Other Options
OTHER OPTIONS FOR STAYING IN THE UK
If you don’t qualify under the rule because you do not have the
required two years the most important thing is to find a way to stay
together until you reach the two-year point. It is extremely important not
to separate for any lengthy period of time.
The crucial thing to remember is to ensure that you document your
relationship throughout so that when you reach the two-year period you
have enough evidence to prove that you have been in the relationship as
claimed.
What other options are there for us staying together in the UK?
There are numerous categories in the immigration rules that allow
people to come to the UK for particular reasons. If you qualify under one
of these categories there is no reason why you cannot come to the UK for
that purpose, living with your partner during that time. Holders of work
permits, ancestry visas, HSMPs and business persons can in most cases
apply in their own right for settlement after 5 years.
Most of the other categories, however, require the intention to
return home. So long as you have
that intention at the time of entry there is no reason why you should not
apply. It is sometimes possible for such temporary visa holders to
apply to settle as unmarried partners or
civil partners from within the UK. You would not, however,
normally be allowed to do this if you have made a recent reentry to the UK
on the temporary visa. In such circumstances specialist legal advice
is needed.
Student - The course
must provided by either a) a publicly-funded institution of further or
higher education; or b) a "bona fide" private education institution.
The immigration rules and the Diplomatic Service Procedures (DSPs) are
not specific in their guidance as to what is acceptable, noting those accredited by
The British
Council, BAC,
ABLS,
English UK as examples of "bona fide"
institutions.
See:
Diplomatic Service Procedures:
Chapter 12 & Annex
12.3
From 1 January 2005, however, it is vital to be aware that leave to
enter or remain in the UK as a student will not be granted unless the
education/training provider is on the
register of
approved providers which has been
developed by the Department for Education & Skills (DfES). You
should check this register, especially before parting with any money.
The course must be full time (15 hours of classroom-based study per week) and you must be able to support yourself and pay the
fees without working although once you start studying you are able to take
part-time employment during term time (20 hours per week) and full time
employment during vacations(40 hours per week). It is also sometimes
possible to gain entry clearance as a prospective student without a
confirmed acceptance. There is also now a provision for extending a
student visa for those resitting examinations or writing up a thesis and
for students unions sabbatical officers.
From October 2001, a concession was introduced whereby students at
degree level and above can switch to work permit employment after they
graduate and this was formally incorporated into the
rules in 2002.
New Immigration Rules affecting those on temporary
visas became effective on 1st.Oct 2004: Students below degree level are
to be allowed to stay for a maximum of 2 years. Switching
in-country from another temporary visa (such as visitor) to student
status is to be permitted at degree level or above only. Switching into
work permit employment or the highly skilled migrant programme to be
prevented except by those already permitted in the rules such as
doctors, dentists and graduates.
Extending as a student - BIA page
A very detailed
guide to
student visa applications is published by UKCISA - (UK Council for
International Student Affairs).
See also
Home Office letter to UKCOSA
advising that Entry Clearance Officers can waive the "intention to leave"
test for degree students.
Working Holidaymakers
- The scheme remains restricted to nationals of Commonwealth
countries, between the ages of 17-30 inclusive. Although working
restrictions were removed in 2003, as from February 2005, the 12 month
limit on working was reimposed and switching into work permit employment
is now only allowed for shortage occupations. WH employment in the UK
gained after 20 June 2003 can count towards the skill criteria of the
work permit scheme. Applicants must be unmarried or taking the working
holiday with their spouse who must also qualify. This requirement may
also apply to Civil Partners when the CP legislation comes into force on
December 5th, 2005. Applications for
working holidaymaker status must be submitted to a British diplomatic post
outside the UK (although those initially granted leave to enter the UK for
less than two years can apply to the Home Office to extend their
permission to be in the UK to the maximum period). The requirements
to show that the applicant can support him or herself without recourse to
public funds and has the intention to leave the UK at the end of the visa
remain.
Work
Permit Holders - Work Permits are administered
by a division of the IND called Work Permits (UK) based in Sheffield. In
certain circumstances, employers can be given permission to employ non-European Union Citizens for
specific jobs. The job needs to be one at a senior level or where there
is a skill shortage in the
UK/EU. If you have a particular skill it may be
worth finding out from a solicitor who specialises in work permits
whether you are likely to qualify. There are various special schemes for
entertainers, hotel and catering, training and work
experience, IT
specialists, innovators and entrepreneurs. More information can be found
on the
Working in the UK pages of the Border & Immigration Agency website. Work Permits (UK) introduced the
Sectors Based Scheme on 30 May 2003. From
1st Jan 2007 this was restricted to Bulgarian & Romanian nationals in the food
manufacturing (fish, meat and mushroom processing) sectors. A quota system
applies and the age limits are 18 - 30 yrs.
Businesspersons
and Investors - You can apply if you have access to a
large amount of money (£200,000 to set up a business or £1 million to
invest).
Occupations - specific
Categories - There are special rules for
postgraduate doctors and dentists, student nurses, teachers and language
assistants under approved exchange schemes, representatives of newspapers,
news agencies and broadcasting organisations, sole representatives of
overseas companies, overseas government employees, ministers of religion,
missionaries and members of religious orders, airport-based operational
ground staff of overseas owned airlines, and private servants in
diplomatic households. Writers, composers and artists of some repute in
their own country also have their own special category.
Innovators
-
Designed to attract and select outstanding entrepreneurs whose
business proposals will result in exceptional economic benefit to the UK.
It is open to applicants with plans for establishing a business in any
sector but is especially tailored to those entrepreneurs who plan to
exploit the economic opportunities of the rapidly developing science and
technology based sectors, including businesses specialising in e-commerce.
There are three minimum requirements which if met will entitle the
application to be selectively assessed against a points scoring system
(points given for personal characteristics, quality of business plan and
economic benefits to the UK). The minimum requirements are that the
business will create two full-time jobs, the applicant will have at least
5% shareholding and will be able to support themselves without working
other than in the business. Initially a pilot scheme, the innovators
category was placed in the Immigration rules from April 1st., 2003.
Details
Highly Skilled Migrant
Programme - This enables highly skilled
persons to come to the UK in order to seek work without
sponsorship from an employer. Points are awarded for past
qualifications, past earnings, previous work experience and also for
significant or exceptional achievement. From 31st
October, 2003:
- the threshold for qualification
was reduced to 65 points.
- a young person assessment was
introduced for those under 28.
- an allowance of 10 points was
introduced for those with a skilled partner.
Following the changes, those over 28 can now qualify
with a degree and 10 years work experience (to include 5 yrs at senior or
specialist level) and those under 28 can qualify with a degree and 4 years
work experience (to include 1 year at senior or specialist level).
Applications are normally by entry clearance, but in-country switching
is possible in certain categories. Initial leave to enter/remain is for
12 months with the ability to apply for a 4 year extension before being
eligible for settlement. There is now a visa application fee of £150 for all
new applications although nationals of EU accession countries are
exempt. See
Working in
the UK page of the BIA website for more details of HSMP and application forms.
Eastern Europeans
- Nationals of the countries who joined the EU in 2004can work
in UK under the terms of the
Workers
Registration Scheme Persons from Bulgaria & Romania who set
themselves up in self-employment have their own special
category.
Immigration Rules
(222-223a)
Ancestry - It is always
worth checking your ancestry. If you are from a Commonwealth country and
have a UK born grandparent you can come to the UK to live and work for 5 years
(previously 4yrs) and then obtain residency. If you have ancestry from a
European Union Member State it is well worth checking whether you qualify
for citizenship of that country. If you do, you can then come and live and
work in the UK as a European Citizen.
It is not possible in this document to advise in detail concerning all
the above categories. If you think you may qualify under one of them you
should seek legal advice. More information can be found on the Home Office
website:
Immigration
Rules - Category Index
Can
we build up the two years by simply visiting each other?
In theory there is nothing wrong with spending six months in the UK
visiting your partner and then returning home and your partner visiting
you. The instructions to Home Office caseworkers state that where a couple
have been living together for the preceding two years but have been
dividing their time between countries and may for example have used the
"visitor" category then this will be sufficient to meet the
requirement.
If you do want to visit the UK regularly and are concerned about being
refused entry at the airport you may wish to consider applying for a multiple
entry visitors visa from the British Diplomatic Post in your own
country. Do remember, however, that even if you hold a multiple
entry visa, you should not normally be in the UK as a visitor for more
than 6 months in any year.
What if there are no
options?
There is no requirement to have lived together for 2 years when making
an application on the basis of civil partnership. Please refer to
the civil partnership guide for more
details. If there is some reason why you are not able or willing to
enter into a civil partnership and you do not meet the requirements
of the immigration rules for unmarried partners, you could apply on an exceptional basis for the two year requirement to
be waived on the grounds that you have no other option and to separate you
would breach your human rights – Article 8 of the European Convention on
Human Rights (ECHR) gives you a right to a private life. You must take
specialist legal advice if you are planning to make such an
application, but the circumstances would need to be exceptional.
Being "not ready for civil partnership" would not form the basis of
such an application.
Is
there any other country where we could live together?
If one of the partners is British or another EU nationality, the couple
may be able to go to live in certain other EU countries who themselves
recognise same sex relationships. If the foreign partner's home country
recognises same-sex relationships for immigration purposes, living in
that country (even if on a temporary basis to build up cohabitation
time) would clearly be an option. More here.
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