Applying for Marriage Visa for my wife

[Chinahand46]

I am a British citizen by birth who has lived & worked overseas for more than 30 years though I still maintain a house in the UK and my index-linked final salary related pension is paid into our joint UK bank account.

I married a Chinese lady in Dubai in April 2007 since when we have continually lived together. I took early retirement in November 2009 since when we have lived in a home that we purchased in China.

Due to medical problems following a faulty hip replacement and after much discussion with my wife we have concluded that it is no longer possible to do the many things we had hoped to do together in China after my retirement. In consequence we have agreed that it would be best if we went to live in the UK where I can have access to better medical treatment ( I have medical insurance) and we will be able to purchase a car with modified controls which will enable us to be mobile. We therefore wish to obtain a Marriage/Spouses Visa to enable her to live with me in the UK with the intention of us moving there in May nexy year.

My wife can speak English at casual conversation level but is having difficulty in reading and writing and all of the information I have found so far, including that given here, indicates that, as provided for by Article 281 of the Immigration Act, my wife needs to be able to speak, read & write English to an acceptable standard and obtain a KET Certificate.

However, Article 282(c) appears to provide for circumstances where a 2 year Marriage visa can be obtained "in the case of a person who meets the requirement in paragraph 281(i)(b)(i), but not the requirement in paragraph 281(i)(b)(ii) to have sufficient knowledge of the English language and about life in the United Kingdom, be admitted for an initial period not exceeding 27 months, in all cases provided the Immigration Officer is satisfied that each of the relevant requirements of paragraph 281 is met.".

Although I am a UK passport holder and have right of abode I am, however, unsure of the meaning of the term "present and settled in the UK" and what the implications are of my long term overseas residence.

Firstly is my understanding of 282(c) correct and, if so, what is the best way to proceed with our visa application ?

Apologies if this question is a bit lengthy but I believe a better answer will come if all of the relevant facts are set out.

[Lucapooka]

Because you have been married for four or more years and have been living outside the UK, you are eligible for permanent settlement immediately. This is called Indefinite Leave to Enter. However, this is also contingent on having passed the KOL test which is only available from inside the UK. Therefore, you can't be granted ILE but, as a concession to your long marriage, you will be given a two year temporary visa that allows you to enter the UK, take the KOL, and then apply for ILR (Indefinite Leave to Remain) without the need to wait the two year period that immigrant partners are usually required to undergo.

The KOL test is a specific test for permanent settlement and none of the other tests for temporary settlement are suitable for this. The KET (or another from the list) is necessary for her initial application.

Additionally, from April next year, this may change so applying earlier than your current intentions may be beneficial.

[Chinahand46]

Thanks for your quick reply Lucapooka.

I'm not sure what you mean in your 2nd paragraph though when you say "The KET (or another from the list) is necessary for her initial application."

Do you mean the application we are about to make under 282(c) or the later application for ILE.

[Lucapooka]

The KET (or any other from the list) for the visa application under 282, then the KOL for the ILR application under 287. ILR is the same as ILE; merely that one is granted outside the UK and the other inside the UK.

[John]

Trevor, just to correct one little aspect of the post of Lucapooka, the spouse visa, when issued outside the UK, will be for 27 months, not 2 years.

But it is quite correct to point out that as the two of you have been married for at least 4 years, and lived together outside the UK, a special endorsement "KOL REQ" should be applied to your wife's spouse visa. But given it is comparatively rare, when the application is submitted it is worth saying in a covering letter that such endorsement is due.

But in order to get the spouse visa your wife will need to pass an English test, but that test is at quite a low basic level.

When see gets to the UK she should either commence studying for the Life in the UK Citizenship test, or get signed onto a combined ESOL/Citizenship course. Once she has either a pass certificate from the test, or a completion certificate from the course, she can then apply for ILR, thanks to the "KOL REQ" endorsement, without needing to wait until near the end of her 27-month spouse visa.

[Chinahand46]

Thanks John but I'm still confused.

Unless I'm missing something Article 282(c) provides for a 27 month visa to be given even though the applicant has not passed the KET. My wife's spoken English is fine but I seriously doubt that she would, at this time, pass the KET tests for reading and writing.

[Lucapooka]

Yes, but 282(c) is also dependent on 281, where the english language requirement is clearly stated.

282(c)[...] in all cases provided the Immigration Officer is satisfied that each of the relevant requirements of paragraph 281 is met.

[Chinahand46]

Yes but -

para. 282 (c) specifically states that “in the case of a person who meets the requirement in paragraph 281(i)(b)(i),

- (i.e. that the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom …… and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom)

but not the requirement in paragraph 281(i)(b)(ii) to have sufficient knowledge of the English language and about life in the United Kingdom, be admitted for an initial period not exceeding 27 months, in all cases provided the Immigration Officer is satisfied that each of the relevant requirements of paragraph 281 is met.”

I take this to mean that the requirements of 281(i)(b)(ii) are not relevant since they are specifically excluded.

Or am I still missing something here.

[Lucapooka]

Or am I still missing something here. :?:

Yes, the part about the requirements for 281 also being met. Particularly the part where the applicant needs to have passed an English test:

_ __(ii) the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant's name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference)

[Chinahand46]

It actually says the relevant requirements of 281 and I do not see that 281(i)(b)(ii) can still be relevant since it is specifically excluded from the requirements.

[Lucapooka]

Applicants can fall under 281(a) or 281(b). However they only fall under 281(b)(i) if they also meet the requirements for (b)(ii), which you don't. Therefore you then subsequenly fall under 282(c) which requires that you meet the requirements in 281(a) to have passed and English language test.

I've said about all I can in this discussion now. If you want to go ahead and apply without an approved A1 English pass then that is your prerogative.

[Chinahand46]

I'm not a lawyer but I have spent the past 40 years dealing with contracts and the law and it just doesn't seem logical for 281(i)(b)(ii) to have precedence over 282(c) when 282(c) provides a specific vehicle for obtaining a spouse visa without meeting the requirements of 281(i)(b)(ii).

What else would be the point of 282(c)

[Greenie]

Thanks John but I'm still confused.

Unless I'm missing something Article 282(c) provides for a 27 month visa to be given even though the applicant has not passed the KET. My wife's spoken English is fine but I seriously doubt that she would, at this time, pass the KET tests for reading and writing.

she doesn't need to pass an English test in reading and writing, just speaking and listening.

Not going to get into the other argument - I think Lucapooka and John have explained it clearly.

[John]

Trevor, you are confusing two separate and different tests, namely, the English test required to get the spouse visa in the first place, and the Life or the UK Citizenship test (or ESOL/Citizenship course) that your wife will need to take in the UK in order to convert the spouse visa into ILR.

[Chinahand46]

Having looked at the sample KET tests available on line they certainly include multiple choice reading and writing tests. If, as Greenie has suggested, she will only need to take English 'Speaking & Listening' tests then that will not be a problem. How can I be sure of this though ?

John, I am not confusing the 2 tests and am aware of the requirements of the 'Life in the UK' tests having also downloaded several test samples.

[pennylessinindia]

SET 17.5.1 Does the applicant need to pass the test overall?

No the applicant only needs to pass the speaking and listening elements at the A1 level they do not need to pass the reading and writing parts.

[Chinahand46]

Thanks for that S.E.T. reference pennyless. I've now found it on the UK Border Agency web site.

[Chinahand46]

Thanks for all your help and opinions guys.

I am now confident that, regardless of 282(c), my wife can pass the English speaking & listening test to get her visa.

[John]

John, I am not confusing the 2 tests and am aware of the requirements of the 'Life in the UK' tests having also downloaded several test samples.

I am now confident that, regardless of 282(c), my wife can pass the English speaking & listening test to get her visa.

If you are not confusing the two types of test, I do not understand why you refer to 282(c), the words of yours I have highlighted.

[Chinahand46]

John,

I think we may have ended up at cross purposes.

I was simply saying that if 282(c) is not a viable route to obtain my wife's visa she will be able to pass the speaking and listening test and will therefore comply with 281(i)(a)(ii).

However, although I am British by birth and therefore have Right of Abode, I am not actually 'present and settled in the UK' at this time and I therefore believe my wife's application needs to be made under 281(b)(i).

Unfortunately 281(b)(ii) requires that she has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom. Hence my view that 282(c) could be used to override the requirements of 281(b)(ii) though I'm still not sure how to overcome the 'present and settled' requirement of 282.

As you are obviously aware, the Life in UK test does require both reading and writing skills and is therefore different from the speaking and listening test.

[John]

I was simply saying that if 282(c) is not a viable route to obtain my wife's visa she will be able to pass the speaking and listening test and will therefore comply with 281(i)(a)(ii).

I am still of the opinion, rightly or wrongly, that you are still confusing the two types of test.

Your wife's circumstances clearly fit 282(c). That is she has been married to you and lived with you outside the UK for at least 4 years, but has not yet passed the Life in the UK Citizenship test (or completed a combined ESOL/Citizenship course).

Accordingly the visa to be issued will be for 27 months, but should have the "KOL REQ" endorsement, so that, a timing difference, she can apply for ILR as soon as she has the test pass certificate or the course completion certificate, without having to wait until near the end of the 27 month period.

Separate requirement .... 281(i)(a)(ii) .... pass a speaking and listening English test .... and without a pass certificate from that test the visa cannot even be applied for.

As regards "present and settled", as long as it is clear that you will be moving to the UK with your wife, it will not be a problem. You will need to make that clear in the papers submitted with the visa application. Go to this UKBA document and in particular read the 2nd bullet point in SET3.4, and the definition of "settled" which follows, and the paragraph which starts "Sponsors may .....".

[Chinahand46]

Hi again John,

I think we are on the same wave-length now and thank you for the pointer to SET 3.5 which has eased my mind on the matter.

I am now in the process of identifying where, in China, my wife can obtain her English Speaking & Listening Certificate. It seems that there are only 3 'open' centres, the nearest being in Beijing which is over 1,000 miles away. Looks like we will be doing some travelling shortly.

[John]

I am now in the process of identifying where, in China, my wife can obtain her English Speaking & Listening Certificate. It seems that there are only 3 'open' centres, the nearest being in Beijing which is over 1,000 miles away. Looks like we will be doing some travelling shortly

From this distance I cannot possibly comment upon the location of test centres in China, but that certainly that does sound like quite a trek! What is the prospective plan? Fly to Beijing then take the test, then a day or two later make the visa application at the Visa Application Centre and do the biometrics?

You clearly want to avoid two long journeys, one to do the test, and the other to do the biometrics.

This assumes the pass certificate from the English test is handed to a successful candidate almost immediately.

Or where to make the visa application :-

As part of your application, you will need to visit one of our visa application centres in Beijing, Wuhan, Shenyang, Jinan, Chongqing, Fuzhou, Chengdu, Shanghai, Hangzhou, Nanjing, Guangzhou or Shenzhen.

-: is one of those other cities better to make the visa application?

[Chinahand46]

Hi John,

It very much depends on when we can get an appointment for the test and if we have all of the other documentation in place at that time. Quite a few documents have to be sent out from UK and may well be delayed by the vagaries of the Christmas post.

If we cannot complete everything in one trip then we will probably make the application in Guangzhou which is only a 45 minute flight away compared to 3 hours to Beijing.

[John]

Might it be worth trying to contact the VAC in Guangzhou to see if they are aware of an English test centre in their city? It seems strange that there is a VAC there, but prospective applicants need to go elsewhere to take an English test.

Contact details on this UKBA webpage.