Spouse re-enter UK on ILR Visa?

[wombat]

Hi there

I am hoping someone can help me with a query.

My wife was granted Indefinite Leave to Remain back in March 2003. She is an Australian citizen. I am a UK citizen. We both left the UK in 11/04 and have lived in Australia ever since. My wife has NOT been back to the UK since then.

My question is - can she simply re-enter the UK on her Indefinite Leave to Remain Visa or does she need to apply for a completely new visa?

Thanks.

[John]

Given that she has been absent from the UK for in excess of 2 years she cannot just return. She needs to file a form VAF1 at her nearest British Mission to be treated as a "returning resident". The granting of such application effectively reinvokes her ILR.

Go to this UKVisas webpage and then download the VAF1 application form and the INF8 Returning Residents Guidance Notes.

[wombat]

Given that she has been absent from the UK for in excess of 2 years she cannot just return. She needs to file a form VAF1 at her nearest British Mission to be treated as a "returning resident". The granting of such application effectively reinvokes her ILR.

Go to this UKVisas webpage and then download the VAF1 application form and the INF8 Returning Residents Guidance Notes.

Thanks

So she does not need to apply for a spouse settlement visa just a residents return visa?

[John]

If she can make a successful application to be treated as a "returning resident" that is far better than applying for a further 2-year spouse visa, given that would lead to ILR needing to be applied for again in 2 years time.

A successful "returning resident" application effectively reactivates the existing ILR! That is far better!

Also ..... application fee for "returning resident" application is now AUS$520 ... compared to AUS$1300 for a spouse visa application.

[wombat]

Ok.

As she is married to me does that satisfy their requirement that she should have close family ties? What else would she need to provide to maximize her chances of getting a residents return visa?

My question is effectively - what criteria does she need to meet to be granted a resident's return visa?

[John]

As it says in the INF8 guidance notes :-

As a guide, you should include evidence that you used to live in the UK, for example a previous passport, National Insurance or income tax records, letters from employers or payslips.

What records have you got, or could get, that show information of that type?

Also enclose details .... a covering letter .... making it clear that you are British and that you will be moving back to the UK to live.

IMHO the need for evidence is far less for a "returning resident" application than for a spouse visa application.

If you click here you can view the detailed instructions given to ECOs dealing with this type of application. In particular read 20.4.

[wombat]

OK, John. Thanks a lot for your help.

We can show that she used to reside in the UK - tax letters, letter from employer, bank statement etc.

We can also write a cover letter to state that we came to Aus due to my job here and now we are returning. She has only been out for 2.7 years, only 7months over the 2 year limit.

Do you think this will be enough?

[John]

Probably, especially if the move to Australia was related to your job. But have a careful read of that 20.4 and take account of what it says.

[wombat]

Spoke to UK immigration at Canberra HC and was told that she will not qualify for a Resident's Return visa as she only spent 7 months in the UK before she left as a Perm Res. Therefore we have to apply for a Spouse visa all over again... RIDICULOUS!

[John]

If she only spent 7 months in the UK then I don't understand :-

My wife was granted Indefinite Leave to Remain back in March 2003. She is an Australian citizen. I am a UK citizen. We both left the UK in 11/04

On what basis did she get ILR? How long was she in the UK prior to getting that ILR?

[wombat]

She was in the UK from 2002 on a Working Holiday visa and then a marriage visa. Her ILR was granted 03/04. We left 11/04, meaning she was only in the UK for 7 mths on the ILR.

[John]

Did you explain to the BHC that she had actually lived in the UK for 2 or 3 years?

Your wife got her spouse visa prior to 01.04.03? If so that would explain it, because it would have been a 1-year spouse visa. Which explains the ILR in March 2004.

[wombat]

Yes I explained that but to no avail.

$1,300 beckons

[John]

Well not just that, but assuming that 2-year spouse visa granted, near the end of that 2 years there will be the need to apply for ILR again ..... currently £750 by post or £950 in person at a PEO .... but in 2 years time ... well who knows how much then!

That checklist in the instructions to ECOs :-

• the length of the original residence in the UK;
• the time the applicant has been outside the UK;
• the reason for the delay beyond the 2 years - was it through their own wish or no fault of their own (e.g. having to care for a sick or elderly relative)?;
• the reasons for leaving the UK and for wishing to return now;
• the nature of the family ties in the UK;
• how close are they and to what extent have they been maintained during the absence?;
• do they have a home in the UK and, if admitted, would they remain and live there?

How does your wife get on applying that list? And do notice that the first item is the length of time in the UK, not the length of time with ILR in the UK.

[wombat]

Well not just that, but assuming that 2-year spouse visa granted, near the end of that 2 years there will be the need to apply for ILR again ..... currently £750 by post or £950 in person at a PEO .... but in 2 years time ... well who knows how much then!

That checklist in the instructions to ECOs :-

• the length of the original residence in the UK;
• the time the applicant has been outside the UK;
• the reason for the delay beyond the 2 years - was it through their own wish or no fault of their own (e.g. having to care for a sick or elderly relative)?;
• the reasons for leaving the UK and for wishing to return now;
• the nature of the family ties in the UK;
• how close are they and to what extent have they been maintained during the absence?;
• do they have a home in the UK and, if admitted, would they remain and live there?

How does your wife get on applying that list? And do notice that the first item is the length of time in the UK, not the length of time with ILR in the UK.

I agree with your interpretation and I think she meets that list BUT I have been told by two caseworkers at the British high Commission that they would refuse the application. They said I can send it in but they don't think she qualifies.

[John]

OK there is a cost of AUS$520 to submit the "returning resident" application, but those two caseworkers are basing their opinion without seeing all the evidence you will supply in support of the application.

Blunt question .... why did your wife spend more than 2 years outside the UK after getting her ILR? That is, how would you deal with the third bullet point?

[JAJ]

I agree with your interpretation and I think she meets that list BUT I have been told by two caseworkers at the British high Commission that they would refuse the application. They said I can send it in but they don't think she qualifies.

You may wish to investigate the options for appealing a negative decision. They have to apply the rules, not base the decision on a whim.

[wombat]

OK there is a cost of AUS$520 to submit the "returning resident" application, but those two caseworkers are basing their opinion without seeing all the evidence you will supply in support of the application.

Blunt question .... why did your wife spend more than 2 years outside the UK after getting her ILR? That is, how would you deal with the third bullet point?

[wombat]

OK there is a cost of AUS$520 to submit the "returning resident" application, but those two caseworkers are basing their opinion without seeing all the evidence you will supply in support of the application.

Blunt question .... why did your wife spend more than 2 years outside the UK after getting her ILR? That is, how would you deal with the third bullet point?

because we moved to Australia due to a good job offer for me and stayed here as we enjoyed it. no other reason. If we submit a Returning Resident AND a Spouse application will they refund the spouse fee if the RR application is successful?

[John]

I don't think so, it is an application fee, not a success fee.

But no harm ... apart from the cost .... applying for the "returning resident" first and if that fails then filing the spouse visa application.