Returning Resident?

Dear all, thank you in advance for any help.

I am a British citizen currently working in Penang, Malaysia. My wife is Malaysian, and we married in the UK in September 1998. She was granted indefinite leave to remain in 2000. She left the
UK in 2002 to give birth to our twins in Malaysia. I followed, and subsequently found employment. So we decided to remain in Malaysia
until the end of my employment contract (May 2006).

Bearing in mind it will be more than four years since she left the UK, will my wife qualify as a returning resident (form VAF1), or must she apply for settlement (form VAF2)?

Thank you kindly

BA

As she has ILR but has been absent from the UK for a continuous period exceeding two years, she needs to use VAF1 to apply as a Returning Resident.

By the way, your twins, if they have not already got British Passports, you might like to start the process of obtaining them.

Dear John

Thank you very much indeed for your reply, much appreciated. We now have clear idea of the application steps required.

With regard to the twins, we have decided not to apply for British passports. Instead, we registered their birth with the British High Commission and are opting to apply for a right of abode certificate to be placed in their Malaysian passports.

Do you envisage any problems with a right of abode application?

Kindest regards

BA

Hi, assuming that the twins have British-style birth certificates, which will effectively confirm their British Status, no I don't envisage any problem getting them ROA stickers in their Malaysian passports. But you might like to enquire of the BHC how long getting such stickers will take, and application for them might as well be made sooner rather than later.

British passports can of course be obtained at any stage if you feel the need.

Thanks again John.

Yes my twins do have British style birth certificates.

One another note, could I just confirm again with you the matter of Returning Resident status. I’ve been browsing through this forum and found a posting entitled 'Entry Clearance for Spouse' (http://
http://immigrationboards.com/viewtopic.php?t=244).

Among one of the replies, Kayalami mentions the following:

‘If it is your wife who had ILR when you left the UK then she would be deemed to have lost it as she has been outside the UK for more than two years continuously. An application for a returning resident visa will thus be refused and an appeal will just be a waste of time because the appellate authorities will agree with the ECO. The only way she may be successful is if she has spent a longer proportion of her life in the UK than out of it. In any case once the spouse visa is approved she will be given Indefinite Leave To Enter and thus get her PR status back so the matter of a returning resident visa is moot. The spouse visa must be applied for on Form VAF2’

I’m a bit concerned and would appreciate some feedback.

Kindest regards and thanks

BA

Kayalami is well able to comment for himself and no doubt will do. Let's just say I don't agree. Also I think my comments are backed up by :-

Returning residents

Indeed, given that someone who has ILR and has been out of the UK for less than two years does not need to make any sort of application, who exactly does need to apply to an overseas mission to be treated as a Returning Resident? I think it is totally clear .... someone who already has ILR but has been out of the UK for more than two years. I think, look at it this way, they effectively need permission to reactivate their ILR.

hi john im a bit confused here, i was just wondering as when i was younger i had an indian passport, now I have a british passport and im a british citizen, if I left the uk for more than 2 years will there be any problems or form for me to fill in to come back or can i just catch a plane and come back?

Sreeni, you have no problem. You have your British Citizenship and can go abroad for as long as you like and still come back to the UK (assuming of course you have a valid British passport, but they can be obtained from overseas missions if necessary).

The person being mentioned in this thread is not yet British .... they "merely" have ILR. But now they have been outside the UK for a continuous period of more than two years, so now need permission to be treated as a Returning Resident.

John wrote:Kayalami is well able to comment for himself and no doubt will do. Let's just say I don't agree. Also I think my comments are backed up by :-

Returning residents

Indeed, given that someone who has ILR and has been out of the UK for less than two years does not need to make any sort of application, who exactly does need to apply to an overseas mission to be treated as a Returning Resident? I think it is totally clear .... someone who already has ILR but has been out of the UK for more than two years. I think, look at it this way, they effectively need permission to reactivate their ILR.

Don't intend to get the handbag out but not sure where the issue is. It might be worth reviewing in detail the pattern of the original post and matching answers I provided thereof starting with a need for EC on the basis that the OP never clarified which spouse held what PR (Japanese/ British) and where (Japan/UK). The topic drifted into the pm realm in any case where I recall my comments stating the revised/direct grant of ILE for those in a marriage of +4 yrs made the issue moot.

To clarify:

1. Your ILR status is intact where absences less than 2 years in a single stretch. Even the ILR letter issued states this. Long stretches outside UK with intermittent entries within this period are a dangerous attempt to play the system though the burden of proof is on IO. By virtue of misrepresentation making entry illegal its one of the easiest landing categories for an IO to sift out.

2. If absence over 2 years you must apply for returning resident visa. This is in effect a de-facto evaluation of your UK residence status with the burden of proof on the applicant.

3. There is a provision in the rules for those absent for more than 2 years but have spent a significant proportion of their life in the UK prior to said departure to have ILR status considered retained. Reverting to the linked post the OP's spouse lived in the UK for 22 yrs and in Japan for 7 yrs. No ECO would bother refuse a returning resident visa with those stats.

4. Where from 2 and 3 you do not qualify for a visa it means your ILR has been lost. An appeal would be dismissed on the grounds that you fail to meet the rules. You would need to re-enter the UK in another category.

Reverting to the current poster(Britishasian):

1. Enquire from the ECO whether based on absences and prior residence in UK if a returning resident visa may be issued to your spouse. IMHO answer is no.

2. Based on 1 get a settlement visa for your spouse on the basis of marriage of 4 yrs or more. She will get a full settlement visa (Indefinite Leave To Enter) rather than a probationary visa. In effect amended spousal rules mean ILR loss for long term spouses of BC's is moot as these (rules) negate returning resident's visa based on said marriage subsisting.

3. Since Malaysia does not currently allow dual nationality you may need to go through this again in future where another absence occurs. Have you confirmed that the issuance of ROA has no impact on your children's Malaysian citizenship (I expect minor's are deemed to have no choice on the matter and are thus exempt from said loss under such circumstances).

sreeni wrote:hi john im a bit confused here, i was just wondering as when i was younger i had an indian passport, now I have a british passport and im a british citizen, if I left the uk for more than 2 years will there be any problems or form for me to fill in to come back or can i just catch a plane and come back?

The holding of both BC and ILR is a peculiar feature of the UK immigration system. I am of the opinion that ILR should be cancelled effective grant of citizenship. Others e.g. US, Canada etc do this. This would invalidate any ILR stamps, vignettes etc. The ID bills if memory serves me correctly may have this as a consideration though indirectly.

Lots more guidance from UKVISAS on Returning Residents :-

Guidance - Returning residents (INF8)

Kayalami, as regards your last point, whether BC and ILR valid at the same time, when my wife and step-daughter got got their BC last June the papers included a sheet which said :-

.... This means that your previous indefinite leave to enter/remain, or settled status, no longer applies to you. ....

However neither of the ILR stickers was revoked, and indeed when we travelled to Thailand at Christmas/New Year their Thai passports were used exclusively in Thailand. That is, the Thai passport with ILR was used to check in at Bangkok airport, and then pass through Thai immigration control, although British passports shown to re-enter the UK.

As you say, this is a "peculiar feature of the UK immigration system", not stamping to revoke the ILR when BC granted.

Kayalami wrote:

sreeni wrote:hi john im a bit confused here, i was just wondering as when i was younger i had an indian passport, now I have a british passport and im a british citizen, if I left the uk for more than 2 years will there be any problems or form for me to fill in to come back or can i just catch a plane and come back?

The holding of both BC and ILR is a peculiar feature of the UK immigration system. I am of the opinion that ILR should be cancelled effective grant of citizenship. Others e.g. US, Canada etc do this. This would invalidate any ILR stamps, vignettes etc. The ID bills if memory serves me correctly may have this as a consideration though indirectly.

So Kayalami are you saying that after I have a British passport I can still enter the UK on my foreign passport with the ILR sticker? It would make it easier to travel as I would not have to carry my british passport just to re-enter the UK.

marka

Marka, I think, no! I think you should use your British Passport to re-enter the UK. One reason why you should do that is that you can go through the EEA/Swiss channel at the airport rather than the Other passports channel. Usually much quicker!

Also it is totally possible that the IND computer system now shows the ILR as revoked, even if the visa has not been marked "Cancelled" in your non-British passport.

As necessary, carry both passports.

Our trip to Thailand last Christmas summarises this. (My wife has both Thai and British passports) :-

• Check in at Birmingham airport using British passport
• Go through Passport Control in Bangkok using Thai passport
• Use Thai passport to check in at Bangkok airport at the start of the journey back
• Use Thai passport to go through immigration control at Bangkok airport
• Use British passport on arriving back at Birmingham

That is, only use the Thai passport in Thailand .... only use the British passport in the UK.

Same principle I think if non-UK country is not Thailand but instead is another country.

marka wrote:So Kayalami are you saying that after I have a British passport I can still enter the UK on my foreign passport with the ILR sticker? It would make it easier to travel as I would not have to carry my british passport just to re-enter the UK.

I have said that the UK for no obvious reason does not invalidate one's ILR upon grant of British Citizenship - there is no specific reference to such in any of the Immigration Acts, Rules and Regulations thereof. A consequence of such is that multiple travel documents of differing nationalities could be used to enter the UK. It is advisable to always enter the UK on your British Passport as this would be conclusive proof of your right of abode. As per previous comments it also expedites your passing through passport control.

Kayalami wrote: I have said that the UK for no obvious reason does not invalidate one's ILR upon grant of British Citizenship - there is no specific reference to such in any of the Immigration Acts, Rules and Regulations thereof. A consequence of such is that multiple travel documents of differing nationalities could be used to enter the UK. It is advisable to always enter the UK on your British Passport as this would be conclusive proof of your right of abode. As per previous comments it also expedites your passing through passport control.

Slightly overt the topic- I still travel on my non-UK passport when I go to my home country (Canada) and the US, and use the Canadian passport to come back using the non-EU line (partly out of habit, partly because I get stamps on my passport to show when I entered and left the UK). My passport has ILR stamped on it using the old style Ink stamps. Every time, the IO puts my passport through the machine that reads machine readable passports, asks me how long I have been away and stamps it and lets me through as I have ILR.
I know than I am entitled to ROA- my wife has already got ROA on her passport. However, I have not done this yet because it took 3 months for her to get her passport with ROA back and it is still the old style gummed sticker- if I am paying £120, I expect to get a new EU standard ROA rather than the old gummed dodgy looking one