4

My wife and I are married for 13 years, 3 years ago we moved to the UK, bought a business, and live a lovely life. We brought all our furniture, pets and finances over here and now my wife's Leave to remain family permit with human rights grounds visa has been refused, and she has been give 90 days to leave.

We cannot appeal from within the UK. The ruling is made.

Can she fly back to South Africa and then apply for a visitor visa to come back while we sell the business and plan to move back to SA?

Any ideas very welcome! We are SO desperate.

  • Does she have any kind of ban in addition to being asked to leave? – cHiEf Immigration vIoLaTer Feb 16 '17 at 13:10
  • Is your wife an SA citizen? – JonathanReez Feb 16 '17 at 16:11
  • Also, why didn't your wife apply through the regular marriage visa route in the first place?.. – JonathanReez Feb 16 '17 at 17:14
  • 2
    Think about this from their perspective. You ask "can I live in the UK?" They say no. Then you apply for a visitor visa, which is basically saying "can I visit the UK? I promise I totally just want to visit and don't want to live there or anything." You can certainly apply, but it's a tough argument to make. Knowing your country of citizenship would help a lot though. – Zach Lipton Feb 16 '17 at 20:23
  • I...have read this story before. On Expatriates? I haven't been able to find it. IIRC, the wife is South African but I think the OP is British. – mkennedy Feb 16 '17 at 20:29
9

Your wife was (apparently) living in the UK with a perilous immigration status and has been given the standard removal instructions when the pathways for in-country appeals have been exhausted.

Can she fly back to South Africa and then apply for a visitor visa to come back while we sell the business and plan to move back to SA?

Yes, anyone can apply for a visitor visa. The sole condition is that the applicant must be outside of the UK and Islands at the time of their application (Paragraph 28).

From a practical point of view, when someone makes an in-country leave-to-remain application that fails and subsequent appeals fail, it is taken that the person has committed themselves to living permanently in the UK. This assumption has a profoundly damaging affect on the person's credibility as a visitor.

Moreover, the premise of liquidating a business is unlikely to be acceptable to UKVI because of her history of not understanding the rules or conditions of her visa. It's been clarified in comments that your wife entered on a spouse visa and was unable to further qualify because of the income hurdles (GBP 18,600 per year) in Appendix FM. There is no prohibition for an individual on a spouse visa to participate in the ownership of a business and it's not clear at all that the emotive article printed in Torquay Herald Express was authored by someone with a credible understanding of the rules. You would be better off relying on professional counsel.

Personal note: a long time ago when I was training, Keith Best told me that you cannot shame the Home Office because the Home Office has no shame, so it's likely they will follow through on your wife's removal.

Currently, South Africa is a visa-national country so a visa is required prior to departing for the UK.

In addition to being able to apply as a visitor, your wife also has the option to continue her human rights appeals from South Africa.

  • 2
    According to this article, the wife did enter on a spousal visa, but they didn't pay salaries out of the income from the business, so technically can't renew the visa. – mkennedy Feb 16 '17 at 20:52
  • Can OP still fix things by moving to Ireland, obtaining residency there, and then using the EU Family Rights laws? – JonathanReez Feb 17 '17 at 10:33
  • @JonathanReez The newspaper article was poorly written and shouldn't be taken as authoritative at all. – Gayot Fow Feb 17 '17 at 12:31
  • @GayotFow I'm referring to Surinder Singh: gov.uk/family-permit/surinder-singh. Would having an EU Family Member card override the Home Office ruling? – JonathanReez Feb 17 '17 at 12:50
  • @JonathanReez yes I know the Singh route quite well, it's a question for Expats, not us here in Travel. Singh is an inward migration route leading to residency and we're a travel site. I'm sure UKVI would point out that Regulation 9(2)(c) was engaged anyway. – Gayot Fow Feb 17 '17 at 12:59

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.