UK Citizen, wife and son are Canadian- can they be in the country while waiting for a visa?

Question

I am a UK citizen and my wife and son are Canadian citizens. I was living in Canada for the past five years and have recently moved back for work and obviously, I would want my wife and son to join me in the UK ASAP. I am two months away from achieving the six-month requirement to be able to sponsor them to live in the UK and they have been staying with me for the past few months on visitor visas.

As I understand, they will need to leave the UK in order to apply for a spousal visa (let me know if this isn't the case). My question is whether they can leave, apply, and return to the UK on a visitor visa while we wait for a decision on our spousal application. Ideally, they could leave for a weekend, apply and come back- I really don't want to live apart for them again for another three months. Do they need to return to Canada or could we take a holiday to Europe and apply? That would be much cheaper.

I also understand that as I am a British Citizen 'not of descent', ie that I was born here, my parents were born here etc. my son may already have British citizenship- is this the case and if so how can we have that legally recognized? Can he be issued a UK passport or dual citizenship?

Thanks in advance for your help.

Answer 1

I've answered this question only for your wife, since based on your comments it seems almost certain that your son is already British, so can enter and leave the UK without issue.

Unfortunately, it inadvisable for your wife to attempt to return to the UK while she is awaiting her entry clearance. The standard procedure when applying for a UK visa, is that you book an appointment at an application centre, hand over your application forms and passport, and wait to be notified of a decision. Obviously, this would normally preclude your wife from traveling internationally in cases where a passport is required.

However, it is possible to pay for a premium service which allows you to keep your passport during the application process, while waiting for the decision. This might seem like the solution, but in fact, it isn't wise for the applicant to attempt to enter the UK during this time. As an applicant for a family visa, your wife has declared her intention to settle in the UK. If she shows up at the border before a decision on her application has been made, she will be attempting to enter as a visitor, which means convincing the immigration officer that she isn't going to settle in the UK. It is possible that she could argue this effectively, particularly if the visit is for a specific reason (eg, attending a wedding), but she would be unlikely to be granted entry if she simply plans to live in the UK as if she had already been granted her family visa.

If she fails to convince the officer, she may be subjected to the very unpleasant experience of being temporarily detained (possibly overnight, depending on the time of day), and then returned to Canada. Or, if the officer is feeling generous, she could be temporarily admitted. Either way, she might need to disclose this event in the future when applying for admission to other countries.

In my opinion, the best thing for her to do is not to attempt to return to the UK before receiving her family visa. If you want to speed up this process, you can pay for priority processing for $783, although this doesn't actually guarantee the visa will be processed faster.