Why you shouldn’t choose FRL(FP) visa application! Unless it is “the last resort”.
This post does not cover
all scenarios but does cover most common enquiries in our day-to-day practice. This
category, Family Life and Private Life but Family Life in particular, has become
very popular when it was introduced on 9 July 2012 (feels like it was
yesterday). In this post we are focusing on FLR(FP) application on the basis of
Family Life as a Spouse/Partner of a British Citizen or as a Parent of a
British child, in the 10-year route (not in the 5-year one).
If you are an Immigration Adviser
or a Solicitor please visit our immigration Training and CPD website: www.1st4immigration.com/training
This category is meant to
be used as exception from the Rules, so Family Life application involved
Exception section of the Appendix FM and a paragraph EX.1.
Why do we advise against
it?
Firstly, because we advise to use it as a ‘last resort’,
this is what it was designed for. It was not designed to be a routine
application to avoid having to meet one of the rules for an application without
exception (ie for an application ‘within the Rules’, such as FLR(M)). This category
should not be a starting point. It has to be also accepted (in the mind) that
this is a discretionary category, so decision will be made on the merit of each
application, rather than it being a certain way to remain the in the UK.
Secondly, one of the common enquiries we have is whether
there is a way around of having to apply for a Spouse visa outside the UK. For
example, a spouse is here as a visitor, such as from America or Australia
(non-visa nationals who can come for a visit without a visa stamp) and would
like to remain in the UK with their British/settled spouse. It is of course
understandable that it would be more convenient to make an application inside
the UK, rather than having to spend the time – and substantial money – on travelling
back to their country and waiting for a visa, in some cases 2-3 months
(although a Priority service is now available in many countries).
The Rules, namely Appendix FM, do not allow to
switch to a Spouse visa inside the UK. The appropriate way would be to apply
for a Spouse visa from the applicant’s country.
If the only way you’re considering to make an FLR(FP)
application is to avoid having to make an application from abroad – don’t do
it. Applying for a ‘proper’ entry visa would make more sense. Not only will
your application be ‘within the Rules’ (rather than discretionary), your visa
will be in the 5-year route, meaning you’d need to spend 5 years in the UK in
this category to qualify for permanent residency (as opposed to 10 years under
FLR(FP)).
If you do make an FLR(FP) application, it has an additional
condition of “insurmountable circumstances
Thirdly, another common situation is when the couple
have a British child but cannot meet the requirements of a Spouse visa, such as
the Financial Requirement of £18,600. Family Life application does allow to
waive it but it will only happen if such an application is approved in your
individual case, rather than it being a path for all applicants.
It is rather well-known that Exception paragraph EX.1
allows for exception for a parent of a British child. What is less known is
that the same paragraph has an additional requirement that “It would be unreasonable to expect the child to leave the UK”. In
some cases this may worth arguing, such as if a child has spent years at school
and is settled in the education system. However, it would be harder to argue if
the child is very young, not attending a school yet and has not yet learnt to
speak any language.
It is also less known that to qualify for FLR(FP) as a
parent, you have to be either a single parent or a divorced/separated parent with access rights – it is not for
parents (of the child in question) who are in a relationship with each other.
In this case we would advise to consider qualifying
under the Rules, such as meeting the Financial Requirement (such as getting additional
employment) and to applying under FLR(M) or, if the current visa has expired by
then, applying for an entry visa from abroad. Again, this would be ‘within the
Rules’ (rather than discretionary) and in the 5-year route.
We also have a separate post here on the difference between
5-year and 10-year routes: http://1st4immigration-visas.blogspot.co.uk/2015/08/what-is-difference-between-5-year-route.html
For an individual advice or to
make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com 