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The UK Border Agency (UKBA) has always been very clear and unequivocal about any new immigration rules and policies but confusion can sometimes arise in respect of the effects of new rules/policies on the current / future circumstances of migrants residing in the UK. This confusion can lead to unwise decisions which can ultimately affect a migrant’s right to stay in the UK.
1. Switching into TIER 1
a) Tier 1 (Entrepreneur)
Nationals of non–EEA countries may apply to switch into Tier 1 (Entrepreneur) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:
- A Tier 1 (General) migrant
- A Tier 1 (Investor) migrant
- A Tier 1 (Post – Study) migrant
- A Tier 2 Migrant
- A Tier 4 student
- A work permit holder
- A Prospective Entrepreneur
Please note that no one else is permitted to switch into Tier 1 (Entrepreneur) whilst remaining in the UK and has to seek entry clearance from the country of origin.
b) Tier 1 (Investor)
Nationals of non–EEA countries may apply to switch into Tier 1 (Investor) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:
- A Tier 1 (General) migrant
- A Tier 1 (Entrepreneur) migrant
- A Tier 1 (Post – Study) migrant
- A Tier 2 migrant
- A Tier 4 student
- A work permit holder
Please note that no one else is permitted to switch to Tier 1 (Investor) while remaining in the UK and has to seek entry clearance from the country of origin.
c) Tier 1 (Post Study Work)
Nationals of non–EEA countries may apply to switch into Tier 1 (Post Study Work) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as a Tier 4 student .
Please note that no one else is permitted to switch to Tier 1 (PSW) while remaining in the UK and has to seek entry clearance from the country of origin.
2. Switching into Tier 2
a) Tier 2 (General), Tier 2 (Sportsperson) and Tier (Minister of Religion)
Nationals of non–EEA countries may apply to switch into Tier 2 (General) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:
- Tier 1 Migrant
- Tier 2 (General)
- Tier 2 (Sportsperson)
- Tier 2 (Minister of Religion)
- Tier 5 (Temporary Worker) in the Creative and Sporting sub-category, for a job as a professional footballer
- Member of Operational Ground Staff of an overseas owned Airline
- Minister of Religion, Missionary or Member of a Religious Order
- Qualifying work permit holder
- Representative of an overseas newspaper, News Agency or Broadcasting organization
- Representative of an Overseas Business
- Tier 4 Student
- Dependant partner of a Tier 4 migrant
If you are switching from a Tier 4 category, you must have successfully completed a course which lasted at least one academic year during your most recent period of Tier 4 leave
Please note that no one else is permitted to switch to Tier 2 (General) while remaining in the UK and has to seek entry clearance from the country of origin.
b) Tier 2 (Intra Company Transfer – Long Term Staff)
Nationals of non–EEA countries may apply to switch into Tier 2 (Intra Company Transfer) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:
- Tier 2 (Intra-Company Transfer: Established Staff)
- Tier 2 (Intra-Company Transfer), under the rules in place before 6 April 2010,
- Intra Company Transfer work permit holder (except multiple entry work permits).
Representative of an Overseas Business (this includes representatives of overseas media companies
Please note that no one else is permitted to switch to Tier 2 (Intra Company Transfer) while remaining in the UK and has to seek entry clearance from the country of origin.
3. Switching Into Tier 5
a) Tier 5 (Youth Mobility)
No one is permitted to switch to Tier 5 (Youth Mobility) while remaining in the UK. All the prospective applicants can only make such application at the British Diplomatic post in the country of their origin or where they have been legally residing for more than 6 months if the British Diplomatic post concerned is allowed to accept such applications.
b) Tier 5 (Creative & Sporting) Temporary Workers
Only a sports or entertainer visitor is entitled to apply to switch into the Tier 5 (Temporary worker) Creative and Sporting subcategory, provided they have a valid certificate of sponsorship issued to them before entering the UK. No one else is permitted to switch to this category while remaining in the UK.
c) Tier 5 (Religious Workers) Temporary Workers
No one is permitted to switch to Tier 5 (Religious Workers) while remaining in the UK. All the prospective applicants can only make such application at the British Diplomatic post in the country of their origin.
d) Tier 5 (Charity Workers) Temporary Workers
No one is permitted to switch to Tier 5 (Charity workers) while remaining in the UK. All the prospective applicants can only make such application at the British Diplomatic post in the country of their origin
e) Tier 5 (Government Authorised Exchange) Temporary Workers
A Qualifying Work Permit Holder is allowed to switch into the Tier 5 (Government Authorised Exchange) Temporary Worker sub-category, provided the applicant was previously issued with a work permit for the purpose of employment as a sponsored researcher and has been granted a COS to continue this employment
f) Tier 5 (International Agreements) Temporary Workers
A Qualifying Work Permit Holder is allowed to switch into the Tier 5 (International Agreements) Temporary Worker sub-category, provided his/her certificate of sponsorship shows that he/she is being sponsored in the Government Authorised Exchange sub-category and he/she will be continuing in employment with the same organisation.
An Overseas Government Employee (granted under paragraphs 160-162 and 164-165 of the Immigration Rules) is allowed to switch into the Tier 5 (International Agreements) Temporary Worker sub-category
Please note that all other switching into the Tier 5 (Temporary worker) subcategories is not permitted.
4. Switching Into Tier 4 Student
Nationals of non–EEA countries may apply to switch into a student visa without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:
- Tier 4 (Child) Student
- Prospective Student
- Work Permit Holder
- Tier 2 migrant
- Tier 1 (Post Study Work) migrant
Please note that no one else is permitted to switch to the Tier 4 student category while remaining in the UK - that includes the dependants of the above mentioned.
5. Switching into Spouse Visa
a) Spouse of a person present & Settled in the UK
Any person (above 21 years of age) who has initially been given entry clearance or leave to remain in any capacity, for more than 6 months is able to switch to a spouse of a person present and settled in the UK (provided he is already married). The only exception to this rule is a person having limited leave as a fiance visa or proposed civil partner, who can switch into a spouse visa after getting married in the UK.
Please note that visitors (although they might have a multiple entry visa valid for more than 6 months) are given leave to enter/remain in the UK for only 6 months and they cannot therefore switch into spouse visa whilst remaining in the UK.
b) Spouse of a person having limited leave to remain in the UK (Tier 2, Tier 4, Tier 5 or some other leave allowing dependants to join the migrant)
Spouses of persons having limited leave to remain in some other category are not allowed to switch into becoming dependent on their spouses having limited leave to remain in the UK (except where the Points Based Migrant has, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory on the basis of having met the requirement at paragraph 245ZQ(b)(ii)). They are required to seek entry clearance from outside the UK in order to enter and join their spouses. Although the marriage can take place in the UK, if the applicant is not able to switch status in the UK, he/she has to seek entry clearance from the British Diplomatic post in the country of origin.
c) Spouse (Family member) of an EEA national exercising his / her treaty rights in the UK
The switching rules regarding family members of EEA nationals exercising their treaty rights in the UK are more flexible, compared to family members of British citizens or of persons present and settled in the UK. In the light of the recent rulings of the appellate courts, there is no restriction on the non-EEA national of having any sort of leave to remain or entry clearance, to make such an application. People having visitors visas or even having no visa at all, can make an application to the UK Border Agency to obtain family member Residence Card in line with the fact that they are married to an EEA national who is exercising EC treaty rights in the UK.
However, care is required in making such applications, as they can be complex and time-consuming.
6. Switching into Unmarried Partner Visa
a) Unmarried Partner of a person present & Settled in the UK
Any person (above 21 years of age) who has resided for at least 2 years with a person present and settled in the UK in a relationship akin to marriage may apply for leave to remain in the UK as an unmarried partner. It is however necessary for that person to have had valid leave to remain in the UK throughout that time, if the relationship developed in the UK. There are also other relevant requirements inherent in this type of application that must be fulfilled and again it is advisable to seek professional advice when making this sort of application.
b) Unmarried Partners of a person having limited leave to remain in the UK (Tier 1, Tier 2, Tier 5 or some other leave allowing Unmarried Partners to join the migrant)
The switching rules are the same for unmarried partners as they are for spouses except they must also meet the following requirements:
(i) any previous marriage or civil partnership or similar relationship by the applicant or the Relevant Points Based System Migrant with another person must have permanently broken down,
(ii) the applicant and the Relevant Points Based System Migrant must not be so closely related that they would be prohibited from marrying each other in the UK, and
(iii) the applicant and the Relevant Points Based System Migrant must have been living together in a relationship similar to marriage or civil partnership for a period of at least 2 years.
c) Unmarried Partners of an EEA national exercising his / her treaty rights in the UK
Any person who has resided together (for minimum 2 years) with an EEA national exercising his / her treaty rights in the UK, in a relationship akin to marriage may apply for Family member Residence Card as an unmarried partner. The applicant should ideally have valid leave to remain but an application can still be made even if the applicant does not have a valid visa, depending on the circumstances of individuals. It is however, strongly advised to seek professional help in making such an application.
What services can we offer?
Switching (transferring) to another immigration category may be very straightforward and may also become very complex depending on the individual`s circumstances and the sponsor`s immigration status. It is therefore strongly advised to seek professional advice and services when seeking to change or vary one’s status inside the UK.
- We can advise on the procedure of making applications on behalf of our clients to switch to the desired immigration category.
- We can assess the applicant `s circumstances, the sponsor`s credentials and advise on the likelihood of getting the application approved.
- We can advise applicants on the documents/ evidence required for switching and settlement applications.
- We can lodge an appeal in cases of refusal of an application and represent our clients at the Immigration and Asylum Chamber.
Whatever the case, we are here to help, assist, advise and represent our clients in relation to any aspect of the immigration matters.
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