Stuart McWilliams: Ghost of visas past could come back to haunt you

Stuart McWilliams is a Senior Associate at Morton Fraser
Stuart McWilliams is a Senior Associate at Morton Fraser
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Every year, ­without fail, December seems to be an exceptionally busy month.

This year, the Home Office has announced an increase to the Immigration Health ­Surcharge which will increase the cost of applications. As we race to submit visa ­applications before the increase comes into force, we continue to deal with new enquiries and December always seems to bring an ­interesting case or two.

Recently we have been approached by a new client, Mr Ebenvisa Scrooge. ­Unfortunately Mr Scrooge was concerned that his wife’s application to come to the UK to join him for Christmas could be refused due to ­historical issues.

The background of Mr Scrooge’s case is as follows:

• His wife lives and works in the United States, and the ­couple have previously spent time in both locations using short term visit visas.

• Last year, when the couple came to the UK for Christmas, Mr Scrooge’s wife decided to help her husband’s business by updating his books so his usual assistant could take a longer holiday. Mr Scrooge has recently started to encourage his employees to take longer Christmas breaks after years of forbidding them.

• Unfortunately the Home Office became aware of this and fined Mr Scrooge for employing an illegal ­worker, since visitors cannot work in the UK. Mrs Scrooge was also accused of breaching the conditions of her visa before she left the UK voluntarily in March 2018. Mr Scrooge strangely refers to this as “another ghost of Christmas past”.

• The couple want to spend Christmas in the UK, but their main concern is whether or not Mrs Scrooge can move here permanently in early 2019.

We advised Mr Scrooge that unfortunately the previous visa issues were likely to affect his wife’s Christmas plans. ­Visitors to the UK can be refused entry if they have ­previously breached a ­condition of their visa, and they have not been outside the UK for more than 12 months since that occurred. Since Mrs Scrooge only left the UK in March 2018, she will likely be refused entry if she tries to ­re-enter the UK for Christmas this year. This was ­obviously a disappointment for Mr Scrooge but he was happy to spend Christmas in the USA instead.

Fortunately we did have some better news for Mr Scrooge, as the restriction which applies to visitors does not apply to the partners of British nationals who want to come to the UK permanently. This means that the ­couple do not need to ­postpone their plans to move to the UK ­permanently in ­early 2019.

Applications for settlement visas can take up to 12 weeks to be processed, and delaying an application until March 2019 would have significantly affected their plans. Instead we recommended starting the application process now so the couple can move as soon as possible.

Mr Scrooge was delighted to hear that the ghost of visas past doesn’t affect visas that are yet to come, but we did have to caution him that this isn’t always the case. The previous issue might come up again, if his wife wants to become a British citizen in the future, since there is a good character requirement at that stage.

This Christmas tale demonstrates that the importance of being aware of your visa restrictions, as even an ­innocent mistake can ­create complications for future plans.

If you are concerned about a previous visa issue, and how it could affect you moving ­forward, please get in touch.

Stuart McWilliams is a ­senior associate at Morton Fraser