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