Wife visa after overstaying for 2 years - wife of a settled person

[jrmaciel]

Hi everybody!

I'm starting a new topic to share my experience in the case mine and my wife's hoping to help some of you. Of course any advice and thoughts about the case are welcome.
This forum has been a GREAT help for the both of us. As I only found one topic a bit similar that was clarifying and encouraging for us, I really hope this one comes handy too. I'll update the status as soon as thing roll.

Some context:
- We're both non-EU.
- I have acquired permanent residence in the UK on January/2019.
- She arrived in the UK on 07/2016 with a tourist visa (6 months), we then met, totally fall in love and she overstayed.
- We started living together in 07/2017 (she was living with a family friend until then).
- We got married in 06/18 by proxy. Our family got married for us in our home country, but we did a celebration in London with around 30 friends.
- She left the UK in 03/2019 (I know!) voluntarily and by own expenses. As I was only able to get the PR in 2019, it would be way to long for us to stay apart from each other.

Now we're applying for her visa as wife of a settled person. We did the online application on the 28/02 and she left the UK in 03/19, some days ago, (no stamp on passport). She's going to do the biometrics on the 19/03.

We're writing a cover letter telling the truth, of course! All as explained exactly as above and also that she didn't work during this time, just did some workshops and informal courses, I am earning enough money for the both of us thank God. She also had some savings and some of the courses she did, her parents paied for her. She have never used the NHS (even I barely did) or any other public service, and I have never claimed benefits, never went to court, never claimed council tax reduction, etc.

My situation is that I opened my company in November 2018 and I'm the sole director. Until then I was self-employed and did 31k in the past financial year. This tax year the prospect is around 41k. I started working as self-employed since 6 months after I arrive in the UK and opened my company, what I think shows interest and that I want to be as independent and self sufficient as I can.

We're also explaining in the letter that we are applying for her visa now, that's the sooner that we could. IF we could, we would have applied earlier. Of course it doesn't endorses the fact that she overstayed two years, and I'm not here doing so, but is painful only to think about staying 2 years apart. We're going to stay 2 months and is painful enough.

In the process we're sending:
- Her expired passport (with the stamp when she first entered the UK)
- Her current passport
- 2 passport sized colour photographs
- Copy of my passport certified by the Post Office
- Copy of my Biometric Residence Permit card certified by the Post Office
- Marriage certificate + sworn translation
- Letter from estate agency confirming they happy for us to live at the same flat
- Trinity College London certificate for A1 test (with distinction)
- Copy of Certificate of Incorporation of my limited company
- HMRC Tax return for the tax year 2017-2018
- 2 last (and only) salary payment submission from HMRC
- 2 last (and only) of my dividend vouchers
- 6 months bank statements of my business account
- 6 months bank statement of my personal account (stamped by Lloyds)
- 3 months statement of my savings account
- Council tax bill for 2018/2019
- 7 of her minor courses/workshops certificates (including some Master/teacher level)
- Her e-ticket London/our home country/London
- My e-ticket London/our home country/London
- Pictures of me and her (around 20, travelling around the UK, at the wedding ceremony, with friends and with her parents, when they came to visit us)

I'm visiting my family in may/2019 when we are also meeting again (counting down already!) and we then get back to the UK together in June.

In the Visa Application Centre (VFSGlobal) we're getting the priority service.

Any thoughts about this? We're really confident, but do you guys feel the same way?
Any other recommendations of any other thing I should do or say?

I sincerely hope they grant this basic right of a family. We've tried to do things on the most right way possible.

For those of you in a similar situation, I hope this topic can help and I am sending good energy to all of you.
I'll update soon.

Thanks a lot for reading, and for any comments.

All the best!

[Alam-]

If it was me, I would not include her workshops/ informal courses transcripts and would not mention in the cover letter. Don't lie, just don't include in the details and skip this part unless it is already in home office's record, it might go against her. Good luck

[jrmaciel]

If it was me, I would not include her workshops/ informal courses transcripts and would not mention in the cover letter. Don't lie, just don't include in the details and skip this part unless it is already in home office's record, it might go against her. Good luck

Right, thanks a lot! Will consider this advice.
If anyone have other thoughts in the matter or past experiences, is more than welcome to share.

Cheers!

[jrmaciel]

Hey you all!
Any other thoughts regarding this process? Do you think we have good chance of having it approved?

I'm now trying to deal with VFS Global and their terrible website. When trying to buy the priority service, it comes up with a different GWF reference every time and doesn't allow me to change and put the one I've got n the application.
:/

Thank you!

[Frontier Mole]

Are you getting formally married at some point because a proxy wedding is not acceptable as marriage to the Home Office.
Worse still when the proxy marriage took place both of you were in the UK - that is a nonsense scenario.

Until you are formally married you can not apply for a spouse visa, you could be considered under unmarried partner route although I am seeing issues with proving that considering the evidence you would need - documents in joint name etc as no doubt she kept herself off the radar.

The other issue for unmarried route is that you have to be living together akin to marriage for a minimum of two years - looking at your dates you do not qualify.

You need to get married!!!

[jrmaciel]

Are you getting formally married at some point because a proxy wedding is not acceptable as marriage to the Home Office.
Worse still when the proxy marriage took place both of you were in the UK - that is a nonsense scenario.

Until you are formally married you can not apply for a spouse visa, you could be considered under unmarried partner route although I am seeing issues with proving that considering the evidence you would need - documents in joint name etc as no doubt she kept herself off the radar.

The other issue for unmarried route is that you have to be living together akin to marriage for a minimum of two years - looking at your dates you do not qualify.

You need to get married!!!

HI there!
Thanks for your response.
In this particular case the proxy marriage is recognised as under the English common law, if a proxy marriage is valid by the law of the place where the marriage was celebrated (the lex loci celebrationis) then it will be recognised in England.

My first marriage was also by proxy (I was at the ceremony, my now ex-wife wasn't) and it was recognised by the home office as spouse.

Thank you!

[CR001]

My first marriage was also by proxy (I was at the ceremony, my now ex-wife wasn't) and it was recognised by the home office as spouse.

This is very different to BOTH of you now being in the UK and marrying 'by proxy abroad' when neither of you were abroad.

[jrmaciel]

My first marriage was also by proxy (I was at the ceremony, my now ex-wife wasn't) and it was recognised by the home office as spouse.

This is very different to BOTH of you now being in the UK and marrying 'by proxy abroad' when neither of you were abroad.

Yes, thank you for pointing that out.
Totally understand and agree with that, but please bear in mind that me and her are nationals from the country where we got married by proxy.

There's a similar case some years ago, of when the two parts domicile was the UK: http://www.bailii.org/uk/cases/UKIAT/2008/00080.html

In the Government website it also says that this: "Your overseas marriage or civil partnership will be recognised in the UK if you follow the correct process according to local law - you will not have to register it in the UK."
That is, different from the UK, in our country a proxy marriage has the same effect as if one or both parts were at the ceremony, what means this is a fully legal marriage. The marriage certificate is also the same, not even a observation stating it was a proxy marriage.

I am now aware I'll have to point this out in the cover letter. =) Thanks!

Any other thoughts about the decision too?

Cheers!

[Frontier Mole]

It is a lower tribunal case and is neither binding nor persuasive. The caseworker instructions do not allow for a proxy marriage to be considered when both parties are residents at the time in the UK.

I suggest you prepare for a visa refusal....

[jrmaciel]

Got it, thank you!

Let's say this is not a problem (I'll keep you posted) and they accept the marriage certificate, any other advice? Do you guys believe we have good chances of getting an approval?

Thanks again for pointing this one out.

Cheers!

[Casa]

I suggest you prepare for a visa refusal....

[ALKB]

Got it, thank you!

Let's say this is not a problem (I'll keep you posted) and they accept the marriage certificate, any other advice? Do you guys believe we have good chances of getting an approval?

Thanks again for pointing this one out.

Cheers!

As the director of a limited company you need to show accounts, statements, etc. for a full financial year, as far as I know. Your previous self-employment is no longer 'ongoing' as I understand it.

Somebody who has more knowledge about meeting the financial requirement under these circumstances please correct me if I am wrong but I think you might face issues meeting the requirements.

[jrmaciel]

As the director of a limited company you need to show accounts, statements, etc. for a full financial year, as far as I know. Your previous self-employment is no longer 'ongoing' as I understand it.

Somebody who has more knowledge about meeting the financial requirement under these circumstances please correct me if I am wrong but I think you might face issues meeting the requirements.

Thank you for answering. =) Yeah, I thought about that too.
I haven't de-registered with HMRC, and I'm still getting paid by some clients into my personal bank account.

After reading a thousand times (at least it feels like it) I understand I'll rely on my self-employment rather than my company, as I have the self-assessment return for the last full financial year. As it says in paragraph 9.3.3.:

The evidence submitted must cover the relevant financial year(s) most recently ended

Also I couldn't use a company tax return if I had one because it says:

9.3.4. If a person has different financial years, e.g. because they are both self-employed and a director or other employee (or both) of a specified limited company, their income from the self-assessment tax return and Company Tax Return financial years cannot be combined to meet the financial requirement.

I'll then put it down as sole trader as I am (1) still registered as such with HRMC and (2) getting paid by some clients into my personal bank account. I can declare this money this way for this current tax year, no problem.

So would it be correct to think that in the Appendix 2 form, I should make clear I'm in an ongoing self-employment as sole trader; use category F checking the box that says that I meet the financial requirement; and in section 3D I'll use the details of the company as an additional source of income?

Thank you again!
Really hope it will help someone in the same confusion.
Cheers!

[Alam-]

Hey you all!
Any other thoughts regarding this process? Do you think we have good chance of having it approved?

I'm now trying to deal with VFS Global and their terrible website. When trying to buy the priority service, it comes up with a different GWF reference every time and doesn't allow me to change and put the one I've got n the application.
:/

Thank you!

Just login to the vfs global website with your GWF number and purchase priority services from there.

[jrmaciel]

Just login to the vfs global website with your GWF number and purchase priority services from there.

Not being able to do so.
To login it asks to register a new account using my e-mail. There's a tab "My applications" but when I put the GWF number it says "data not found".

Even worse: if I click "home", fill the form and try to add the services on the next step it comes with a GWF number filled already and it doesn't allow me to change this number. Even funnier: if I refresh the page a new GWF number comes up.

I waiting to hear something back from them. =/

Any opinion regarding the rest of the case is also welcome.
Thank you!

[jrmaciel]

Quick update about the proxy marriage, that hope is going to be helpful to other members:

I've contacted an solicitor specialist in immigration from our country to the UK. She confirmed the proxy marriage is legal and recognised because it is legal and recognised in our country.
In the marriage certificate it doesn't have any note whatsoever stating that it was a proxy marriage, which also shows it has the same legal status.

I'm researching more about the financial requirement, but please feel free to comment if you've been in the same situation. Mine is:

Sole trader since 08/2014
In November/2018 incorporated a limited company that started trading in December, and appointed myself as director and employer. Since then, the company is the main canal on how I earn money. So I have dividends voucher and payslips for 2 months.
I am still registered as sole trader with HMRC with some clients still paying to my personal account.

So I'm relying on category F and sending my self-assessment for last full tax year (2017/18). Now, after that I'm sending my bank statements for the last 6 months that show both self-employment and company earnings.
This current tax year I'm doing better the last, so I think I just need them to understand this situation, is this right?

Thank you so so much!

[seagul]

Proxy and telephone marriage
13.1 The law of the United Kingdom does not allow for marriages to be contracted in this
country either:
• with one of the parties represented by an appointed proxy; or
• where the proceedings are conducted over the telephone
13.2 However, the laws of certain other countries can recognise either form of marriage
as valid where they are contracted in that country. Where the local law does permit
marriage either by proxy or telephone and the proceedings of any particular marriage
appear to satisfy the requirements of that law then, in accordance with the normal rules
on recognition of foreign marriages (see paragraph 2, above), the marriage should be treated as valid for all purposes of United Kingdom law. Guidance on the local validity of foreign proxy and telephone marriages may be sought from INPD(L) (EOP2).

[jrmaciel]

\o/ Thanks seagul! That settles it.
I'll sleep better this night, for sure. Cheers!

[jrmaciel]

After reading a thousand times (at least it feels like it) I understand I'll rely on my self-employment rather than my company, as I have the self-assessment return for the last full financial year. As it says in paragraph 9.3.3.:

The evidence submitted must cover the relevant financial year(s) most recently ended

Also I couldn't use a company tax return if I had one because it says:

9.3.4. If a person has different financial years, e.g. because they are both self-employed and a director or other employee (or both) of a specified limited company, their income from the self-assessment tax return and Company Tax Return financial years cannot be combined to meet the financial requirement.

I'll then put it down as sole trader as I am (1) still registered as such with HRMC and (2) getting paid by some clients into my personal bank account. I can declare this money this way for this current tax year, no problem.

So would it be correct to think that in the Appendix 2 form, I should make clear I'm in an ongoing self-employment as sole trader; use category F checking the box that says that I meet the financial requirement; and in section 3D I'll use the details of the company as an additional source of income?

Thank you again!
Really hope it will help someone in the same confusion.
Cheers!

Do you guys agree with this regarding filling the form VAF4A of financial requirement?
Or there's no need of filling 3D as everything can be said on 3C and 3D contemplates "non-employment"?

Cheers!

[CR001]

The financial requirement is completed on the paper form, Appendix 2.

[jrmaciel]

The financial requirement is completed on the paper form, Appendix 2.

Yeah sorry, that is what I meant.

But my question is:

- I'm a Sole trader since 08/2014
- In November/2018 incorporated a limited company that started trading in December, and appointed myself as director and employer. Since then, the company is the main canal on how I earn money. So I have dividends voucher and payslips for 2 months.
- I am still registered as sole trader with HMRC with some clients still paying to my personal account.

So can I rely on category F and send my self-assessment for last full tax year (2017/18) as requested? And also, after that, I'm sending my bank statements for the last 6 months that show both self-employment and company earnings. This current tax year I'm doing better the last, so I think I just need them to understand this situation, is this right?

So category F, still self-employed and all. But should I put the income of the current tax year in the form somewhere? 3D doesn't seem right to me as it says "non-employment".

Thanks!

[jrmaciel]

Update about this process:
We're writing a cover letter explaining the figures:
- Self-assessment 2017/2018 (last full financial year)
- Forecast of self-assessment 2018/2019 (current financial year) of £ 34k
- Plus company net profit of £ 6,5k

On Appendix 2 form, I just filled session 3C with details of both self-employment and company, with a note to refer to cover letter for full details to be considered.

Any further thoughts are welcome.

Thanks!

[jrmaciel]

Just a quick update on this process:
- 18/03: Biometrics taken in the VAC Sao Paulo (VFS Global) and documents scanned.
Priority service paid (although it might take more than 7 weeks due to the delicate situation)

- 05/04: E-mail received stating "application is currently being prepared for consideration by an Entry Clearance Officer.

[jrmaciel]

Hi everyone!

As it was mentioned in this thread that this could happen, the visa has been refused - but we can appeal.

The reason is regarding the financial requirement due to the fact that I opened the company and that the company doesn't have all the documents they ask for - obviously.

The letter says:

Companies House shows [company name] was incorporated in November 2018 therefore the business has not been trading as a limited company for a full financial year at the time of your application. The evidence listed above must be provided for the last full financial year of the business. These documents are specified in the Immigration Rules in Appendix FM-SE and must be provided.

Your application has been refused due to insufficient documents relating to your financial
requirement. Although a degree of evidential flexibility can be used as part of the
consideration process, I am not satisfied that it would be suitable on this occasion. This is
because the issue would not be resolved through the use of evidential flexibility.

After sending the application the self-employment financial year finished and I've done my self-assessment and this year's income was £ 34 considering self-employment plus salaries and dividends. But we've done the application at that point so I couldn't use it anyway.

It's important so say I've been self-employed with an income of 30k in 17/18. Now it was £ 34 personal income plus £ 6k company profit. I can't see any problem in that, but how do I explain this? That is the same nature of business, the only thing that changed was how I am actually trading.

Should I scrap the company and focus only on my self-employment?

Any tips and considerations are more than welcome as we're planning to appeal as soon as we can.

Thanks in advance to everyone even reading it!

[jrmaciel]

Sorry guys, I was reading and apparently they can refuse a visa for this... My income is higher now if I consider the company (is the same nature of business, justa different way to operate), and even the ongoing self-employment that they clearly don't take into consideration.

What we are thinking now is instead of appealing:
- Apply for a new visa for December and pay for the new application
- Fly to the UK together in June (I'll be with her)
- Get a tourist visa on arrival (any problems here? Got the visa refused, overstayed, but we'll have a return ticket, fresh application with £ 1.5k spent, and wouldn't risk another overstaying clearly).
- In December when I can get the CT600 and all the documents they want, she applies for the new visa in our home country.

Any thoughts at all?