Success! UK Spouse Visa - Malaysia (via Manila)

Hi all.

My wife is staying in the UK on a tourist visa before heading back to Malaysia to apply for her Spouse Visa.

However, because we are waiting for our house to sell (so that we can meet the financial requirement etc.), and because this process is taking longer than expected, she might want to come back into the UK again on a tourist visa.

Now I understand that if she stays in the UK for extended periods of time, this will be construed as her "living" in the UK and not just visiting as a tourist, which I can totally understand.

However, one thing I can't find is how long does she have to stay out of the country before she can come back in.

Immigration Rules (Part 2) states:

41. The requirements to be met by a person seeking leave to enter the United Kingdom as a general visitor are that he:
ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits;

And that really is it. They don't define exactly what an extended period is, or break it down into so many days in a 12 month period, or you have to leave the country for 3 months or anything else. I posed this question to an immigration official at Heathrow, and was told that as long as she can show an intention to leave the country at the end of her tourist visa period, she "should" be allowed back into the UK. For that reason, she "will" have all of her Visa application docs and a return ticket back to Malaysia. My worry is that talking to one immigration official one day is not the same as talking to another immigration official 5 months later.

Does anyone have experience of this or can point me in the right direction or person to ask.

Thanks in advance.

Phil

Generally, the Immigration Entry Officer will check to see whether she will have spent more time in the UK in a 12 month period than in her home country.

Casa wrote:Generally, the Immigration Entry Officer will check to see whether she will have spent more time in the UK in a 12 month period than in her home country.

Hi Casa, thanks for your reply.

Sorry, but I have to ask, Generally? This sounds a bit hit and miss, in that sometimes they will check and sometimes they won't. Is this written down somewhere that I can refer to?

Phil

It's open to interpretation by the entry officer as to whether a visitor is exceeding the amount of time in a 12 month period. This is from the Immigration Rules Part 2 41 (ii)
(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him;
and does not intend to live for extended periods in the United Kingdom through frequent
or successive visits

Casa wrote:It's open to interpretation by the entry officer as to whether a visitor is exceeding the amount of time in a 12 month period. This is from the Immigration Rules Part 2 41 (ii)
(ii) intends to leave the United Kingdom at the end of the period of the visit as stated by him;
and does not intend to live for extended periods in the United Kingdom through frequent
or successive visits

Hi Casa,

That's the same paragraph that I quoted in my original question. But that is my entire question "open to interpretation" - what constitutes frequent visits (2, 3, 5, more?) or successive visits (what is the minimum gap between visits that make them successive?). In order to make a professional, consistent decision, they must at least have some written guidelines to assist them.

Phil

My opinion is that there shouldn't be any problem as long as
1. Your wife doesn't spend over 6 months,I'm saying this because your wife isn't an habitual visitor, except she's been coming on a tourist visa before.
2. It was stated in her previous application she was coming to visit you or she's got a spouse or boyfriend as the case may be,if this has been concealed from them,then you might start thinking of how to explain that.
If your wife spends 5 months for instance and apply for spouse visa, I don't see any problem, but if she spends 5 months,goes back and within a month or week she's coming back,she will obviously be questioned.

After spending ( I assume) 6 months on this visitor visa, how long does she intend to spent outside of the UK before she returns on a visitor visa again?

Casa wrote:After spending ( I assume) 6 months on this visitor visa, how long does she intend to spent outside of the UK before she returns on a visitor visa again?

Hi Casa.

We actually have two options.

My wife's current tourist visa runs out 18th December.

1) Plan one was for her to visit friends in Switzerland for 3 days in November, come back to the UK with a ticket in her hand for a mid January departure back to Malaysia. She would then stay there until her Spouse Visa application was complete. This would allow her to at least spend Christmas with me and our son.

2) Plan two is for her to depart before her visa runs out in December and remain in Malaysia either until her Visa is complete or until "enough" time had passed for her to come back to the UK on another tourist visa (hence my question about how long is long enough).

Obviously Plan one is the better option; she stays within the law and spends time with her family over Christmas.

Phil

Going with plan 1 will have a strong risk of her being refused entry if her visitor visa has expired.
Plan 2 stands more chance if she spends a few months in Malaysia before applying for another visitor visa. This would avoid her being seen to have spent more time in the UK in a 12 month period than she has spent in Malaysia.

When do you intend to submit the spouse visa application?

Casa wrote:Going with plan 1 will have a strong risk of her being refused entry if her visitor visa has expired.
Plan 2 stands more chance if she spends a few months in Malaysia before applying for another visitor visa. This would avoid her being seen to have spent more time in the UK in a 12 month period than she has spent in Malaysia.

When do you intend to submit the spouse visa application?

Hi Casa

I should highlight that she currently has a tourist visa, which is the basic stamp that all tourists get when they enter the UK, not a pre-applied for visitors visa. As I'm sure you know, this allows her 6 months and can be re-stamped on entry after a seemingly undiscoverable length of time outside of the UK.

As stated earlier, we are waiting for our house to be sold in Malaysia, which will give us sufficient funds to meet the financial savings requirement. Malaysia is a particularly slow place to sell a house. We already have a purchaser, but the process has taken almost 1 year so far to complete. I wish I could put a final date on that but Mystique Meg would have a better chance of doing that than me. We hope that it will be finished mid January.

Phil

Bear in mind that the spouse visa application can only be submitted from outside of the UK and that while it's being processed your wife will be without her passport.

Casa wrote:Bear in mind that the spouse visa application can only be submitted from outside of the UK and that while it's being processed your wife will be without her passport.

Which is exactly why I want to maximize her time in the UK.

Casa wrote:Going with plan 1 will have a strong risk of her being refused entry if her visitor visa has expired.
Plan 2 stands more chance if she spends a few months in Malaysia before applying for another visitor visa. This would avoid her being seen to have spent more time in the UK in a 12 month period than she has spent in Malaysia.

When do you intend to submit the spouse visa application?

Hi Casa

Would you agree or disagree with this statement:

There is no hard and fast rule (i.e., written in black and white in an official document) about the length of time that a tourist must be out of the country (in a 12 month period or other) between being given stamps in their passport that allows them to stay for 6 months?

I'm going to call UKVI on Monday, but of course it would be nice to be armed with this information before doing so.

Phil

As far as I'm aware, you're correct unless someone else on the forum can point you to something more specific that I've missed.
I would have to say however that UKVI 'help line' staff aren't renowned for the accuracy of their advice and will bear no responsibility for the advice given.

I've sent you a PM.

No one - even the people at UKVI themselves - can tell you what the situation will be for your wife if she returns after such a short period.

The entire thing is down to the opinion of the ECO and their manager.

If they believe she is de-facto residing in the UK - she'll be turned around at the border. That then has to be declared on all future visa applications (as a 'refusal of entry') - and may affect applications to other countries.

You're basically planning on her being here for 5 months, leaving for a few days, and coming back for another 2-3 months. As an outsider - I'd suggest that's really pushing the idea of a visitor.

Equally - they might not bat an eyelid at the border.

Plan 2 is the far more certain plan.

M.

MPH80 wrote:No one - even the people at UKVI themselves - can tell you what the situation will be for your wife if she returns after such a short period.

The entire thing is down to the opinion of the ECO and their manager.

If they believe she is de-facto residing in the UK - she'll be turned around at the border. That then has to be declared on all future visa applications (as a 'refusal of entry') - and may affect applications to other countries.

You're basically planning on her being here for 5 months, leaving for a few days, and coming back for another 2-3 months. As an outsider - I'd suggest that's really pushing the idea of a visitor.

Equally - they might not bat an eyelid at the border.

Plan 2 is the far more certain plan.

M.

I totally hear you MPH

Casa just pointed me towards another site that listed the following:
i. There is no restriction on the number of visits a person may make to the UK, nor any requirement that a specified time must elapse between successive visits.
ii. The periods of time spent in the United Kingdom and the country of residence will always be important.
iii. Both the expressed purpose of the visit and what the appellant has done in the past and intends to do in the future is material, together with the length of time that has elapsed since previous visits. In cases of this type, the appellant will be visiting a relative, often a parent visiting a son or daughter, often a son or daughter visiting a parent. In the case of a parent visiting a son or daughter, the parent will often fully participate in helping in the house, providing child care. In the case of a son or daughter visiting a parent, the adult child will often assist in care arrangements. None of these activities, for that reason alone, will take the individual outside the definition of a genuine visitor.
iv. The links that the appellant retains with her country of residence will be a material consideration. The presence of other family members will be a material consideration.
v. The Tribunal is required to ascertain what is the reality of the arrangement entered into between the appellant and the host in the United Kingdom. Is the reality that the appellant is resident in the United Kingdom and intends to be for the foreseeable future?
vi. The issue may be approached by considering whether the reality is that the appellant is now no more than a visitor to her country of residence as the purpose of the return home is confined to using his or her presence there solely as the means of gaining re-admission to the United Kingdom.
vii. This does not preclude the appellant from remaining in the country of residence for the least amount of time sufficient to maintain her status as a genuine visitor.
viii. Family emergencies, whilst likely to result in a longer visit than the established pattern, should not be regarded as taking up residence without adequate supporting evidence to that effect. Thus, the pregnancy of a daughter or daughter-in-law or the aftermath of the birth might explain a more-protracted stay (within the 6-month duration of a single permitted visit); so, too, a serious medical condition.
ix. There may be comparisons with the person who owns homes in two different countries. Is he resident in both or a visitor to one of them?

Thanks for your input. I would appreciate it if you would cross your fingers for us

Phil

Please note my caution in your wife giving the information in an interview with the entry officer that she will be applying for a spouse visa and is selling the house in Malaysia. When applying for a visitor visa (I know your wife has a stamp on entry) the applicant has to show that they have strong ties to their home country, i.e ties such as ownership of property, employment, family commitments. You wife may well be asked to show evidence of this which would be difficult to do in the circumstances.
Many over-stayers are here in the UK having entered on a visitor visa and have then by-passed the legal settlement visa application. Admittedly they are here illegally but they often hope for a visa to be granted outside of the Rules under the right to family life.
Entry officers are therefore vigilant for any visitor that they feel may be tempted to take this route.

Wouldn't it be better to pay the price now than put yourself in a tight corner? I think that's the best approach to deal with this people because you'll end up dealing with them for longer period than you're planning now if they flag something up tbh.

Rayking if you're suggesting they submit the spouse visa application instead of waiting, they aren't able to meet the financial rule until their house in Malaysia is sold.

Casa wrote:Rayking if you're suggesting they submit the spouse visa application instead of waiting, they aren't able to meet the financial rule until their house in Malaysia is sold.

No,I'm referring to returning back on tourist visa or staying too long,the price to pay now is being apart in the short term,so it doesn't affect their spouse visa when they eventually meet the financial requirement. I believe if her tourist visa is questioned now it will definitely have an effect when they're ready to apply for spouse visa.

Casa wrote:Please note my caution in your wife giving the information in an interview with the entry officer that she will be applying for a spouse visa and is selling the house in Malaysia. When applying for a visitor visa (I know your wife has a stamp on entry) the applicant has to show that they have strong ties to their home country, i.e ties such as ownership of property, employment, family commitments. You wife may well be asked to show evidence of this which would be difficult to do in the circumstances.
Many over-stayers are here in the UK having entered on a visitor visa and have then by-passed the legal settlement visa application. Admittedly they are here illegally but they often hope for a visa to be granted outside of the Rules under the right to family life.
Entry officers are therefore vigilant for any visitor that they feel may be tempted to take this route.

Hi Casa

That's definitely interesting information.

My worry is that bending the truth or omitting information during such an interview is only going to lead to disaster. These people listen to liars all day long and know how to smell a rat. I believe that our paper trail, which could also include messages posted on forums, clearly shows that we are not trying to circumvent the law, and that we want to do things properly. This doesn't mean that I agree with the law; I think it's despicable; but that's a whole other thread

At the moment, I think my wife is going to take her short trip, and if they re-stamp her passport, that would be brilliant, but otherwise she will head back to Malaysia before her tourist visa runs out. I'm still hopeful that our house will sell really soon, so she will be heading back to do her visa anyway.

Phil

I'm certainly not suggesting your wife lie in an interview, this always come back to bite later down the line. However, what I would suggest it that your wife doesn't volunteer the information that she is planning to sell the house in Malaysia and apply for a spouse visa.
After all, plans change and at the present time she is genuinely entering to visit you, her husband. My personal opinion is that it wouldn't be wise to carry paperwork relating to the house sale, as ownership of property in the home country is considered a strong reason for not overstaying the visa.

I don't entirely agree with Rayking's advice that if a visitor visa is refused it will affect a spouse application. The other way around, yes as a failed spouse visa application (where the applicant has shown an intention to settle) is likely to cause a later application for a visitor visa application to fail as it would be difficult to prove that the intention to settle has changed. For example, this is a common occurrence with failed elderly dependent settlement visas when a visitor visa application is submitted after the refusal.

At the moment, I think my wife is going to take her short trip, and if they re-stamp her passport, that would be brilliant, but otherwise she will head back to Malaysia before her tourist visa runs out. I'm still hopeful that our house will sell really soon, so she will be heading back to do her visa anyway.

I need to pick up on this - you said your wife doesn't have a formal visa - she has a stamp right?

That's a single entry - up to 6 months - stamp.

It doesn't guarantee, in any way, that she'll be allowed back into the UK after her trip - the options are: 1) They re-stamp it and give another 6 months (or less depending on the ECO) or 2) They put her on a plane. There isn't an option to carry on using the stamp she's got.

Good point MPH80. I think she should be prepared not to be permitted re-entry following her short trip outside of the UK. As we already know, it's down to the personal interpretation by the Entry Clearance Officer at Border Control.

Casa wrote:Good point MPH80. I think she should be prepared not to be permitted re-entry following her short trip outside of the UK. As we already know, it's down to the personal interpretation by the Entry Clearance Officer at Border Control.

That's good info Casa and MPH80

I hadn't considered that her current stamp was only for a single visit.

Two questions: First MPH80, you say that the ECO could give her a less than 6 months entry, how would they enforce that? And secondly, if she was bounced on re-entry, would she be sent back to her home country (Malaysia) or back to her last port of exit (Switzerland)?

Phil