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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7590
Experience:  UK Lawyer holding practising certficate for England & Wales.
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My wife is Thai, we were married in Thailand in Jan 2012. We

Resolved Question:

My wife is Thai, we were married in Thailand in Jan 2012. We returned to the UK in March and now her tourist visa has expired. I want her to stay here with me. I work independently and although she is not employed she helps me. I employ 4 others. What can I do?
Submitted: 3 years ago.
Category: Immigration Law
Expert:  Thomas replied 3 years ago.
Hi,

What is your nationality please?

Are you saying that she has remained in the UK past the expiry of her
visa?

If so, are there any mitigating circumstances for the overstay?

Do you meet the financial criteria to apply for a spouse visa?

Tom
Customer: replied 3 years ago.

I am British born and bred.


Yes she has remained here past the visa expiration date.


 


Mitigating circumstances - I have a very bad back and she helps with that, nothing else.


 


I do not know the financial criteria but feel that I would qualify.


 


Edward

Expert:  Thomas replied 3 years ago.
Hi Edward

Are you self employed?

If so, was your income for the last full financial year above £18,600.00?

Kind regards,

Tom
Customer: replied 3 years ago.

I am starting a business, a cosmetics shop, and have invested £25,000 to £40,000 in this, which I can substantiate. I employ 4 staff. Income as yet is nil, as I started promotions only this week. I estimate my annual income forward will be £25,000 after costs and tax etc.


 


I have just over £18,600 in the bank as well.


 


Edward

Expert:  Thomas replied 3 years ago.
Hi Edward

Thanks for your patience.

There are a couple of problems. Both of which are considerable.

The overstay of her visitor’s visa is one. This means that the UKBA has a general ground to refuse an application that she makes from within the UK for all types of visas. They would almost certainly reject any application that she submitted from within the UK. I am afraid that they would probably not regard caring for you and your back condition as exceptional circumstances compelling them to exercise their discretion

To be otherwise eligible, you must show:-

• 1. That you are legally married to each other
• 2. You are present and settled in the UK
• 3. You intend to live permanently together here in the UK as husband and wife
• 4. You can support each other without the need for public funds
• 5. You have suitable accommodation which is owned or lived in only by you or your household and where you and your dependents can live without any help from public funds
• You must meet the financial requirement:-
• http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/can-you-apply/financial/
• Further guidance:-
• http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/chp8-annex/section-FM-1.7.pdf?view=Binary

• This means that the UK based spouse must earn a minimum income threshold of £18,600. Alternatively, if you have savings of £62, 500.00 then you would not have to prove any salary. You can also use a mix of the two.
The problem with the above is that you do not meet the financial criteria is you are self employed and have earned £18, 600.00 in the last full financial year OR an average of the income received in the last 2 full financial years.

If you wished to meet the financial criteria via cash savings only then you would need £62, 500.00 in cash savings

Therefore, at the present time you do not meet the financial criteria. This is very strictly applied and her application (whether in country or outside) would be rejected. T
The criteria is highly controversial and you may have heard news reports about it. However, it remains lawful at the present time.

Therefore, if she were to return to her home country to make an application to get around the overstay then it would still be rejected and you would not be able to get it approved until you have reached the salary level and can demonstrate this.

If she remains in the UK then she will not be able to work because she does not have this right under a visitor’s visa. You would be able to remain together until the UKBA catch up with her and potentially issue removal directions to deport her. You would attempt to defend this on the basis of your human rights and it may take some time for them to actually be successful.

However, if you were to do this the length of the overstay will increase. Although an overstay is not a reason on it’s own to reject an (out of country) application it will mean that the UKBA will be on a very adversarial footing when considering the application that she ultimately makes. It’s a decision for you to take and, plainly, it’s not an easy one.

I am sorry that I could not have better news for you. I do not agree with the level of the salary threshold at all and you have my sympathies.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

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Kind regards,


Tom
Customer: replied 3 years ago.

Tom,


 


I do appreciate your careful comments, thank you.


 


Can you please tell me - assuming we just stay and see if something happens or not - then we decide to leave say in Jan-Mar 2014. What would the procedure be?


 


A: If we left (both together). What would be the scenario at the airport?


 


B: If stay on and the UKBA find my wife, could I keep her with me while we lodged a case on human rights grounds or would she be detained?


 


To be blunt, we are seriously considering the option of selling out and leaving, but don't want any upset (detention) to occur.

Expert:  Thomas replied 3 years ago.
Hi,

Your wife would probably receive a ban from re-entering the UK of 1-2 years. However, you shoudl be able to argue around the ban because your article 8 rights to a family and private life supercede these.

She may be detained initially, but you would instruct counsel and hopefully have her release after a bail hearing because of your human rights.

If you a proposing to sell up and leave the country to settle outside the UK then there is no chance that she would be detained at the UK airport. They woudl simply issue the ban and note it in her passport and let you go on your way. The detain when illegal migrants are attempting to stay in the country, not when they are attempting to get out.

Please remember to rate my amswer.

Kind regards,


Tom

Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7590
Experience: UK Lawyer holding practising certficate for England & Wales.
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