18

I am Ukrainian, my son and husband of 10 years are both British. In 2007 I came to the UK on spouse visa, I was granted ILR in 2009 but in 2010 we have moved to Thailand with my husband to work and travel. Our son was born here in 2014.

My husband has been traveling between London and Thailand for a year, setting up a base for us to return home. He is self employed as he has been all his life. Now he has regular jobs its difficult to travel.

We are planning to move permanently to the UK but not yet.

Can I apply for visitors visa?

21

Can a person who once held Indefinite Leave to Remain (ILR) apply for a Standard Visitor Visa?

Superb question! We have nothing like this in the archives here and this provides an opportunity to give some canonical treatment to it.

Background

ILR is equivalent to the US 'green card' or the 'permanent residence card/certificate' issued within the EEA. Technically it means the person can come and go under Paragraph 18A of the Immigration Rules...

Those who qualify for admission to the United Kingdom as returning residents in accordance with paragraph 18 do not need a visa to enter the UK.

ILR (or any UK visa) can be forfeit by the user by an absence of two years. Once a person loses ILR, Paragraph 19 kicks in...

A person who does not benefit from the preceding paragraph by reason only of having been away from the United Kingdom too long may nevertheless be admitted as a returning resident if, for example, he has lived here for most of his life.

To qualify under Paragraph 19, a person needs a "Returning Resident Visa" (RR visa). These are ridiculously difficult to get. If you go to a UK lawyer, the standard advice will be "don't apply, it's a waste of time". In the past four governments there's been a handful of successful applicants who were able to use Article 8 (in a long and drawn out process) successfully and a lot more who tried and failed.

My personal experience is as follows: forget about it. I don't mean to imply that the policy is right or wrong, we're not here to make moral judgements; what I imply is that the policy is part of WHAT IS and you have to deal with it as "tough cookies".

So when the person applies for a visitor visa, and when the person has a spouse in the UK (or some other situation where they can move back and settle), they face an ironclad, immovable presumption that the person intends to settle in the UK and to thereby avoid the hurdles in Appendix FM of the rules. So the application is in serious jeopardy because of the ILR history and once again the advice is often 'don't apply, it's a waste of time'. This holds true for both visa nationals and non-visa nationals. Failure to declare a prior ILR at a border control is an offence under Paragraph 320 of the rules and the person can be later done for deception by silence (see also the CPS Guidance).

TL;DR

When you add all of this together what you get is that the person is caught in a Zugzwang. That's why the OP asked the question!

Specific case: Spouse lost ILR in about 2012 (about 5 years ago)

With all of that pointed out, we turn to your question...

Can I apply for visitors visa?

Yes, of course you may apply. The rules say that anybody in the world can apply for any type of visa they want and your case is no exception. You create an account using your browser and put in all your details and yada yada yada, it's simple and mechanical.

After that you can await your refusal letter with about 98% certainty. So the golden solution is to arrange a consultation with a solicitor who specialises in awkward cases. Doing so can save you time, money, and most importantly a pejorative immigration history.

This does not mean you should be discouraged because there will always be the handful who apply successfully for a Standard Visitor Visa. But they would have been cleared minimally by a consultation and/or client care provided by a qualified practitioner. There are also situations where a person can present unique and compelling personal circumstances and apply successfully. We cannot assess personal circumstances with a view to an application here in TSE because we're not competent to do that (see Section 84 of the Immigration and Asylum Act 1999).

Specific case: Work permit holder lost ILR and wants to visit

See above. The answer is canonical. Again unique and compelling personal circumstances may succeed. Or they may not.

Specific case: The Singh Route

The details of the Singh Route are out of scope here, but briefly it is an inward route available to Brits who have lived for 6 months or more in an EEA member state. What happens when the ECO sees that the applicant has held ILR previously is the UK government's policy kicks in. Colin Yeo (who I know and like by the way and has an admirable track record in awkward casework) gives a great summary in his blog article...

  • The family member’s immigration history – including previous applications for leave to enter or remain in the UK and whether they previously resided lawfully in the UK with the British citizen
  • if the family has never made such an application, the reason the family member did not to apply to join the British citizen in the UK before the British citizen moved to the EEA host country
  • the timing and reason for the British citizen moving to the EEA host country
  • the timing and reason for the family member moving to the EEA host country
  • the timing and reason for the family unit returning to the UK

So ECO's are provided with a list of show-stoppers they can pull out of the hat. This is especially true if the ECO can make a tenable argument that the person is using Singh to circumvent the provisions of Appendix FM (which is not difficult most of the time). And how do you do that when the person has already been admitted under UK settlement rules? And worse, the policy is retrospective, which puts the applicant in jeopardy of being an illegal entrant when they apply for naturalisation.

Any time Singh gets mentioned in an answer, it will normally provoke controversy along the lines of shoot-the-messenger ("Singh is an automatic thing, right?"). But in counter point, Singh is far from automatic (ask Colin about it sometime) and having had ILR previously makes it complex beyond what we can deal with. And once you get a Singh refusal, there you are living in Ireland or France with your children having trouble adjusting to school and your partner popping Quaaludes 24/7 and a health insurance bill to pay with an immutable requirement to exercise treaty rights within 90 days and a lengthy Article 8 case in front of you. How's that working out for you? And on a strict technical basis Singh is an inward route to settlement and NOT about visitor visas, hence take it up in Expats.


Notes and comments

Invariably somebody wants to ask "I want to keep my ILR! What if I play "immigration ninja" by checking in at two year intervals and getting my passport stamped?" It's fine until it's challenged by an Immigration Officer and then deception by silence kicks in and see the above link to Paragraph 320.

Legal aid is not available for visit applications.

The child born abroad is "British by Descent" and should be registered as such.

The US has a similar policy of loss-by-abandonment with respect to its Permanent Resident status.

Again, it is not our mandate to judge the moral ascendancy of the UK's policy on Singh applications vis-a-vis UK rules. Our mandate is to consider it as part of WHAT IS.

Mentioning Colin Yeo explicitly is not spamish. He is widely acknowledged in the UK legal community as the UK's 'go to' resource for Singh. Practitioners arrange consultations with him to progress their own casework.

For the OP's implicit question: "how can I live with my husband in the UK?": the answer is we don't know. Not a clue. This is a travel site, questions about moving to the UK are handled at Expats. They will give you some great answers over there.

  • 1
    "Unlike other regimes, ILR (or any UK visa) can be forfeit by the user by an absence of two years" as I understand it, exactly the same thing applies to US Permanent Resident status. I certainly forfeited mine by effectively leaving the US and living elsewhere. – MadHatter supports Monica Mar 20 '17 at 10:51
  • @MadHatter you are invited to edit this answer and add an entry into "notes" especially for the US green card. Matters arising under US law are not in scope for the question, but potentially useful as a note. Thanks! – Gayot Fow Mar 20 '17 at 10:56
  • 10
    I think you need to highlight the actual answer to the question the OP probably wanted to ask ("How do I get to live with my husband again?"). That answer is "So the golden solution is to arrange a consultation with a solicitor who specialises in awkward cases." – Martin Bonner supports Monica Mar 20 '17 at 13:29
  • 2
    @MartinBonner the OP already asked that question seven months ago: expatriates.stackexchange.com/questions/9027/…. She's obviously doing her homework, and if you read the question carefully, you'll see that she is planning a short visit before moving permanently to the UK, and it's the short visit that she's asking about, not how to resettle in the UK. – phoog Mar 21 '17 at 2:14
  • 1
    Guys you are amazing! So much information, thank you. It is clear I am not in the best situation to apply for visitor visa. I will use a lawyer. Yes the intention is to live in the uk permanently . We dont have p60 or 6 m worth of payslips at the moment to apply for spouse visa. So if I get 6 m visitor visa it gives us time to get the documents needed. I can then go to Ukraine and apply again for spouse visa. – Kseniya Snelson Mar 21 '17 at 4:16

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.