Spouse visa refused--married 18 years--please help

Hi everyone. I just received a refusal of entry clearance. I'll try to make a very long story as short as possible. My Scottish wife and I (American) have been married 18 years and have 4 kids. We have lived in both countries legally a number of times. The last time in the UK, I had ILR for 8 years. (1999-2007). She has had a Green Card twice, (the last time, from 2007-present). Due to family circumstances in the UK, we wanted to move back to the UK this year. My wife and kids went ahead of me in June, while I stayed back to try to sell our house and apply for a visa (I did visit UK for a couple weeks in June).

Thought the visa would be a breeze, as I have lived there before, and held a job, owned house, etc. for the whole time in the UK. Never any issues before with visas in either direction (other than aggravating expense and waiting).

So I filled out the online form, answered the questions honestly, pointed out that my whole family is awaiting my return, and it spit out what their online system deems to be the appropriate forms and instructions for my circumstances. Went to St. Louis USCIS to have my biometrics done, gathered appropriate documents per the instructions, sent it all to Chicago and waited about 2 months for a refusal.

Under "The Decision." they state:

"--I acknowledge that you provided evidence to demonstrate that in September 2000 you were granted Indefinite Leave to Remain in the UK, and that you are now seeking entry again to the UK for the purpose of settlement. I note from your passport that on your last entry to the UK in May 2010, you were stamped as a visitor. I am therefore not satisfied that you have not been away for more than two years as is required under Paragraph 18(ii)."

"--I am aware that provisions exist for persons who have ties with the UK country which merit admission, even if they have not been resident in the UK for two years. In support of your application you have provided no evidence that you have maintained strong ties to the UK during your period of absence and having considered the circumstances of your case, I am not prepared to exercise discretion in your favour."

Now, on the first point; I'm not sure why they pointed that out. I'm quite aware that I have been absent for more than 2 years, and have never indicated otherwise. In fact, it is my understanding that if it had been less than 2 years, I would not even need to apply. It has been over 2 years, so therefore I am reapplying.

On the 2nd point. What stronger evidence can there be of strong ties to the UK, than my entire family being British passport holders, 3 of my four children being born there, and they are all present in the UK at the time of applying? Further, my eldest son has been there in college for the past 2 years.

I don't know what further evidence I can provide for a successful appeal.

Please help.

did you apply for settlement visa or returning resident visa

Hi, I don't really know about this but sounds like they are saying you don't qualify as a returning resident...
http://www.ukba.homeoffice.gov.uk/settl ... residents/

But you weren't trying to, right? I don't know difference between what you did and what you should have done... sorry!

It sounds like that they are saying is that you still have ILR and therefore they cannot issue you with another visa as you do not require one as your ILR is still valid.

Dawie wrote:It sounds like that they are saying is that you still have ILR and therefore they cannot issue you with another visa as you do not require one as your ILR is still valid.

But if his ILR was still valid he'd be classed as a returning resident? And they say he isn't. This is the paragraph the decision refers to:

Returning Residents
18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:

(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and

(ii) has not been away from the United Kingdom for more than 2 years; and

(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and

(iv) now seeks admission for the purpose of settlement.

Dawie wrote:It sounds like that they are saying is that you still have ILR and therefore they cannot issue you with another visa as you do not require one as your ILR is still valid.

No. I think that the decision rejects that he is a returning resident, although the rejection should probably have been for failing 18(i). Using a double negative is confusing.

qddp wrote:Under "The Decision." they state:

"--I acknowledge that you provided evidence to demonstrate that in September 2000 you were granted Indefinite Leave to Remain in the UK, and that you are now seeking entry again to the UK for the purpose of settlement. I note from your passport that on your last entry to the UK in May 2010, you were stamped as a visitor. I am therefore not satisfied that you have not been away for more than two years as is required under Paragraph 18(ii)."

"--I am aware that provisions exist for persons who have ties with the UK country which merit admission, even if they have not been resident in the UK for two years. In support of your application you have provided no evidence that you have maintained strong ties to the UK during your period of absence and having considered the circumstances of your case, I am not prepared to exercise discretion in your favour."

vinny wrote:

Dawie wrote:It sounds like that they are saying is that you still have ILR and therefore they cannot issue you with another visa as you do not require one as your ILR is still valid.

No. I think that the decision rejects that he is a returning resident. Using a double negative is confusing.

qddp wrote:Under "The Decision." they state:

"--I acknowledge that you provided evidence to demonstrate that in September 2000 you were granted Indefinite Leave to Remain in the UK, and that you are now seeking entry again to the UK for the purpose of settlement. I note from your passport that on your last entry to the UK in May 2010, you were stamped as a visitor. I am therefore not satisfied that you have not been away for more than two years as is required under Paragraph 18(ii)."

"--I am aware that provisions exist for persons who have ties with the UK country which merit admission, even if they have not been resident in the UK for two years. In support of your application you have provided no evidence that you have maintained strong ties to the UK during your period of absence and having considered the circumstances of your case, I am not prepared to exercise discretion in your favour."

Surely be definition then, because the OP has not been away from the UK for more than 2 years he has still retained his ILR and therefore has no need to apply for entry clearance in the first place?

If he was last admitted as a visitor, then 18(i) fails.

qddp wrote:On the 2nd point. What stronger evidence can there be of strong ties to the UK, than my entire family being British passport holders, 3 of my four children being born there, and they are all present in the UK at the time of applying? Further, my eldest son has been there in college for the past 2 years.

Did you supply any evidence about this?

Dawie wrote:

vinny wrote:

Dawie wrote:It sounds like that they are saying is that you still have ILR and therefore they cannot issue you with another visa as you do not require one as your ILR is still valid.

No. I think that the decision rejects that he is a returning resident. Using a double negative is confusing.

qddp wrote:Under "The Decision." they state:

"--I acknowledge that you provided evidence to demonstrate that in September 2000 you were granted Indefinite Leave to Remain in the UK, and that you are now seeking entry again to the UK for the purpose of settlement. I note from your passport that on your last entry to the UK in May 2010, you were stamped as a visitor. I am therefore not satisfied that you have not been away for more than two years as is required under Paragraph 18(ii)."

"--I am aware that provisions exist for persons who have ties with the UK country which merit admission, even if they have not been resident in the UK for two years. In support of your application you have provided no evidence that you have maintained strong ties to the UK during your period of absence and having considered the circumstances of your case, I am not prepared to exercise discretion in your favour."

Surely be definition then, because the OP has not been away from the UK for more than 2 years he has still retained his ILR and therefore has no need to apply for entry clearance in the first place?

This is confusing - but my interpretation of the decision is this:

"I see you came back as a visitor ... if you had been away for less than 2 years - you would have been able to use your ILR or apply as a returning resident - therefore you were away for more than 2 years and you don't qualify under 18(II)".

My own humble opinion is that whoever handled your case has seriously confused the issue and maybe went through your application in a hurry. I'd write to them seeking reconsideration on the basis that you are aware that your absence from the Uk for more than 2 years invalidates your ILR and it is for precisely that reason that you have applied for leave to enter as a spouse.