Switching from A Tier 2 to a Spouse Visa

Jun 30, 2020

If you entered the UK on a Tier 2 Visa and have subsequently met and married a settled or UK citizen or even entered a partnership and have a Brutish born child you may have options on changing your visa category to a spouse visa.

Switching from a tier 2 visa

As a tier 2 visa holder, if you have a British partner/spouse and/or child, you are eligible to switch to another visa type.

If you have already been in the UK for 5 years or close to 5 years as a Tier 2 visa holder you may really need to consider if switching is right for you.

Applying for ILR after five years in the UK on a tier 2 visa

If you have already been working in the UK for five or more years and have been absent from the country for no more than 180 days in any consecutive 12-month period during that time, you may be eligible to apply for ILR. You will also need to prove that you meet the minimum income requirement as follows:

  • £36,200, if applying for ILR on or after 6 April 2020
  • £36,900, if applying for ILR on or after 6 April 2021
  • £37,900, if applying for ILR on or after 6 April 2022

In addition, you will need to meet the English language requirement and pass the ‘Life in the UK test.

Switch to a family visa – Partner or spouse

Another option is to apply for a family visa as a spouse or partner and in some circumstances as a parent. Once you switch to a spouse r partner route there are no restrictions on your ability to work or who you work for. You can also apply to switch to a family visa while already in the UK, meaning you will not need to leave your partner and child.

The downside of switching from a tier 2 to a family visa, however, is that the time you have accrued in the UK towards ILR will be reset. Any accrued years as a Tier 2 Visa holder will not be counted towards your 5 years to ILR . The time starts again from when you are granted a spouse, partner or parent visa.

To switch from a tier 2 visa to a spouse/partner family visa, you will need to meet at least one of the following requirements:

  • be in a civil partnership or marriage recognised in the UK
  • have been living with your partner/spouse for at least two years when you apply
  • meet the English language requirement
  • have the financial income resources to support yourself and your dependents

Crucially, if you do not meet one of these requirements, you may still be eligible if:

  • you have a child in the UK who is a British citizen or has lived in the UK for seven years, and it would be unreasonable for them to leave the UK
  • there would be very significant difficulties for you and your partner if you lived together as a couple outside the UK that could not be overcome
  • it would breach your human rights to stop you coming to the UK or make you leave

Under the first of these requirements, if you are ineligible to apply for a family visa based on your relationship with your child’s partner, you may be able to apply if your child is registered as a British citizen.

Switch to a family visa – Parent

You can apply for a family visa as a parent, but the current immigration rules make it clear that if you are eligible to apply as a partner, you must do so. To apply for a family visa as a parent of a British child, the child must be either under 18 when you apply, or have been under 18 when you were first granted leave to be in the UK and currently not living an independent life (i.e. they still live at home, are not married and do not have children). It is important under this visa route that you have sole or shared parental responsibility for your British child. As part of the application process, you may need to provide evidence that you are currently playing an active role in your child’s life. Evidence can include a court order of contact or shared residence.

The Home Office will also verify that you meet the English language requirement and can support yourself in the UK without seeking access to public funds.

You may be eligible for a fee waiver for the parent route if there are exceptional circumstances as to why you are unable to pay the Home Office fees.

If your application for a family visa (partner or parent) is successful, you will be given permission to remain in the UK for 2.5 years, after which you can then apply to extend for a further 2.5 years. At this point, you will then be able to apply for ILR.

If you are unsure of the most preferable option for you and your individual circumstances contact Bermeet.chhokar@herrington-carmichael.com to arrange an informal chat.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter. 

 

 

 

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