Other Options
OTHER OPTIONS FOR STAYING IN THE UK
If you don’t qualify under the UP 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.
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
unmarried partners 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 and visitors are not allowed to work.
In the past, it has been possible for non-visa nationals (those who
do not require prior entry clearance as visitors) to switch into
student status from within the UK. Subsequently this was
restricted to degree level study or above but such switching while
someone is here as a visitor is no longer possible. Visitors are
only allowed to study if they have specifically sought entry as
student visitors and there must be an intention to leave the UK
within 6 months of arrival.
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.
The immigration system is based on a 5 tier framework. Many specific
categories have been replaced under the
Points-Based System.
Overview.
The intention of this page is to give an outline of possibilities
which may arise for overseas partners while building up time
towards the 2 year cohabitation requirement for an unmarried
partners application. Those who are already in categories
"leading to settlement" such as holders of
Work Permits /
Tier 2 Skilled Workers
or HSMP /
Tier 1 (General) Migrants, Business persons,
Entrepreneurs
or Investors will usually also have the
option to continue with their existing status to achieve indefinite
leave to remain without relying on the sponsorship of the UK-based
partner.
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 as questions could be raised about your true
intentions when you arrived. In such circumstances specialist legal advice
is needed.
Categories within
the Points-Based System
(PBS):
Underpinning the government's new immigration system is a 5 tier
framework, the
Points-Based System, listed in full as follows:
- Tier 1 - highly skilled workers, e.g. scientists and entrepreneurs,
includes writers, composers and artists of some repute in their own country.
- Tier 2 - skilled workers with a job offer, e.g. teachers and
engineers. From end of November 2008.
- Tier 3 - low skilled workers filling specific temporary labour
shortages, for example construction workers for a particular project.
Currently suspended.
- Tier 4 - students, including postgraduate doctors and dentists. Not including student visitors.
- Tier 5 - youth mobility and temporary workers e.g. working
holidaymakers, musicians
coming to play in a concert, entertainers.
Tiers 3 and 5 are temporary routes and migrants in these will not be
able to switch out of them once they are in the United Kingdom. Those in
tiers 1, 2 and 4 will be eligible to switch between these tiers subject
to meeting the requirements of the tier they want to switch to. Tiers 1
and 2 will potentially lead to settlement if settlement requirements are
met at the time of that application.
Highly Skilled Migrant
Programme - Effective 30th June, 2008, this
was replaced by the
Tier 1 (General) Migrants category.
Tier 1 (General) Migrants - enables highly skilled
persons to come to the UK in order to seek work without
sponsorship from an employer. Points are awarded for age, past
qualifications, past earnings, UK experience (if applicable), and english language ability. Applications
can be made by entry clearance from abroad, but in-country switching is
possible from Tier 2, and
will be possible in certain cases from
Tier 4, student. Initial leave to enter/remain
is usually for 3 years with the ability to apply for an extension before
being eligible for settlement.
INF21 - UKBA (Guidance - Tier 1 (General)
Migrant)
Investors - High net worth
individuals who are in a position to make an investment in the UK of at
least £1 million.
INF 23 UKBA (Guidance - Tier 1, Investor)
Entrepreneurs - You can
apply as an entrepreneur if you have access to £200,000.
INF 24 - UKBA (Guidance - Tier 1, Entrepreneur)
Work
Permit Holders (sponsored skilled workers) - under
Tier 2 of the PBS. In
certain circumstances, employers can apply 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. More information can be found
on the
Working in the UK pages of the UK Border Agency website.
Shortage Occupation List and procedures
UKBA (Sponsored
skilled workers)
Students - Now under
Tier 4 of the PBS. UKBA outline
here.
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 provider is a registered sponsor on the Tier 4
register of approved education providers. You should check
this register, especially before parting with any money. In addition,
any course including a work placement must now be provided by a
university, college or training provider which has the status of 'Highly Trusted Sponsor'.
It is also sometimes possible to gain entry clearance as a
prospective student without a confirmed acceptance. Tier 4 of
the PBS now allows a maximum 3 years of study below degree level
(previously 2 years).
The course must be full time (15 hours of classroom-based study per
week) and you must show evidence that you can support yourself and pay the
fees for a full year without working, although once you start studying you are allowed to take
part-time employment during term time (20 hours per week for those at
degree level and above, 10 hours a week for others).
See the Tier 4 -
student financial requirements.
Major tightening of the rules for
student visas was announced on 7th February, 2010, intended to combat abuse of
student status - to be effective from 3rd March, 2010.
- For study below degree level, English to a higher level will be
required (Common European Framework of Reference (CEFR) - B1)
- Minimum level of English language course which can be studied
under
Tier 4 will be CEFR - B2, roughly the equivalent of GCSE
standard. [English courses at a lower level will still be accessible
for student visitors, overseas government-sponsored students, and
those on pre-degree english courses].*
- Students below degree level will only be able to work for 10
hours a week (reduced from 20 hrs) during term time.
- Those on courses which last under six months will not be allowed
to bring dependants into the country, while the dependants of
students on courses below degree level will not be allowed to work.
- There will be a ban on study below degree level if the course
includes a work placement - unless that course is being provided by
a university, college or training provider which has the status of 'Highly Trusted Sponsor'.
* Update: At July 2010, as a result of the ruling in the case of R
(English UK) v the Home Office, courses can still be offered at the
previous minimum level of CEFR - A2. The court ruled that
substantive changes to immigration policy cannot be made merely by
making changes to sponsor guidance notes, without placing the proposal
before parliament. The HO claimed that an increase in the minimum
course level would lead to a reduction in the numbers of those with
'unlawful intent' coming to the UK, but were unable to produce evidence
to substantiate this.
Commons statement 10.2.10
Statement of changes - HC367
Letter from UKBA to PBS
stakeholders
Students at
degree level and above can, in principle, switch to work permit employment after they
graduate (this was formally incorporated into the rules in 2002, but note
that this is still subject to the usual criteria for work permits). In addition, from 30th June, 2008 applications can be made
in the
Post-Study Work category of Tier 1 of the Points Based System (PBS).
Leave to remain in this category is for 2 years maximum with holders
expected to switch into the more permanent parts of the PBS within that
period. The International Graduates Scheme (formerly Science and
Engineering Graduates Scheme) has now been withdrawn but if you are
currently in the UK on that basis, you may be eligible to apply to
extend for up to a maximum of 2 years under the Post-Study Work
category. See
transitional arrangements.
INF 29 UKBA (PBS Tier 4, General and Child
Student)
Applying as an adult student UKBA
Guide to
student visa applications detailed guide published by UKCISA - (UK Council for
International Student Affairs).
Home Office letter to UKCOSA
advising that Entry Clearance Officers can waive the "intention to leave"
test for degree students. This has now been superseded, as the
"intention to leave", oddly perhaps, does not appear to be a requirement
for students under Tier 4 of the PBS. Historical interest only.
Youth Mobility Scheme -
The former Working holidaymaker scheme, now comes under
Tier 5,
open to those aged 18-30, and currently restricted to applicants from
Australia, Canada, Japan and New Zealand, plus British Overseas
Citizens, British Overseas Territories Citizens and British Nationals
(Overseas).
INF 28 - UKBA (Guidance - YMS)
Categories which are still outside
the Points-Based System (PBS):
Eastern Europeans/Accession State
nationals - Nationals of countries who joined the EU in 2004
came under the terms of the
Workers
Registration Scheme until 30th April, 2011. Nationals of the Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia or
Slovenia, no longer need to obtain permission to work in the UK.
Turkish Nationals -
There are specific arrangements for
Turkish business persons.
Bulgarian & Romanian
Nationals - The
Sectors Based Scheme
was introduced 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. Others
- There are still special rules for
sole representatives of overseas firms,
representatives of the news media, and
domestic servants .
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 by exercising your rights as a European Citizen. UKBA
-
UK Ancestry
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
could consider seeking advice from a specialist lawyer.
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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