Location Spouse Visa application is made?

[limey10]

Hi all.

My wife will be applying for her spouse visa as a Malaysian entering the UK to join her husband (i.e., me). We have been in the process of selling our house to meet the financial requirement. She stayed with me and our son in the UK under a tourist visa for the past 5 months. She went back to Malaysia to tie things up with the house sale, but sadly the process is incredibly slow and it's going to be another 6 months (at least) until we get it done.

I have two questions which I hope the members can help me with:

1) Does my wife have to apply from Malaysia, or can she apply from, and stay with, friends in Europe (namely Austria) while her application is being processed?

2) She intends to come back to the UK under a new 6 months tourist visa. She will have all of the application documentation with her to prove her intent to leave the country and complete her application. I couldn't find written anywhere that this is unacceptable. Have any members experienced any problems with spouses coming in and out of the UK?

Thanks in advance for all replies received.

Phil

[Lucapooka]

1. She can only apply in a country for which she has nationality or a residence permit other than that of a visitor. So, in her case she can only apply in Malaysia.
2. Yes, it's possible but clearly she is effectively living in the UK by spending the majority of her time there with her family and her ties to homeland are weak, so they would be within their rights and guidelines to refuse a second entry so soon after her previous stay. All you can do is apply and see what happens. I think the worst that could happen is her entry would be permitted but with a warning about future visits based on what I have already indicated. Or a curtailed visit period of less than six months.

[limey10]

Thanks Lucapooka

I entirely hear what you are saying.

When she went back to Malaysia 5 weeks ago, I questioned one of the immigration guys and was told as long as she had positive documentation that showed an intent to leave the country to complete her visa application, she would be allowed entry on a tourist visa.

Do you know if it is written down anywhere that visitors can not enter / exit in this fashion; baring in mind that she will not break the conditions of the visa (i.e., she will not overstay, work, claim benefits etc.)?

Thanks, Phil

[Lucapooka]

https://www.gov.uk/government/uploads/s ... 2.0EXT.pdf

Taken from page 14

Frequency and duration of visits
Visitors cannot live in the UK on a continuous basis, even if they leave the UK for short periods to avoid overstaying.

There is no specific limit on the number of visits an individual can make to the UK, such as a definitive rule which states a visitor can only remain in the UK for ‘6 months in a 12 month period’. Visitors, however, must not be living in the UK for extended periods because of frequent, successive visits. For example, where an individual:

-spends five or six months in the UK during a visit and returns after a short break in their home country for a further five or six months, or
-is living in the UK for successive short periods and breaking this by leaving for a couple of days, for example, someone living in the UK during the week and breaking this by leaving the UK at the weekends.

This could amount to genuine residence. However this is not a hard and fast rule and you must consider the circumstances of each case on an individual basis.

Assessing residence through successive visits
You must consider the following factors to assess whether the visitor is residing in the UK because of frequent, successive visits:

The purpose of the visit and intended length of stay stated on the visitor’s visa application form or to the Border Force officer.
The number of visits made over the past year (rolling 12 month period), including:
-the length of stay on each occasion
-the time elapsed since the last visit, and
-whether this amounts to the individual spending more time in the UK than in their home country.
The purpose of return trips to the visitor’s home country and whether this is used only to be readmitted to the UK.
The links they have with their home country such as:
-main residence
-employment
-family or other long term commitments
-where they are registered for tax purposes.
Evidence the UK is their main place of residence such as:
-Have they registered with a general practitioner (GP)?
-Are their children in UK schools?
Previous applications made:
Are they using the visitor route to avoid the rules in place for family migrants joining British or settled persons in the UK?
For example, if the visitor has previously been refused under the family rules and subsequently wants to enter as a visitor.