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Thomas
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6305
Experience:  BA (Hons), PgDip, Practising Solicitor
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I am a british citizen who is returning to the UK, my wife

Resolved Question:

I am a british citizen who is returning to the UK, my wife is a South African citizen who had indefinite leave to remain in the UK. We have been living outside the UK for nine years, so she applied for a returning residents visa which has been refused. Should she appeal or apply for settlement as a spouse?
Note: We have been married for 16 years and have two children.
Submitted: 3 years ago.
Category: UK Law
Expert:  Thomas replied 3 years ago.
Hi

What does the stamp in her passport say?

What exactly did you apply for?

Once a person had ilr it is only revoked in exceptional circumstances and I've never heard of a returning residents visa.

Tom
Customer: replied 3 years ago.
Her passport stamp says "given leave to remain in the UK for an indefinite period" dated 25/04/1996.
She applied for a settlement visa, sub type "returning resident"
Apparently, if you have lived outside the UK for more than 2 years, you lose your ilr and as we have been overseas for 9 years, I assume she no longer qualifies as a resident.
In the letter of refusal, it refers to paragraph 18 (ii) of the immigration rules as the reason.
I am a little surprised that you haven't heard of the returning residents visa. Do you have sufficient knowledge of immigration law to be able to help me?
Expert:  Thomas replied 3 years ago.

Hi,

 

The power to revoke ILR after having been out of the country is a discretionary power of the UKBA. Usually where one can demostrate that the person seeking to return on the basis of their ILR has sufficient ties to the UK then it would not be revoked. Most of the experience I have had with persons returning on ILR after being out of the country is that they have been taken for an interview at the airport and asked to explain their time out of the country and their remaining ties to the UK.

 

This has now changed slightly as a result of the recent rule changes.

 

Can you confirm you applied using form VAF4B?

 

Tom

Customer: replied 3 years ago.
Yes, that is the form we used. They say it is because we lived outside the UK for 9 years.
Expert:  Thomas replied 3 years ago.

Hi,

 

Are you return as a family?

 

Do you have any evidence of your intention to settle in the UK again? eg. job offers, ownership of property, evidence of the children applying to be UK schooled etc.

Kind regards,


Tom

Customer: replied 3 years ago.
Hi Tom
We want to return as a family.
The only 'evidence' we have is :
We have just opened up a bank account in the UK.
We have booked our removal firm to ship our belongings to the UK
(which is on hold at the moment)
We dont have anything else at the moment because we are not 100% sure where we are going in the UK. I will be establishing my own business there and bringing all of our belongings and transferring our money.
Expert:  Thomas replied 3 years ago.

Hi,

 

Do you have a business plan or other supporting correspondence/documentation that you could use as evidence of your plan to re-settle as a family?


Tom

Customer: replied 3 years ago.
Hi
Not as yet
Expert:  Thomas replied 3 years ago.

Hi,


Thanks for your repy. I was trying work out whether it would be worth asking for a reconisderation rather than appealing the decision.

 

In my view the quickest way to secure your wife's leave to remain in the UK as your spouse would now be for a fresh spouses visa applicaiton to be made to the UK embassy in Austriaila. An appeal is expensive and will also take quite a long time to arrange.


She will have to apply using form VAF4 and when doing so you should both submit notiarised statement regarding you previous time in the UK, your time in Australia + the reasons for it and your plans to return. Where a couple have been married and living in another country in excess of 4 years indefinite leave to remain will be granted provided they satisfy the spouses visa eligibiblity criteria. In this sense it does seem like a bit of a silly decision to refuse, but there is going to be a fair amount of interpretation made of the new rules.

 

The UKBA aims to reach a decision on spouses visa application within 6-8 weeks of submission, but they are prone to overun.

 

If this has been useful please kindly click accept so that I may be rewarded for my time. It will be gratefully received and you will be free to ask follow up questions.

Kind regards,


Tom

Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6305
Experience: BA (Hons), PgDip, Practising Solicitor
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