Tuesday, 23 December 2014

Help me with the Rules (Part 2): How to find out whether you can switch from one visa to another? From a Tier 4 to a Spouse, from a Tier 4 to Tier 2 or even from a visitor to a Spouse – it’s all there in the Immigration Rules!

I call it my “Other way around principle’. Do not look on the Rules for a category you’re now in. You’ll find how to switch to your current visa, which you already have. It works “other way around” – look in the Rules of the category you’re looking to switch to.  
Each category has a section called Requirements for a Leave to Remain. Then you’ll see a point saying around the lines “The applicant must have or have been last granted a leave (that’s a term for a visa) as a ….” and the name of the categories which allow to switch. If you find your current visa there then you can switch, if not then not. If there is no section for a Leave to Remain then no one can switch to that category (example is a Tier 5 Youth Mobility Scheme).
Here are some common examples from our practice:
EXAMPLE 1: Switching from a Tier 4 Student visa to a Tier 2 General sponsored work visa inside the UK. The category you’re switching to is Tier 2 General, so this is where we need to look – Part 6A: https://www.gov.uk/government/publications/immigration-rules-part-6a

In the Tier 2 (General) … we get:

245HD. Requirements for leave to remain

(b) the applicant must:

… or (ii) have, or have last been granted, entry clearance, leave to enter or leave to remain as:

 (1) a Tier 4 Migrant …”

This is how you know you can switch. However, in this case, if you keep reading you’ll find some extra requirements for students, such as having to complete a degree on the current Tier 4 visa.


“…(d) An applicant under the provisions in (b)(ii) above must meet the following requirements:

(i) The applicant must have completed and passed:

(1) a UK recognised bachelor's or master's degree (not a qualification of equivalent level which is not a degree)…”

So, this is how you know about the extra conditions imposed on such switches. Try to do such an exercise with switching from a Tier 4 to a Tier 1 Entrepreneur visa (won’t be easy because the extra rules aren’t as easily provided but they are still in the Rules!).

EXAMPLE 2:  Switching from a Tier 4 Student visa to a Spouse visa inside the UK, following a marriage to a UK citizen. I am giving this example firstly because it is one of most popular types of applications and secondly, because Appendix FM has a slightly different way of saying who can switch.

The category you’re switching to is a Spouse visa, so we need to look in the Appendix FM:  https://www.gov.uk/government/publications/immigration-rules-appendix-fm

Under the Section R-LTRP: Requirements for limited leave to remain as a partner then in Immigration status requirements:

“E-LTRP.2.1. The applicant must not be in the UK-

(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings …”

Rather than saying what visas you can switch from, the Rules here “say” that you can switch from any visa except from the ones above. Other way around again! So, here we get the answer: as long as you are not a visitor and not on a visa (such as a student one) which is issued for 6 months or less – you can switch to a Spouse visa inside the UK. A Fiancé(e) visa is rightly mentioned because it is for 6 months but does allow to switch to a Spouse status.
This example also answers a very popular question whether a visitor can switch to a Spouse.
OTHER COMMON EXAMPLES INCLUDE – please contact us for an advice session if you need answers:
Can I switch from a Tier 5 visa to a Spouse visa?
Can I switch from a Tier 2 visa or a Tier 4 visa – to a visa as a Spouse of an EEA citizen? These would be under the EEA Regulations, not under the UK Immigration Rules, and are very different.
Can I switch from a Tier 2 Intra-Company Transfer to some visa which leads to an ILR?

Very popular: Can I switch from a Tier 4 student visa to a Tier 1 visa?
I am finishing my degree on a Tier 4 visa, what options do I have to stay in the UK?

Furthermore, other common questions are also answered by the Rules. For example, does my visa allow to work? Does my visa lead to permanent residency (Indefinite Leave to Remain)?  If you’d like to read how to establish whether your visa can be combined with the previous visa when qualifying for an ILR, please read the earlier post: http://1st4immigration-visas.blogspot.co.uk/2014/12/help-me-with-rules-how-to-find-out.html

For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com
If you are an Immigration Adviser or a Solicitor please visit our immigration Training and CPD website: www.1st4immigration.com/training

Friday, 12 December 2014

OISC Level 1 course, Sat-Sun 31 Jan - 1 Feb 2015, City of London (Monument), from a practicing immigration company. Plus date for the next 6 months - we have training every month.

2-day weekend courses, every month, at our office in the City of London. Multi Travel Visas Ltd and a sister company, 1st 4Immigration Ltd, are both accredited by The OISC, ref F201100418 and F200800152 respectively. After many years of experience – and hundreds of successful cases – we are offering to share our experience with you to help you prepare for your OISC Level 1 assessment and accreditation. You can read Testimonials on our immigration cases here.

TRAINING DATES (we have a class every month) - all available to be booked now.

Weekend 31 January - 1 February 2015

Weekend 28 February - 1 March 2015

Weekend 21 - 22 March 2015

Weekend 11 - 12 April 2015

Weekend 16 - 17 May 2015

Weekend 27 - 28 June 2015


Our tutors are our very own OISC-accredited practicing immigration advisers who handle the real cases during the week and teach on weekends. You can read about them on the Tutors page.
 
Unlike most traditional courses, ours is conducted using plain language and does not simply contain quotes from the Immigration Rules. We include cases studies from our practice, answers to most common questions, a Questions&Answers session and a mock Level 1 assessment, which is given to the candidates at the end to complete in their own time and send to us. Generally, we try to keep it as entertaining as possible. We will also provide a printed version of the course (150 pages) for you to take home, which is very detailed, contains more cases studies and you can take it with you to the 'real' OISC exam.

To book visit our training website: http://www.mtv-training.co.uk/
Detailed Course Agenda can be found here and is designed in our own unique way.

Online OISC Level 1 course (as opposed to classroom training): you can instantly download from this link and study in your own time.

Multi Travel Visas Ltd: 68 King William Street, City of London, London, EC4N 7DZ. Near Monument underground station. Email: info@mtv-training.co.uk , Phone: 0871 472 1468 (£0.10 per minute, emails are free).
 
_________________________________________________________________________________You can find a detailed Table of Contents on the link above, here are 2 examples (of 20):

PART 1: CRUCIAL TO GET THE BASICS!2 systems of immigration law: UK law and European law | Types of visas under the UK law | Entry Clearance | Visitor visa | Leave to Remain (also called Residence Permit or Limited Leave to Remain) | Indefinite Leave to Remain (ILR) | It is possible to lose an ILR, however Indefinite it is | Indefinite Leave to Enter | There is also a Leave to Enter
Settlement’ and 2 confusing meanings of this word | Common question:  Passport has expired, do I have to transfer my visa to a new passport | What is Switching? | Common examples when switching is not allowed even though the migrants are desperate to do so | What is the Date of Application and why it is so important? | When is the Date of Application? | In-time and Out-of-time applications

PART 2: IMMIGRATION RULES AND HOW TO USE THEM
Each category rules consist of 3 parts | My ‘Other way around’ principle | How to determine if switching is possible?| How to determine if a visa allows to work? | Registration with the police | Tuberculosis test | UKBA Staff Guidance

You can find Extracts on the link above too, here are 2 of them:

Extract from the “IMMIGRATION RULES AND HOW TO USE THEM” section:
No one knows everything and remembers all the rules! The trick is to know how to use the Immigration Rules and where to find  the specific information. The Rules may change anytime, and they do change a lot, but if you know how to use the Rules you could check the requirements or check the changes at any time. For example, things like whether a migrant can switch a visa category while in the UK or whether a migrant can work or whether a particular English test is acceptable are all a matter of the Rules, not a matter of guessing.

My ‘Other way around’ principle:
I call it ‘other way around’ because many people tend to think this way: “I am on a Tier 5 visa and want to know if I can apply for a Spouse visa inside the UK”, then they go on the Immigration Rules webpage for the Tier 5 category and try to read the rules there. Understandably, they only find the rules about how to get a Tier 5 visa, which they already have, and not a Spouse visa.

What you need to do is to act the ‘other way around’, ie to check the rules of the category your client is looking to apply for, not the rules of the category in which he/she already has a visa. In our example of switching from a Tier 5 to a Spouse visa it is the Spouse visa rules that one needs to read – to determine if he/she can qualify.

Extracts from the “CRUCIAL TO GET THE BASICS!” section:

What is Switching?
Switchingis not an official term. Switching simply means changing a visa category while inside the UK, ie switching from one to another, such as from a Tier 4 Student to a Tier 2 General; or from Tier 4 to a Spouse visa. Officially it is called ‘applying for a leave to remain in a Tier 2 General category’ or ‘applying for a leave to remain as a Spouse of a UK citizen’. So, we can simply say ‘Switching from a Student visa to a Spouse visa’.

The significance of switching is this: switching means applying inside the UK and it is only allowed if the Rules specifically allow so. If switching is not allowed then the applicant has to return to their country and apply for a visa from there, which means he/she would be applying for an Entry Clearance.

What is the Date of Application and why it is so important?

Imagine this: you are making an application today but tomorrow the Rules are changing, which rules would apply? Or you have made an application a month ago, your visa expires in 2 weeks time and your application is not going to be decided before then, are you going to become an overstayer through no fault of your own?

A Date of Application idea deals with such issues. If the date of your application is before the Rules changed then your application is going to be considered under the Rules in place before the changes. For example, Spouse/Partner visas rules were significantly changed on 9 July 2012, yet those who applied before that, even on 8 July 2012, had their applications considered under the old rules, even if the decision was made a few months after the rules changed.

If the date of your application is before your last visa expired then your status remains the same as it was on the date of application for as long as it takes for a new application to be considered. However long it takes, even if the last visa expired by then. Officially it is extended by virtue of section 3C of the Immigration Act 1971, which automatically extends the ‘last visa’ for as long as it is going to take for a decision on the new application. This means migrants do not become overstayers through no fault of their own?

Wednesday, 10 December 2014

Do I have to use the same method of meeting the Financial Requirement (£18,600) as I used in the previous Spouse/Partner application?

For example, if you used employment income when your spouse/partner was coming to the UK,  does it mean you have to keep the same job? Do you have to keep working at all for the duration of the Spouse/Partner visa? Or, if you used a Savings Category (D) and held £62,500 for 6 months, does it mean you have to keep the money until the next application?

The above are very common questions in our practice. The answer is: every application is considered based on the financials at the time of that application, so you can certainly vary the method of achieving the Financial Requirement threshold (£18,600 income or £62,500 savings). So, if you used savings of £62,500 when your spouse secured his/her initial Spouse visa, then after 2.5 years you can use a different method, such as earnings from your job – as long as it meets the Financial Requirement and you can provide the Specified Evidence (specified documents in the format the UK Visas and Immigration wants them).

Moreover, it can be either spouse’s income, as long as it meets the requirements. For example, if the initial visa was based on the British partner’s job in the UK, extension after 2.5 years can be based just on the foreign partner’s job in the UK. As long as the foreign partner is earning enough. Since the foreign partner has had a right to work in the UK while on the initial Spouse/Partner visa (but not a Fiancée visa), he/she can use those earnings to meet the Financial Requirement for an extension or even for Indefinite Leave after 5 years.

It can also be a combination of both partners’ earnings, if required to reach the minimum £18,600 (as long as the foreign partner has had a right to work in the UK). This will include switching from, say, a Tier 2 or even a Tier 4 visa if the foreign partner was working in the UK legally.

If both partners work and each can reach £18,600 individually, then the application can be based on only one partner’s earnings, does not matter whose. You may be tempted to add the other partner’s financials anyway – and there if no harm in doing it! Well, apart from having to deal with 2 piles of paperwork instead of one. In terms of meeting the Rules, it won’t make any difference, however. Whether you are meeting the threshold ‘just’, ie just over it; or whether you are meeting it very comfortably, the only thing that matters is whether you meet it or not!

For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com

If you are an Immigration Adviser or a Solicitor please visit our immigration Training and CPD website: www.1st4immigration.com/training

 

Monday, 8 December 2014

Special offer Online OISC Level 1 course £299+VAT. CPD 16 core hours.

Online OISC LEVEL 1 Course. CPD 16 Hours. Including a mock Level 1 Assessment and real case studies from a practicing OISC-accredited immigration company.
This is a most requested training course and you can now download our OISC Level 1 training course to your computer and study in your own time - to prepare for your OISC accreditation and Level 1 Assessment. No need to travel to a classroom, no need to wait for the next date. You can start your immigration training right now!
 
As we are a practicing OISC-accredited immigration company, we have designed this basic level course to be of practical help for those who are preparing for OISC accreditation at Level 1 and for compulsory Level 1 Assessment. Or perhaps to those who are planning to open a UK immigration consultancy based overseas. It would also be of interest for practicing advisers and immigration lawyers as well as for community group advisers, council or Citizens Advice Bureau workers, volunteers etc.
 
This is not a boring coverage of the Immigration Rules! We tried to keep the language as simple and entertaining as possible. See the Contents and Extracts on our website!
 
Please note: we are not the OISC and our courses are designed for training. Taking our course does not guarantee OISC accreditation, you'd have to apply to take an OISC exam for that or submit your CPD record to them if you are already accredited.

1)    You can download the course now: http://www.1st4immigration.com/training/online-oisc-level-1-course.php

 2)    You can read here about the benefits and why our course is different: http://www.1st4immigration.com/training/online-oisc-level-1-course-differences.php
3) You can find a detailed Table of Contents on the link above, here are 2 examples (of 20):

PART 1: CRUCIAL TO GET THE BASICS!
2 systems of immigration law: UK law and European law | Types of visas under the UK law | Entry Clearance | Visitor visa | Leave to Remain (also called Residence Permit or Limited Leave to Remain) | Indefinite Leave to Remain (ILR) | It is possible to lose an ILR, however Indefinite it is | Indefinite Leave to Enter | There is also a Leave to Enter
Settlement’ and 2 confusing meanings of this word | Common question:  Passport has expired, do I have to transfer my visa to a new passport | What is Switching? | Common examples when switching is not allowed even though the migrants are desperate to do so | What is the Date of Application and why it is so important? | When is the Date of Application? | In-time and Out-of-time applications

PART 2: IMMIGRATION RULES AND HOW TO USE THEM
Each category rules consist of 3 parts | My ‘Other way around’ principle | How to determine if switching is possible?| How to determine if a visa allows to work? | Registration with the police | Tuberculosis test | UKBA Staff Guidance

4)    You can find Extracts on the link above too, here are 2 of them:

Extract from the “IMMIGRATION RULES AND HOW TO USE THEM” section:
No one knows everything and remembers all the rules! The trick is to know how to use the Immigration Rules and where to find  the specific information. The Rules may change anytime, and they do change a lot, but if you know how to use the Rules you could check the requirements or check the changes at any time. For example, things like whether a migrant can switch a visa category while in the UK or whether a migrant can work or whether a particular English test is acceptable are all a matter of the Rules, not a matter of guessing.

My ‘Other way around’ principle:
I call it ‘other way around’ because many people tend to think this way: “I am on a Tier 5 visa and want to know if I can apply for a Spouse visa inside the UK”, then they go on the Immigration Rules webpage for the Tier 5 category and try to read the rules there. Understandably, they only find the rules about how to get a Tier 5 visa, which they already have, and not a Spouse visa.

What you need to do is to act the ‘other way around’, ie to check the rules of the category your client is looking to apply for, not the rules of the category in which he/she already has a visa. In our example of switching from a Tier 5 to a Spouse visa it is the Spouse visa rules that one needs to read – to determine if he/she can qualify.

Extracts from the “CRUCIAL TO GET THE BASICS!” section:

What is Switching?
Switchingis not an official term. Switching simply means changing a visa category while inside the UK, ie switching from one to another, such as from a Tier 4 Student to a Tier 2 General; or from Tier 4 to a Spouse visa. Officially it is called ‘applying for a leave to remain in a Tier 2 General category’ or ‘applying for a leave to remain as a Spouse of a UK citizen’. So, we can simply say ‘Switching from a Student visa to a Spouse visa’.

The significance of switching is this: switching means applying inside the UK and it is only allowed if the Rules specifically allow so. If switching is not allowed then the applicant has to return to their country and apply for a visa from there, which means he/she would be applying for an Entry Clearance.

What is the Date of Application and why it is so important?

Imagine this: you are making an application today but tomorrow the Rules are changing, which rules would apply? Or you have made an application a month ago, your visa expires in 2 weeks time and your application is not going to be decided before then, are you going to become an overstayer through no fault of your own?

A Date of Application idea deals with such issues. If the date of your application is before the Rules changed then your application is going to be considered under the Rules in place before the changes. For example, Spouse/Partner visas rules were significantly changed on 9 July 2012, yet those who applied before that, even on 8 July 2012, had their applications considered under the old rules, even if the decision was made a few months after the rules changed.

If the date of your application is before your last visa expired then your status remains the same as it was on the date of application for as long as it takes for a new application to be considered. However long it takes, even if the last visa expired by then. Officially it is extended by virtue of section 3C of the Immigration Act 1971, which automatically extends the ‘last visa’ for as long as it is going to take for a decision on the new application. This means migrants do not become overstayers through no fault of their own?

Can I combine time spent on Tier 2 and Spouse visa when applying for Indefinite Leave to Remain (permanent residency)?


The short answer is No. We should just as well smash a very popular theory that one gets an Indefinite Leave after 5 years in the UK. It’s not true. One gets an Indefinite Leave (permanent residency, we’ll call it ILR from now on) after spending a specified number of years in the UK in the eligible category. Or sometimes – eligible categories.

Some categories can be combined while others can’t be. Tier 2 General visa can be combined with Tier 1 General but can’t be combined with a Spouse/Partner visa. Spouse/Partner visa now can’t be combined with any other visa at all, so your qualifying period for an ILR will start all over again if you switch to a Spouse/Partner visa (currently, it is 5 years, so ‘your’ 5 years will start all over again). This is a matter of the Immigration Rules, so fortunately, there is no need to guess. each category of the Rules has a list of what can be combined (and can’t be, if it’s not on the list). You may find useful our earlier post on ‘Help me with the Rules’: http://1st4immigration-visas.blogspot.co.uk/2014/12/help-me-with-rules-how-to-find-out.html

One of the main reasons for this confusion is the fact that an overwhelming number of categories require 5 years to qualify for an ILR. So, it is indeed easy to think that 5 years of residency in the UK is all one needs. However, some categories require less or more than 5 years: those on the old Discretionary Leave need 6 years, those applying through Family or Private Life route – 10 years. Spouses/Partners of UK citizens needed only 2 years under the Rules before 9 July 2012 (now it is 5 years).

There is only one category when any visas can be combined -  Long Residence 10 years, which needs 10 years of legal residency in the UK on any types of visas. Those qualifying under the EEA Regulations have different Rules altogether, all of the above relates to the UK Immigration Rules.

For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com

If you are an Immigration Adviser or a Solicitor please visit our immigration Training and CPD website: www.1st4immigration.com/training

Help me with the Rules! How to find out whether you can combine Tier 2 and Spouse visa or a Tier 2 and Tier 1 visa (and similar) when applying for Indefinite Leave (permanent residency)?

This post would be of interest to the migrants but we also teach this skill (how to use the Rules) in our immigration training, which we provide for our fellow advisers, solicitors or those who’re preparing to become an adviser.

Judging whether you have spent enough time in the UK to qualify for an Indefinite Leave to Remain (ILR from now on) is a matter of the Rules. The Rules ‘simply’ say it and if they don’t then you can’t combine.

Here are the most common examples from our practice:

EXAMPLE 1: can I combine Tier 2 and Spouse visas? Go to the Rules relevant to the last category, in our case Spouse visa, so we go to the Appendix FM: https://www.gov.uk/government/publications/immigration-rules-appendix-fm

Under the Section R-ILRP, then in Eligibility: “E-ILRP.1.3. The applicant must have completed a continuous period of at least 60 months with limited leave as a partner...” So, we need 60 months (5 years) with a Spouse visa, nothing about Tier 2! In other words, a migrant who switched from a Tier 2 to a Spouse visa has to start his/her 5 years as a Spouse all over again.

EXAMPLE 2: can I combine Tier 1 Post-Study Work visa with Tier 2 General visa? Here the last category if Tier 2 General, so we go to Part 6A: https://www.gov.uk/government/publications/immigration-rules-part-6a

In the Tier 2 (General)... section under  245HF. Requirements for indefinite leave to remain we get:

“... (c) The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 2 Migrant, in any combination of the following categories:
...
(vi) as a Tier 1 Migrant, other than a Tier 1 (Post Study Work) Migrant, ... “

So, based on the above, Tier 1 Post-Study Work visa is not counted.  

 
OTHER COMMON EXAMPLES INCLUDE – please contact us for an advice session if you need answers:

Can I combine a Tier 4 Student visa?

Can I combine a Tier 5 visa?

Can I combine a main and a dependent visa , such as Tier 2 main with a Tier 2 Dependant?

Very popular: Can I count Tier 2 (Intra-Company Transfer)?

Popular now, since Tier 1 General extensions are going to be closed: Can I combine Tier 1 General with Tier 1 Entrepreneur?

Can I combine a Tier 2 visa with a Residence Card under the EEA Regulations? This is a matter of the EEA Regulations, rather than the Immigration Rules, but the answer is still in the source of law.  

Furthermore, other common questions are also answered by the Rules. For example, can you switch from one category to another while in the UK? Does a visa allow to work?

For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com

If you are an Immigration Adviser or a Solicitor please visit our immigration Training and CPD website: www.1st4immigration.com/training

When switching to a Spouse/Partner visa, can I use evidence of English language which I used in the previous (non-Spouse/Partner) application?

For example, if you  are switching from a Tier 4 Student visa or from a Tier 1 General visa or from a Tier 2 visa, you need to prove English language proficiency at minimum A1 level (in Speaking and Listening). Most likely you needed a higher level for your student visa (A1 is the most basic level). You had proved English at a much higher level if you  have a Tier 1 visa. And you had probably proved English at minimum A1 level if you’re switching from a Tier 2 visa (except for some on Intra-Company Transfer visas). So, wouldn’t be logical to just say you had proved it before and are relying on it now, in your FLR(M) application?
 
It would be logical but it won’t be within the Rules. If your previous visa were in the same category, ie a Spouse/Partner/Fiancée visa, and you’re extending in the same category then Yes, you can rely on the fact you had proved English language requirement earlier (assuming those visas were immediately before the current one).
 
However, if your previous visa is in a different category then you have to prove English all over again. For example, if you’re switching from a Tier 1 visa (ie Post-Study Work, General etc) to a Spouse/Partner visa and used your degree to meet the English language requirement previously then you can use the same degree again – but need to provide the original certificate (so it’s like doing it all over again).
 
If you are switching from a Tier 4 visa and have completed a degree in the UK (Bachelor, Master, PhD) then you can use it to prove English. If you don’t have a certificate yet it’s not a problem, as long as you have successfully completed your degree, it can be other documents than a certificate.
 
If you’re switching from a Tier 2 visa and used, say, an IELTS test 3 years ago which has now expired, then you can’t use it for your Spouse/Partner visa.
 
For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com
 
If you are an Immigration Adviser or a Solicitor please visit our immigration Training and CPD website: www.1st4immigration.com/training