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Application for right to remain in UK after long term visa expires

(13 Posts)
FlouncingInAWinterWonderland Fri 06-Jan-17 21:50:57

I have a lovely intelligent, well educated friend whose husband is in professional, well paid (but under £155,000) employment on a tier 2 visa. Their current visa is long stay but just over four years. His employers are a large corporate and they feel would probably allow him to remain employed by them in the UK.

We were casually discussing this earlier and my laypersons understanding was you can apply to reside after you've been here for five years and if you're in employment.

So my question is, if he can get his tier 2 visa extended to the maximum 5 years 1 month when and how do they apply to stay and is there a typical time frame it takes?

If they wait for five years to apply then they'd risk overstaying and being jobless/ homeless. There must be a logical way that this is managed.

GreenGoblin0 Sun 08-Jan-17 11:19:28

assuming they manage to extend their currrent visas and then complete 5 yeaes..they apply before their visa expires (no more than 28 days before they have completed the required 5 years) and they will continue to remain here lawfully and be able to work etc whilst awaiting a decision. the requirements are not as simple as being in employment but given that they need to extend their visas first they must be more than a year off from this - requirements are subject to change. suggest they seek advice themselves closer to the time from immigration solicitor or advisor.

Notsoaccidentproneanymore Sun 08-Jan-17 11:29:09

Your friends dh needs to apply for sn extension about 3 months before his leave runs out. If he meets the Immigration Rules he'll be granted the amount of time they state.

If he meets the 5 year rule, then he can apply for that as soon as he reaches that point. Though your friend should read the Immigration Rules, as the requirements for 5 years differ from the Tier 2 route.

As long as your friend is sensible and can read the Rules and the guidance, she shouldn't need a Solicitor etc.

Make sure every piece of evidence stated in the Rules is supplied, and the appl should only take a few weeks.

FlouncingInAWinterWonderland Sun 08-Jan-17 16:56:11

Thank you so much for the responses.

The solicitors costs are so incredibly expensive and it did appear that as people who have a good level of intelligence and command of English that they should be able to work out the correct path forwards, then use a solicitor to confirm the validity of that path if necessary.

They're just finding their feet with finding information online and interpreting what is fact and which companies are just after their money.

LauraMipsum Mon 09-Jan-17 11:10:20

I would seriously not attempt to navigate the Rules and Guidance without the assistance of a competent advisor. I'm an immigration specialist and the Court of Appeal have called the Rules "byzantine" - they're not wrong. Leaving out just one of the so-called specified documents will mean it is refused and there is no negotiating with them at all. Even if it is absolutely bloody obvious that he's been employed for the right length of time.

There is no longer a right of appeal against a refusal, just an "administrative review" that is hopeless. If he's with a big corporate he may find that the company will pay his legal fees.

Is he a Tier 2 (Intra Company Transfer) Migrant or a Tier 2 (General) Migrant? ICT is no longer a route to settlement, unless their initial grant was before 2010.

Also applying 3months in advance is poor advice - for an extension you are only meant to apply 28 days in advance.

FlouncingInAWinterWonderland Mon 09-Jan-17 17:56:57

It's a tier 2 intra company transfer. Does that mean that the time residing here doesn't count towards the five years?

I'd read this tier-2-intra company transfer visa info and it looked possible.

I think what they'd like to get their heads around is what's possible, then go to the company and say this is what we'd like to do. If they can scope what's plausible without being hundreds/ thousands of pounds down that would be great. They feel the company will probably play ball and I'm sure they would be in agreement that pulling the end legal bit together using trained professionals would appear to be very good advise.

LauraMipsum Tue 10-Jan-17 10:48:56

Sadly it means that if the visa was granted after 2010, he can't settle. Look at that guidance about halfway down:

^"To qualify, you must have had at least one of these visas in the 5 years:

Tier 2 (Intra-Company Transfer) issued under the Immigration Rules in place before 6 April 2010^

So if he was granted Tier 2 ICT status before April 2010, he can settle, but if it was after April 2010, he can't.

FlouncingInAWinterWonderland Tue 10-Jan-17 18:38:59

LauraMipsum Thank you for coming back to this and explaining further.

So the Tier 2 ITC stay doesn't count towards a stay because its post 2011.

Are there any potential avenues to be explored. If he's in well paid stable employment with an employer who's prepared to sponsor him?

If they did have another child in the UK would that change anything (very unlikely BTW for various reasons personal to them).

Rainbowshine Tue 10-Jan-17 18:43:01

They need to research Tier 1 visas, but the criteria is strict and they will need to prove that they meet all of them to the hilt. I would concur with others that legal advice is best, and I am responsible for work visas in my job so deal with them everyday. The rules keep changing too.

SingaSong12 Tue 10-Jan-17 18:46:13

As PP says your friend needs to get advice from a qualified professional. There are laws about qualifications needed to provide Immigration law advice(not saying anyone here has done anything wrong). Also the law is constantly changing. The adviser will need to know all the details of the circumstances and can advise on dates to take action.

SwimmingMom Tue 10-Jan-17 19:35:15

Tier 2 ICT visa offers no route to settlement at all. I am surrounded by people in the same boat! The only route for them to 'settle' would be if the 'dependent' person out of both of them gets a job with an employer who is able to provide him/her with a Tier2 General visa. This visa allows for settlement at 5 years.

LauraMipsum Tue 10-Jan-17 20:33:04

Flouncing the ICT visa is a bit of a dead end unfortunately. However there are other routes within the Points Based System.

He can't apply for a Tier 2 (General) visa with the same employer because the requirements for leave to remain as a Tier 2 (General) include at para 245HD(c):

"(c) An applicant who has, or was last granted leave as a Tier 2 (Intra-Company Transfer) Migrant must:
(i) have previously had leave as a Tier 2 (Intra-Company Transfer) Migrant under the Rules in place before 6 April 2010, or in the Established Staff sub-category under the Rules in place before 6 April 2011,
(ii) not have been granted entry clearance in this or any other route since the grant of leave referred to in (i) above; and
(iii) not be applying to work for the same Sponsor as sponsored him when he was last granted leave."

So he can only switch into the Tier 2 (General) route if he is going to a different employer AND he was in the Established Staff category before April 2011.

He could theoretically, if he doesn't mind a bit of a sabbatical OR is getting a phenomenal pay-rise, leave the UK and return with entry clearance (i.e. a new visa from abroad, which is different to switching in-country) as a Tier 2 (General) under para 245HB(g):

"(g) Except where the period of engagement recorded by the Certificate of Sponsorship used in support of such entry clearance or leave to remain was granted for a period of three months or less, the applicant must not have had entry clearance or leave to remain as a Tier 2 Migrant at any time during the 12 months immediately before the date of the application, unless the applicant:
(i) was not in the UK with leave as a Tier 2 Migrant during this period, and provides evidence to show this, or
(ii) will be paid a gross annual salary (as recorded by the Certificate of Sponsorship Checking Service entry, and including such allowances as are specified as acceptable for this purpose in paragraph 79 of Appendix A) of £155,300 per year or higher."

So he can come back as a Tier 2 (General) but only if he is away for 12 months, or if he is being paid that amount or more.

Other options are:

* Can his wife become the main applicant instead? If she can get sponsored to be a Tier 2 (General) migrant he can switch to being the dependent.

* Are they entitled to any form of ancestry visa? It's amazing how many people are entitled and don't know about it!

* Is he eligible to become a Tier 1 migrant? An investor is out of the question for most people (£2m investment in the UK), but he could possibly manage the criteria for a Tier 1 Entrepreneur? If he's not interested and wishes to remain in his current job, but they have the funds to pursue this avenue, can his wife apply for a Tier 1 Entrepreneur visa and he can be her dependent?

* Do either of them want to become Tier 4 students? Some people in this position discover a latent urge towards a PhD.

* Can he become a Tier 5 Temporary Worker for 12 months (essentially a sabbatical) until he is eligible to apply for Tier 2 (General) leave to remain?

[as an aside: this is why I get ragey when Kippers blithely tell me that what we really need in this country is a Points Based System....]

FlouncingInAWinterWonderland Tue 10-Jan-17 20:52:00

Thank you all. Tier 1 may be an option

LauraMipsum that's fantastic. It's exactly the sort of stuff I hoped to be able to direct them towards. They can now think through the options and work out a rough plan of action and go run through their plan with a specialist to make sure all boxes are ticked.

She could do a PHD she's operated at a senior level in employment and got a good degree. She's bored senseless at present her child is now at school and the baby break that this was meant to be, to extend family and be around for them has had a sad path. I wonder if the tier 2 general option is also an option...

Thank you. Suddenly lots of options and they can have plans again.

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