Serious help needed - Bizarre situation

[almondo]

Hi guys - first post.

Need some help and advice here please.

Im a British Citizen married to a South African. She has 3 children from a previous marriage plus we have one baby of our own.

We married in 2003 in Cape Town and she returned to the UK with me and her kids on a spouse Visa which was valid for 2 years.

Anyway, my wife fell pregnant and we had a little boy back in December 2004. We decided last year we would try and start a new life in South Africa since i was given some good work opportunities (which unfortunaltey never materialised) and we decided to leave just before her Visa expired (literally days) but we never applied for it to be upgraded, probably a silly mistake.

Anyway, the situation is this. I have used all of our savings making sure we could survive in South Africa. My wife and 4 kids are now staying with her parents in Cape Town whilst i returned to the UK to try and find work and a place for us to stay. This is taking a considerably long time and have decided to claim JSA for the time being. Im concerned and confused about what Visa my wife has to apply for. Both the home office and Visa services are telling me various types of Visa, from ILR to reapplying for another 2 year spouse visa (even though weve been married for three years?). So not only do i have that confusion since no one can give me a straight answer, but Ive also been advised that her Visa might get rejected because im claiming benefits and living at my sisters? So what happens now?





So

[Chess]

Sort your finances out first. get a job and get your own place to live and then arrange for family to come over..

if by the time she applies for her visa you have been married for 4 years; then she can apply for Indefinate Leave to enter (aka settlemnt visa)

[Kayalami]

almondo,

It would appear that you know you should have applied for your spouse's ILR prior to the departure. As that is water under the bridge your only option is to obtain her another 2 year (probationary period) spouse visa.

The 4 year requirement that Chess comments on applies where the couple have resided outside the UK for at least this period and are now returning to the UK. Parliament saw it fit that it would be unfair to put a long term married couple (one of whom is settled in the UK) that have been resident outside the UK and are now returning back through a probationary period of 2 years.

IMHO that you are on JSA means your spouse's chance of obtaining a spousal visa are next to none. You need to come off JSA and get several months income under your belt - might be worth taking any job of course within some reason. You need to appreciate that the ECO will need to see evidence you can maintain and accomodate family of 6. Technically its 5 as the youngest is a British Citizen and does not require entry clearance - I presume you have obtained a British passport for him/her. If not get one. The ECO will wan't to see a decent bank statement and proof of appropriate sized accomodation. To speed things up could you get some help from your family (parents)? It will be worth keeping records of any contact you have with your family e.g. e-mails, telephone calls, any financial transactions e.g. wire transfers etc in case the ECO raises the issue of whether your marriage is still subsisting (I doubt this will be an issue but no harm in covering all bases).

Needless to say when the spouse visa is issued this time get the ILR by application 28 days before its (spouse visa) expiry.

Sorry that is not the news you may want to hear.

[almondo]

Hi guys, yes, although at the moment i have nothing in my bank account i do intend on getting some cash in there as soon as possible.
Our son is a British passport holder aswell, so unsure how that will affect her application.
So let me get this straight, she needs to apply for another 2 year basic marriage / spouse visa, which is not permanent residence, and therefore is cheaper? Is that right?
I was also thinking of a 3 bedroomed house. Do you think thats suitable?

[Kayalami]

Our son is a British passport holder aswell, so unsure how that will affect her application.

As a british citizen your son does not require entry clearance so it could be the ECO takes the view there is one less person to be concerned about on the funds issue - not a major aspect though so I wouldn't really be too hang up with this.

So let me get this straight, she needs to apply for another 2 year basic marriage / spouse visa, which is not permanent residence, and therefore is cheaper? Is that right?

At the risk of repeating myself and with respect she is only eligible for a 2 year visa as things stand and not a permanent resident visa (read my prior post again and the reason for this is clearly stated). The issue of cost is moot.

I was also thinking of a 3 bedroomed house. Do you think thats suitable?

ECO wants to make sure there is no overcrowding. Time for you to do some leg work - search for posts in the family forum with suitable title's e.g. 'spouse visa' or for those by poster 'MarieB' or 'ilm' which should have details of room sizes/ numbers that meet the accomodation requirement.

[almondo]

Our son is a British passport holder aswell, so unsure how that will affect her application.

As a british citizen your son does not require entry clearance so it could be the ECO takes the view there is one less person to be concerned about on the funds issue - not a major aspect though so I wouldn't really be too hang up with this.

So let me get this straight, she needs to apply for another 2 year basic marriage / spouse visa, which is not permanent residence, and therefore is cheaper? Is that right?

At the risk of repeating myself and with respect she is only eligible for a 2 year visa as things stand and not a permanent resident visa (read my prior post again and the reason for this is clearly stated). The issue of cost is moot.

I was also thinking of a 3 bedroomed house. Do you think thats suitable?

ECO wants to make sure there is no overcrowding. Time for you to do some leg work - search for posts in the family forum with suitable title's e.g. 'spouse visa' or for those by poster 'MarieB' or 'ilm' which should have details of room sizes/ numbers that meet the accomodation requirement.

Thanks.

My initial question though with regards to our son is not whther or not he requires entry clearance, because obviously he doesnt, but whether or not that has any influence in terms of her being granted a new visa. Obviously, my son is entitled to be here with his family isnt he?

[Kayalami]

I don't get your point but I presume you are asking whether the fact that your son is a BC should influence the visa officer to grant the mother a UK visa without her needing to meet the rules. NO is the answer. Your son has the right to be with his family is correct but it is also correct that this does not have to be necessarily in the UK. Sorry.

[almondo]

I don't get your point but I presume you are asking whether the fact that your son is a BC should influence the visa officer to grant the mother a UK visa without her needing to meet the rules.
NO is the answer. Your son has the right to be with his family is correct but it is also correct that this does not have to be necessarily in the UK. Sorry.

So the government can forcilby serperate a family because of financial hardship for a father and a son that have a right to abode in the UK, our country of birth, our nationality? From what i understand thats actually against the law. my human right and my sons human right would be violated. thankfully there is some benefit to being part of Europe!!!

Cheers

[JAJ]

So the government can forcilby serperate a family because of financial hardship for a father and a son that have a right to abode in the UK, our country of birth, our nationality?

Do British citizens have an unqualified right to bring non-British spouses to the United Kingdom. No, sorry they don't.

However you can bring a spouse to the United Kingdom provided that person meets the requirements of the Immigration Rules. Meeting these requirements is not generally a problem.

From what i understand thats actually against the law. my human right and my sons human right would be violated. thankfully there is some benefit to being part of Europe!!!

It's not against the law - it is the law.

You would be better advised to focus your energy meeting the Immigration Rules, not complaining about them.