UK family visas: when can you “switch”?

There have been a lot of cases in the media recently highlighting the unfairness of the UK’s Immigration Rules for families. A quick selection includes:

Meanwhile we await the Supreme Court’s decision in the “MM” case against the £18,600 minimum income requirement for partners, and the start of High Court proceedings against the “Catch-22” rules for adult dependent relatives.

However, even people who would otherwise meet all the relationship and financial requirement are often caught out by another peculiarity of the Immigration Rules: the rule against “switching”.

Paragraph E-LTRP.2.1 effectively says that “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…”

This means that anyone who comes to the UK under the rules that apply to visitors must leave the UK and reapply for a “settlement” visa from their home country if they want to live here permanently with their family.

On the other hand, people who are in the UK with longer-term permission (for example, Tier 4 students or Tier 2 employees) can make an application in the UK to switch to partner status.

Many people who are refused permission to stay in the UK as a spouse, civil partner or unmarried partner (all falling under the definition of “partner” in the Immigration Rules) have arrived as visitors and then applied to stay with their families. This is often a particular problem for “non-visa nationals”: people whose nationality allows them to visit the UK visa-free, such as American, Australian or Japanese nationals. It can also catch out people who have previously visited the UK many times and hold a “long-term” visit visa. If you are used to travelling to the UK without formalities, it can be an unpleasant surprise to learn that you cannot switch to partner status from inside the UK.

The Home Office website is not completely clear about the prohibition on switching. I am told by many people that, knowing that they could travel to the UK visa-free, they searched the website only for options about what to do once here. The no-switching rule for visitors is mentioned briefly under the “eligibility” section, but it’s easily missed.

What are the options once you are in the UK?

  • If it is at all possible, consider making your application from overseas. It will be expensive, but considerably less expensive and time-consuming than appealing against a refusal using the over-burdened and slow Tribunals system.
  • If you do have to apply, provide strong evidence about why you cannot make the application from overseas. Be prepared for your application to be refused in all but the most compelling circumstances.
  • Your case is stronger if you have British children in the UK. However, it is apparent from many recent cases that the Home Office has no problem in finding that it is “not contrary to children’s best interests” to be separated from a parent while they apply for a visa from outside the UK.
  • If your application is refused, you should have a right of appeal. However, hearings in the Tribunal can take up to a year to conclude even if you are successful. Your life could be in limbo while proceedings continue.

If you have a question about switching into a different immigration category, or about applying to stay in the UK with your family, please contact me.

 

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