sad that thoughts like this need to be explored, but it is what it is!

At least your son's education would be assured and perhaps the urgency and stress levels would be less?

There would be his return flights to Thailand for his holiday visits and could he fly unaccompanied?

I wonder if asking for the assistance of the MP for the area where you will live would help?

7. EUN2.7 Who are an EEA national’s extended family members?

Extended family members are more distant family members of the EEA national or of his/her spouse/civil partner who can demonstrate that they are dependent. Partners, where there is no civil partnership, who can show that they are in a ‘durable relationship’ are also considered to be extended family members.

Extended family member of an EEA national are defined in regulation 8 of the EEA Regulations.

An applicant may be considered for an EEA family permit as an extended family member if they are:

residing in a country other than the UK and are dependent on the EEA national or are a member of the EEA national’s household; and
accompanying the EEA national to the UK or wishing to join them there.

If the applicant does not meet both of these criteria, they can also be considered for an EEA family permit as an extended family member if they are:

a relative of the EEA national or his spouse / civil partner and on serious health grounds, strictly require the personal care of the EEA national or their spouse/ civil partner; or
a relative of the EEA national and would meet the requirements, (other than those relating to entry clearance) in the Immigration Rules for indefinite leave to enter the UK as a dependent relative of the EEA national were the EEA national present and settled in the UK; or
a partner of the EEA national (other than a civil partner) and can prove to the ECO that they are in a durable relationship with the EEA national.

Where the applicant can show that he / she is the extended family member of an EEA national, the ECO may issue an EEA family permit if in all circumstances, it appears to the ECO appropriate to issue the EEA family permit. Therefore, an EEA family permit may be refused:

where refusing the family member would not prevent the EEA national from exercising his / her Treaty rights or would not create an effective obstacle to the exercise of Treaty rights;
if the applicant would have been refused entry to the UK on general grounds for refusal had they been applying for entry under the Immigration Rules;
maintenance and accommodation requirements aren’t met, for example, the non-EEA national’s admittance would result in recourse to public funds.

Where the extended family member did not reside in the same country as the EEA national before the EEA national came to the UK, and where the EEA national provided financial support only to the extended family member, it is unlikely that the extended family member would be able to demonstrate that refusing to issue them with an EEA family permit would prevent the EEA national from exercising their Treaty rights in the UK. This is because the EEA national could continue to provide financial support to the applicant from the UK.

Family members of students (other than his or her spouse and dependent children) are entitled to join the EEA national for the initial 3 month period she or he is in the UK. Should these other family members wish to remain in the UK with the EEA national student for a period longer than 3 months they would need to apply in country for a Residence Card.

English Engineer · August 31, 2017

Convincing the ECO that she will not over stay is the problem. The fact that her family is in UK would suggest to the ECO that on the balance of probabilty she would remain in the UK.

The only counter arguement is that she has a compelling reason to return to Thailand. I suspect very difficult.

I do have sympathy for you not any easy situation to live through.

Tony M · August 31, 2017

10 hours ago, 7by7 said:

Thanks, Tony: I should have read it more carefully!

It's not exactly easy reading. It is so disjointed. They had the chance to tidy the whole guidance up, when they published the latest guidance this month, but they failed to take the opportunity.

Jon Snow · August 31, 2017

A big thanks to all of you for your advice and input, I really appreciate you all taking the time to help me out.

I have obviously now written off the idea of trying to get any sort of settlement visa. I am going to have to return with my son and get things set up, which is eminently doable. I have one contract with a Thai based company which earns me about 9k a year and this will continue when I return. If my 18600 needs to be earned from UK companies then I am sure they can arrange to have me paid from one of their other companies over there. I could then get a part time job to make up the difference leaving me time to also develop my freelance work- this seems like the best option at present as I could apply for a residence visa after 6 months, if I relied on self employment it would be at least 1 year.

With regards my wife visiting on a tourist visa, there are some mixed thoughts about that here. I am thinking we could all travel to the UK at the same time on the premise of a family visit, with her on a visit visa (this would be her second visit visa- we went for a month 4 years ago). Then my son and I decide to stay on and she returns home after her visa expires. I don't know if this would get us a yellow card but it seems to me similar situations must have occurred totally innocently in the past. I know the visit visa is valid for 6 months but that you must also state the days of travel and return. Presuming that then if she was to stay 6 months she would need to declare that as her length of stay on her application, and from what I am hearing I gather it would be harder to get a visit visa for 6 months than it would for say 1 month.

Obviously I am trying to keep my family together as much as possible but I also do not want to rock the boat or jeopardise any future visa applications. I do have a connection with the local MP back home so I could play that card if it would help me. I'm guessing a letter from him assuring them that my wife would return to Thailand after her visa had expired would go a long way?

Thanks again everyone!

theoldgit · August 31, 2017

There's mixed views on whether staying for six months on a visit visa would work, because it's not cut and dry, there's no right and wrong answer.

Whilst it makes absolute sense to go down that route, a visit visa is designed for somebody who wants to visit the UK for a holiday or on business, whilst the visa has a standard validity of six months most applicants normally only stay for a couple of weeks or so. Staying longer could prejudice a future application for a visit visa, though not a Settlement Visa.

Of course, as you rightly point out, your wife would have to give indicative travel dates when she applies and if the visa was issued she might well be asked about them when she actually arrives at the UK Border. The sad truth is that's there isn't an actual visa that fits your requirements.

As to your possibly "playing the MP card" if an MP writes to the Home Secretary or Immigration Minister, the letter will be forwarded to the appropriate departments Correspondence Unit, by the recipients own unit, to draft a response, the letter won't be shown to the Minister at that stage. The correspondence unit will respond to their opposite number who would in turn prepare a response to your MP for signature, or more likely pp it. There would only be some change of decision if it was believed that the decision maker didn't properly interpret Immigration Rules, in normal circumstances MP's have no sway.

RichardColeman · August 31, 2017

Sometimes i have this hope that the Thai government will make life so untenable for Thais that we'll be able to get our wives and gf into the Uk on asylum law !

Seekingasylum · August 31, 2017

I can well understand your motive for relocation but is it strictly necessary? If your son is happily ensconced with grandparents who enjoy his company and he is settling into school nicely then perhaps trips back home to Thailand during the summer/xmas vacs would be a reasonable accommodation? Thailand where you presumably are well established after all these years and where you are gainfully employed, and enjoy a good standard of living, might be a better bet than Blighty - ultimately, for a family to enjoy a reasonable life one would need a minimum annual income of around £30,000 nett, assuming average rental/mortgage etc. Think of it as boarding school and one could possibly accept the arrangement as normal, particularly if you and mum weave in an annual trip to Blighty.

Still, if you do decide to proceed then I think with proper care and attention in the presentation of the application your wife should be able to obtain a visit visa allowing you to travel as a family and to assist in the preparation of your future home life. A letter of support from your MP would not come amiss provided it is made clear you are known to each other personally and he can proffer a reference as to good character. In terms of the Rules it means bugger all but it can't hurt.

As long as the visit visa application is accompanied by a well drafted submission explaining that a settlement visa will be lodged in due course, subject to you meeting the relevant criteria, ( and preferably drafted by a qualified legal practitioner ) in addition to all the other bits and bobs, she should get it.

The current Rules as they stand are an attack on ordinary British citizens and are unique in the developed world for their arbitrary and mercenary nastiness. The view is that they will be reviewed and amended if a Labour government is elected but in the meantime the disease that is May remains the reality. Best of luck to you and remember, you are not alone.

Edited August 31, 2017 by Seekingasylum

Jon Snow · August 31, 2017

Thanks Seekingasylum, that's a great idea but I'm afraid one which we have already tried last year. My son was unhappy without his parents there and although they didn't tell me themselves I know that it put a lot of stress on my ageing parents, one of whom is in their 80's....so unfortunately that option is off the table.

I appreciate your comments about the visitor visa, that is how I am thinking myself at the moment.

7by7 · August 31, 2017

13 hours ago, laislica said:

Is this of any use?

From here:

https://www.gov.uk/family-permit

You can navigate to here:

https://www.gov.uk/government/publications/eea-family-permits-eun02/eea-family-permit-eun02#eun29-how-do-i-establish-dependency-under-the-eea-regulations

EEA family permits are the method employed by the UK to enable EEA nationals who are, or will be, exercising a treaty right in the UK under the EU Freedom of Movement directive to bring their qualifying non EEA family members to the UK with them.

The FoM directive does not apply when the EEA national is moving to or living in the member state of which they are a citizen.

So the directive does not apply to British citizens living in or moving to the UK and so their non EEA national, in this case Thai, family members, are not eligible for an EEA family permit.

Unless they are currently living in another EEA member state together where the British citizen has been exercising a treaty right and they are now moving to the UK together. See 6. Surinder Singh.

So to qualify, the OP, his wife and son would first have to move to another EEA state, live there long enough to satisfy the eligibility requirements and then move back to the UK.

So not only could the OP and his family not move to the UK immediately, as is their desire, but by the time they have satisfied the eligibility requirements the UK could be out of the EU and, depending on the final exit deal, probably no longer bound by the FoM directive and so EEA family permits would no longer be an option for anyone!

7by7 · August 31, 2017

5 hours ago, Jon Snow said:

<snip>

I do have a connection with the local MP back home so I could play that card if it would help me. I'm guessing a letter from him assuring them that my wife would return to Thailand after her visa had expired would go a long way?

In addition to theoldgit's comments, I would like to add such letters, i.e. a guarantee that a visitor will leave the UK when or before their visa expires, are unenforceable in law and so ignored by the ECOs; no matter who writes them.

7by7 · August 31, 2017

4 hours ago, Seekingasylum said:

The current Rules as they stand are an attack on ordinary British citizens and are unique in the developed world for their arbitrary and mercenary nastiness. The view is that they will be reviewed and amended if a Labour government is elected but in the meantime the disease that is May remains the reality. Best of luck to you and remember, you are not alone

I have posted my views on the financial requirement many times. That is it is totally unfair because

it is a fixed figure which takes no account of the sometimes vast differences in wages and living costs across the UK and
it takes no account of any outgoings, not even living expenses let alone other outgoings such as debt repayments.

The other major change in July 2012 was extending the residential qualifying period for ILR from 2 years to 5. Something I agree with; apart from the need to make and pay for the FLR application after 30 months.

But it needs to be remembered that the Tory, or to be accurate; coalition, government were following a path begun by Labour.

Some examples.

It was Labour who first increased the residential qualifying period for ILR, from 1 year to 2.

It was Labour who introduced the language and LitUK tests, something I don't have a problem with.

It was Labour who introduced a fees structure which set the fees at figures well above the actual cost of processing.

It was Labour who introduced the principle of annual increases to those fees at rates way above inflation.

Will Labour change anything should they form a government? Will they remove the iniquitous financial requirement and revert back to the pre July 2012 adequate maintenance one?

Well, their 2017 General Election manifesto said they would; but what a party promises in their manifesto and what they actually do if in power is not always the same! Given the general anti immigration mood of the majority and the fact that this issue only effects a tiny minority, I doubt it would have been much of a priority.

Of course, manifestos change from election to election. we will have to wait and see if any such promise is in Labour's manifesto next time.

But we are in danger of wandering way off topic here. If you, or anyone else, wishes to discuss this further, I'd be happy to do so in a new topic.

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