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I am a UK citezen and my wife is on a Tier 2 General visa. We would like to apply for Spouse visa so that she is able to find work with other companies (her present visa is issued for a specific employer and would have to be re-applied for if she were to find work for another employer).

In depth reasoning: If you leave the UK, you can claim your income tax back as you will not be remaining in the UK as a permanent resident. Before you are issued your UK passport, you are required to be living and working in the UK for 5 (or 6... not sure) years. If you leave, you get your tax back; if you choose to remain and apply for permanent residence, you can't.

Since my wife has been on her current visa (Tier 2 general) for its full duration (2 years), she could continue another 3 years and claim her passport. However, moving to a spouse visa causes this 'tally' to reset... meaning that she now has to build up her 5 years from year zero (as if she just arrived in the UK).

Since her 2 years on the Tier 2 General visa will not count toward her passport, we think that she can claim her income tax (otherwise those two years are simply lost and all the money she has paid in tax is for... nothing?!)

Question: Are we able to claim an income tax refund?

Visa website - so that you know which visa I am talking about.

  • A refund of what tax, and why? The link you give makes no mention of tax. You might want to post this question on expatriates.stackexchange.com instead. – phoog Oct 31 '15 at 21:54
  • @phoog thanks. Updated - looking for info on income tax. The link is just one to the visa so that people know what visa I am referring to. I will post to the other stackexchange later if I get no joy here. – pookie Oct 31 '15 at 22:45
  • But why would you think you have any claim on a tax refund? I do not think that tax liability depends on immigration status. – phoog Oct 31 '15 at 22:54
  • @phoog Thanks; I see that I am not being clear enough and hopefully the updated post gives a better insight into our reasoning. – pookie Nov 1 '15 at 22:35
  • Thanks, that makes it much clearer. I find it odd that changing visa status causes the clock to reset, but it seems that it is in fact the case. – phoog Nov 1 '15 at 23:47
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Since my wife has been on her current visa (Tier 2 general) for its full duration (2 years), she could continue another 3 years and claim her passport.

No, not exactly. A T2 can apply for Indefinite Leave to Remain (ILR, or permanent residence) after 5 years of bookable time. You need to pad in anywhere from 4 to 6 months for them to consider and approve the settlement application. Once the ILR has been granted, you need to spend a year in that status before nationality can be applied for. Nationality applications are taking between 3 to 6 months to consider and approve, and once it has been approved, you need to book and attend a ceremony which takes anywhere from 2 to 6 weeks, and THEN you can apply for a passport. So on the outside, you're talking about a couple of years. (ILR processing time + 1 year of residence with ILR + nationality processing time + ceremony lead time + passport application processing time).

I have heard of cases where a spouse on a work permit applied for nationality immediately after receiving ILR and did not have to wait the additional year of residency, but haven't seen one myself. In this case you are left with the 4 to 6 month ILR processing time and the 3 - 6 month nationality processing time. In either case all that happens after the first 5 years is the work permit holder can apply for ILR.

So the 5 year requirement is just one of the steps along the path to citizenship.

However, moving to a spouse visa causes this 'tally' to reset... meaning that she now has to build up her 5 years from year zero (as if she just arrived in the UK).

They reset the residency clock to zero when a person switches from an economic visa (in your case a Tier 2) to a family formation visa. They created this rule because people could not find T2 work and entered into a 'marriage of convenience' in order to stay in the UK, this was abuse, so they stopped allowing it.

When you take this route, Appendix FM kicks in with the various financial hurdles and the path to ILR is 5 years. However, a spouse can apply for nationality after only 3 years of residence with no requirement to spend a year in ILR status. So you essentially save a year in the path. Everything else I described above with respect to waiting times is applicable.

Are we able to claim an income tax refund?

If you are referring to back taxes paid under a T2, then no. There are no grounds to claim a refund for taxes that fell due on income earned in the UK. This would also be seen as an abusive practice because people would be using their immigration status to escape HMRC. The same is true for the NHS surcharge. These are sunken costs.

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