Family visitor visa - after spouse visa refused

[webbynz]

Hi,

We have been living in the UK for 5 years. My wife's spouse visa expired in July 2014 before she could extend it due to her being pregnant and overlooking it (we also moved into our new house in Glasgow in June 2014). We went back to New Zealand where we're from in December for a holiday. My wife applied for another spouse visa from there and we just found out it was declined as we couldn't suffice the financial requirement. I am a British citizen as is our son. They are still back in Wellington.

We have come to realise that given the current immigration rules we are not going to be able to continue our life here in the UK. I am currently working full time and I thought that the UKBA may give consideration to allowing my wife in the UK for 3-4 months to enable our 6-month old baby to have a family and also for my wife to assist in seling our house and generally to help with the move out of the UK back to New Zealand.

We have bought return air tickets to allow this to support the fact that we do indeed intend to return to NZ. A couple of questions:
1. Does anyone have experience with a family visitor visa (especially after unsuccessfully applying for a spouse visa)
2. Given our circumstances, does anyone know if there is a possibility they will approve the application?
3. What other documents can I provide to affirm our position of returning to New Zealand in a few months?

Thanks in advance

[ban.s]

For OP's background situation

ILR question - wife's spouse visa has run out...

[ban.s]

where are you now? in UK or NZ?

what are your wife's ties with NZ?

considering her previous 4.5 years UK stay (including overstay beyond the visa expiry), recent spouse visa application and refusal - you really need to provide very strong supporting documents to justify visitor visa and intention of return to NZ after visit. A return ticket is usually not a strong enough evidence - it can be cancelled or amended any time.

regarding your property sale - have you officially instructed a solicitor and estate agent?

[webbynz]

Thanks for replying.

I am in the UK, I needed to return to work.

My wife's ties, she is a born and bred New Zealander (as am I), all of her family is there (and mine). We have a rental property there. We always intended to return to NZ at some point, this has just made our decision sooner than we would have liked.

Re: our property sale, no I haven't started that process yet, do you think initiating this could support the application? Anything else I could include?

I am desperate to get her and my boy here. Are they likely to deport her if she just turns up with our British baby son with no visa? Obviously that's a risk I'm not overly keen on her taking.

This is an unbelievable situation, I honestly cannot believe this is happening to us.

[ban.s]

have you considered relocating to EU, bringing your family there and later returning to UK through EU routes?

[webbynz]

yes, are you talking about surinder singh route? this is not really something i want to do to be honest. move to europe, get a job, new place to live etc. just seems like a real mission.

how likely do you think i am of her getting the visitor visa?

[Petaltop]

how likely do you think i am of her getting the visitor visa?

Apply and find out. Even thought she is a non-visa national for a visit to the UK, the government recomends that once refused a visa it is best to apply for a visitor visa. She will then know if she will be let in at the border, or not.

Just read your other thread. Why or why did you travel when you were advised to sort out a visa for your wife before you all returned home to NZ for a short Christmas visit?

[webbynz]

Her visa expired around the time she gave birth to our son, and we moved into a new house at the same time - lots going on, mistakes happen. We were told that as she wasn't on a valid visa that we couldn't apply for ILR or a spouse visa from within the UK and it was advised that we head to NZ and apply there.

[ban.s]

yes, are you talking about surinder singh route? this is not really something i want to do to be honest. move to europe, get a job, new place to live etc. just seems like a real mission.

how likely do you think i am of her getting the visitor visa?

I agree Singh route is a challenge its own right especially after UK have tightened the rules

The visitor visa is for short term visit with intention to return after completion of the trip.
Though your wife was born and raised in NZ but she has a British husband (living and working in the UK) and british child, spent last 4.5 years in UK, stayed beyond the expiry of her visa, applied very recently for spouse visa i.e. intention to join her husband in the UK. Hence the ECO needs to be convinced that the applicant would be indeed returning back and not overstaying. Chance of her getting the visitor visa is dependent on the strength of the supporting documents; documents that prove her stronger ties with NZ and weaker ties with UK. If you are wrapping up your estates here and genuinely considering relocation to NZ then formal property sale initiation documents, property listing etc might be helpful (IMHO). However whether it would be sufficient on its own - difficult to answer.

[webbynz]

I understand that there is no guarantee of a successful visitor isa application however we have to try. the reason i want my wife over here it two-fold, to restore our family and to help sell the house.

what are your thoughts on her coming to the border? how would an immigraiton officer likely treat her if she just arrived given the british baby?

thanks

[webbynz]

another thought to throw into the mix.....

i am a dual-national and have a new zealand passport. is it feasible that i have my current employer sponsor me, and i then apply for a tier 2 general visa, which will enable me to bring my family with me? this is just something i thought of when looking at the points based system.

[ban.s]

I understand that there is no guarantee of a successful visitor isa application however we have to try. the reason i want my wife over here it two-fold, to restore our family and to help sell the house.

what are your thoughts on her coming to the border? how would an immigraiton officer likely treat her if she just arrived given the british baby?

thanks

unless you provide strong evidence to support your relocation plan it's unlikely the visitor visa will be successful. as it appears you are still contemplating other options and such supporting documents may not be available to support the family visitor visa application so it's your choice whether you would wish to pursue that route knowing it's likely to be denied.

turning up at the border is definitely an option. In my opinion it's most unlikely she would be denied entry considering she would be travelling with a british baby. a temporary admission with or without detaining the passport is a likely scenario. however this will not solve her immigration problem and you'll have to pursue other options which will again be lengthy (and stressful) process.

[webbynz]

thanks for your response ban.s

the immigration lawyer i spoke with suggested that we would have more options when my wife is in the UK, so even if it is under temporary admission, then at least we have a few more options to sort the immigration issues. not the very least being that i be able to restructure my finances to enable us to meet the spouse requirements. the IL also stated that we could apply for "leave to remain on exception rule basis".

do you agree?

[ban.s]

i concur.

[webbynz]

i appreciate your help in this matter. fingers crossed eh?

[Casa]

Her visa expired around the time she gave birth to our son, and we moved into a new house at the same time - lots going on, mistakes happen. We were told that as she wasn't on a valid visa that we couldn't apply for ILR or a spouse visa from within the UK and it was advised that we head to NZ and apply there.

Actually, both myself and Vinny (who gave a link to the Rule) advised against leaving the UK for NZ until ILR was applied for. She would have stood a good chance of being granted ILR even though the application was being submitted late.

[webbynz]

you also stated that i should get some assistance from an immigration lawyer, which I did. unfortunately this financial requirement curtailed our spouse visa as the IL told us that we would be able to go to NZ and apply and fulfil our holiday etc.

anyway, what's done is done - i'm certainly not trying to point fingers at anyone merely trying to work out what the best next steps are and unfortunately this seems to be our only option given what a joke the immigration rules are in this country.

[Casa]

If an ILR application submitted in the UK had been refused due to failure to meet the income level, your wife would have stood a very strong chance of being granted an extension under the FLR(FP) category -right to family life. https://www.gov.uk/government/publicati ... form-flrfp
This option was lost once she left for NZ. Hopefully your solicitor will have experience of failed spouse visa applicants entering the UK without a valid entry permit and claiming residence as parent of a British child. I'm wary of it working, but would be happy to be proved wrong. I can understand your distress.

[webbynz]

surely if we explain our situation then they will see her as low risk? she's not working as she's raising our son. if we explain that we will be filing the ILR under FLR(FP) as soon as possible then i find it hard to believe the UKBA will deport or detain my wife and son. if the worst they will do is take her passport away and give her temporary admission then i would be satisfied with that outcome as at least we will be together as a family.

i note you are wary of doing this, and believe me i wouldn't usually entertain the idea however we are where we are. what would you anticipate will happen to my wife upon attempted entry?

[Casa]

She is likely to be viewed as high risk as she has already applied to re-settle and been refused and the disclosure that the intention is to apply for leave under the FP category will only re-inforce the Entry Officers suspicion of her intention to remain in the UK. The failed spouse visa application and her previous immigration history will flag up on the Entry Officer's system. A statement that you are planning to sell your UK property and return to NZ is something you won't be able to prove.
The best case scenario of course would be that Border Control officers let her enter. The worst case would be that she is returned to NZ on the next available flight. As highlighted in the previous thread, if she is allowed to enter as a visitor she will be unable to apply to stay under the FLR(FP) route.

[webbynz]

what about the British baby? what would happen to him if she gets deported?

[webbynz]

also, my understanding is that our solicitor could appeal the entry denial on the basis of article 8, is this not the case?

[Casa]

You would have the choice of your son remaining with you or returning to NZ with your wife. The ruies are harsh and regrettably there are many families separated due to not meeting the requirements, some simply due to the fact that the spouse is unable to pass the pre-entry English test.

[webbynz]

can i just ask, have you seen people in our situation have this happen to them? or are you applying a general comment based on the immigration rules? reason i ask is that the immigration lawyer i spoke with was adamant he has had significant number of people come in and if they have a British child are generally allowed into the UK.

[Casa]

Then he has the direct experience.