CASE STUDIES

Question:
I entered on a three month student visa valid till 30th of August 2007. I completed my English language course and got enrolled in a one – year English language course and submitted my application for extension of my student visa. The Home office has now refused my application and asked me to leave the UK as soon as possible. What can I do?

Answer:
The Home office has probably done some mistake and considered your visa as a student visitor visa. Please note that the new rules of student visitor visa are enforced only from 01st of Sept. 2007 and any visas obtained earlier can be extended. You must make further representations to the Home office giving full explanation to the Home office. It is however more advisable if you could engage the services of a competent immigration consultant.

Question:
I came to the UK as a visitor in 1998 and got married to a British Citizen in 2000 and made an application to the Home office for a spouse visa. The Home office took three years to consider my application and finally gave me visa for three years. When can I apply for permanent residence in the UK?

Answer:
Please note that the home office did not issue you a spouse visa (two years visa) rather they have given you discretionary leave on the basis of your family life in the UK. You would be required to apply for a further three years discretionary leave before the completion of the current leave and at the end of six years, you can apply for permanent residence in the UK. The reason that they have given you discretionary leave is that you did not have any visa at the time of your application.

Question:
My wife came to the UK in March 2007 on an “Indefinite Leave to Enter” visa”(issued based on the fact that we had been married for more than 5 years living abroad). How long must we wait before she can apply for citizenship?

Answer:
It depends on your citizenship, if you are a British Citizen she can apply for naturalization on completing three years of stay in the UK and fulfilling other requisites of this application. If you are not a British Citizen, then she would have to wait for five years to make this application.

Question:
I am on a 5 year work permit in the UK, my wife is on a dependent visa, we are expecting our 1st baby in May 2008. I want to invite my parents to come to the UK. Can you please tell me whether I need to apply for the dependent visa or a visit visa & for how long they can stay in UK?

Answer:
Please note that you cannot invite your parents on a dependant visa as you do not have settled status in the UK. However, you can invite them on a visit visa and the maximum time that they can stay in the UK in one go is 6 months.  

Question:
I have been a student in the UK since 2002 and am currently doing my Bachelors degree. I am aware of the implementation of the new legislation / rules, regarding long-term settlement as a student. However, I have fulfilled the five (5) years requirement to apply for indefinite leave to remain under the student category, before the new rule was enforced on the 1st of July 2007. Can I still make an application for indefinite leave to remain under the old rules, since I have fulfilled the requirement to do so before the new rule was enforced. I have been residing in the UK for more than seven years. Recently took and pass the Life in the UK test first attempt. Thank you for your help.

Answer:
You are mistaken on the fact that students can apply for ILR on completing their five years stay in the UK. Five year category is for work permit holders, HSMP, Business visas, Investors, Innovators, Sole Representation and other employment related immigration category.

If you continue to be a student, you can only qualify for settlement once you have completed your 10 years of legal and continuous residence in the UK.

Question:
I am an international student and now have done a Muslim marriage with my fiancée who is a British Citizen. Is it possible for me to obtain visa from here?

Answer:
Please note that apart from a Church marriage, any other religious ceremonies are not considered as a valid marriage in the UK. You need to obtain permission from the Home office to get married and once the permission is granted, then you can give notice to the marriage registrar to get married in the UK. The Muslim marriage that you have done is therefore not a valid marriage in the UK and you cannot make any application on that basis.

Question:
I have been living in the UK since August 1998 as a student and now have recently completed my PhD. I have already spent 9 years & 3 months, I heard that if I stay for 10 years I would be eligible for ILR / permanent residency status. My student visa is expiring at the beginning of December 2007. Can I combine the 9 years + in order to complete my 10th year if I apply for IGS visa or HSMP or a student visa on the basis of a new course (ACCA)?

Answer:
Please note that by law you require to complete 10 years of legal and continuous residence in the UK to qualify for ILR. It can be a combination of any visas. The most appropriate advice for you is to apply for IGS and on completion of 10 complete years, you can apply for ILR.

Question:
Dear Sirs, I am a 33-year-old Canadian citizen. I am interested in studying, and/or working in the UK. I heard that there are exceptions made under special circumstances for citizens of the Commonwealth to qualify for the working-holiday permit even after the age of 27. If this is true, could you tell me what these circumstances are?

Answer:
Please note that the maximum age limit is 30 years and not 27 years and there is no concession for commonwealth citizens to be able to apply for WHM visa after the age of 30 years.

Question:
I am from Ukraine and got married with an EEA national who has been working in the UK since 2005. I got married in Sept. 2006 and entered the UK in June 2007 on a family permit. My husband has become quite abusive and has physically assaulted me twice. My family permit is expiring on 30th of Nov. 2007. Can I apply an application on the basis of domestic violence?

Answer:
If you were married to a British citizen or a person present and settled in the UK, then our answer would be yes, you could apply for permanent settlement on the basis of domestic violence. Although spouses of EEA nationals can also seek a remedy on the basis of being a victim of domestic violence but there are some requisites that you need to comply with, which are:

• The marriage must have lasted for more than three years.
• You must have resided with your EEA national for at least 1 year out of those three years
• Your EEA spouse must be exercising his treaty rights in the UK
• There must be some evidence of the occurrence of the domestic violence
• You must qualify as a worker or as a self employed person to establish that you would not become a burden on public funds
• The domestic violence must be the reason of the breakdown of marriage and divorce proceedings must have commenced.

In your case, you only got married in Sept. 2006 and you cannot therefore make any application on that basis.

Question:
I am completing my 10 years of stay in the UK on 20th of Nov. 2007 but the Home office has refused my application for further leave to remain as a student that I made 4 months ago. They have given a right of appeal which must be exercised within 10 working days.  Can I apply for my ILR on the basis of 10 years stay in the UK?

Answer:
As you have already made an application for a student visa, you cannot make any new application at this stage but are allowed to vary your leave to remain application to include the grounds of 10 years of legal residence in the UK in appeal. It is however strongly advised that you should take independent professional advice of a competent immigration consultant.

Question:
I have lived here as a dependant of a highly skilled migrant for three years. During that time I have completed my degree level education from London. Can I switch to the International graduate scheme?

Answer:
Please note that you cannot switch while remaining in the UK because one of the requisites of this application is that you must have been on a student visa to switch to IGS while remaining in the UK. However, you can seek entry clearance from outside the UK but you need to fulfil all the other requisites as well. Please note that if your wife (highly skilled migrant) wishes to become your dependant in your IGS visa application, then she would also be able to do it from outside the UK.

Question:
Can my wife get an exemption from life in the UK test? She is illiterate and cannot read, write or understand English language?

Answer:
Please note that only following persons are exempt from this test:

• Persons of age of more than 65 years.
• Persons of age of less than 16 years

• Applicants who qualify for ILR under the domestic violence provisions of the rules.
• Foreign and commonwealth citizens on discharge from HM Forces (including Ghurkas where the qualifying period has been met)
• Spouses of foreign and commonwealth citizens on discharge from HM Forces (including Ghurkhas)
• Bereaved Spouses/Bereaved Unmarried Partners/Bereaved Civil Partners

• Parents/Grandparents/Other Dependant Relatives - applications made under Paragraph 317 of the Immigration Rules.
• Retired Persons of Independent Means.
• Spouses/ Civil Partners/ unmarried / same sex Partners of British citizens or persons settled in the UK  who are permanent members of HM Diplomatic Service; staff members of the British Council on a tour of duty abroad; and staff members of the Department for International Development
• European Nationals making an application under the FMOP provisions (not Immigration Rules based)
• Turkish ECAA nationals.

You cannot claim exemption because of illiteracy. If she is on a spouse visa then the best course of action would be to apply for further leave to remain application and ask your wife to attend English language courses to be able to pass the life in the UK test.

Please note that the above questions and answers have been prepared from the emails, telephone calls and actual cases that we have dealt and have therefore not provided any names and addresses in order to keep cleint confidentiality.