Can Uk Visitor Visa Be Changed Within The Uk Under Special Circumstances?

[xieng]

Any help with this would be greatly appreciated

UK national returns to the UK for a visit with his wife and 2 kids, Wife has visitor visa, kids are British, UK national is diagnosed with advanced cancer and is undergoing serious treatment. Seriously worried about family being separated at a time when much support is needed. Can his wife's visa status be changed within the UK under special circumstances?

[David48]

Has your friend, the UK national, already returned to the UK ... or is intending to do that journey soon?

[7by7]

I'm afraid that the answer is no; a UK visit visa cannot be switched to another category.

However, in exceptional circumstances the period of the visa can be extended. The first step in the process is to contact the

Immigration enquiry bureau

0870 606 7766

UK Border Agency, Lunar House, 40 Wellesley Road, Croydon, Surrey CR9 2BY

See Can visitors change the conditions of their stay in the United Kingdom?

[xieng]

Thank you 7by7.

This is very worrying indeed. The children are now settled in school in the UK, apart from having the very slimmest chance of beating the cancer my friend is extremely worried about his family. How can she leave the UK and then meet the criteria for a settlement visa? I'm aware that the processing time for such visas are longer now, how could this be achieved at a time when he and the children need her support? As my friend was the bread-winner working in her country, should she be expected to take the children back where she has no way of supporting them?

An impossible situation, I hope his MP can make a difference, is that possible?

[Eff1n2ret]

I wouldn't set much store either by asking the IEB or contacting your MP. However, there might be a chance of establishing a 'Chen' type application under the EEA Regulations rather than trying to appy outside the Immigration Rules, which now seems to be very much under question since the recent changes in those Rules.

The 'Chen' judgement established the right of non-EEA carers of British children to remain in the UK. This right has now been enshrined in the latest changes to the 2006 EEA Regulations - I don't propose to try and reproduce the relevant bits in this post as they are a bit lengthy, but I would recommend a read of Para 9 - "New regulation 15A (derivative right of residence)" in this document:-

http://www.legislati.../2012/1547/made

Effectively, a "derivative right of residence" lasts only as long as the conditions by which it is gained are fulfilled, and can't lead to Permanent Residence, but that might fill the bill in this case. The OP has said that the children are now in education in the UK, also that the lady was the breadwinner in Thailand, therefore it might well be feasible to establish that she is the "primary carer" of the children, particularly as the father may well be in no condition to fulfil this role.

I wouldn't waste time with the Enquiry Bureau or trying to get an MP interested - I would go and see an OISC Immigration Advisor qualified to Level 2 or 3, or a good immigration solicitor who is familiar with applications under the EEA Regulations and how the recent changes affect this case.

[xieng]

I wouldn't set much store either by asking the IEB or contacting your MP. However, there might be a chance of establishing a 'Chen' type application under the EEA Regulations rather than trying to appy outside the Immigration Rules, which now seems to be very much under question since the recent changes in those Rules.

The 'Chen' judgement established the right of non-EEA carers of British children to remain in the UK. This right has now been enshrined in the latest changes to the 2006 EEA Regulations - I don't propose to try and reproduce the relevant bits in this post as they are a bit lengthy, but I would recommend a read of Para 9 - "New regulation 15A (derivative right of residence)" in this document:-

http://www.legislati.../2012/1547/made

Effectively, a "derivative right of residence" lasts only as long as the conditions by which it is gained are fulfilled, and can't lead to Permanent Residence, but that might fill the bill in this case. The OP has said that the children are now in education in the UK, also that the lady was the breadwinner in Thailand, therefore it might well be feasible to establish that she is the "primary carer" of the children, particularly as the father may well be in no condition to fulfil this role.

I wouldn't waste time with the Enquiry Bureau or trying to get an MP interested - I would go and see an OISC Immigration Advisor qualified to Level 2 or 3, or a good immigration solicitor who is familiar with applications under the EEA Regulations and how the recent changes affect this case.

Thank you very much for this.

I'm afraid I was a little unclear in my last post. The British national was the bread-winner and not the wife who has the visitor visa. (he was the breadwinner in 'her' country)

I will now look for an OISC Immigration Advisor as you suggested.

Very helpful indeed

Thanks

[7by7]

As Eff1n2ret says, the husband's MP is unlikely to be of much use. A suitably qualified and experienced OISC adviser or solicitor is far better positioned to advise.

People sometimes have the wrong idea about what an MP can do. They can advise and point you in the right direction; but what they cannot do is force the UKBA to bend or break the rules on your behalf. She either qualifies to remain in the UK in some capacity or other, or she doesn't. If she doesn't an MP cannot change that, and would be abusing his/her position if they even tried.

Please believe me when I say that I have total sympathy for this couple's plight; but the further information you have provided has raised certain questions which do not have to be answered here, but will, I believe, need to be answered in any application the wife makes; whether under the UK immigration rules or the EEA regulations.

• In her visit visa application, what reason did she give for the visit and how long did she say she intended to stay in the UK?
  
• Was the original intention for the husband and children to remain in the UK and her to return home? Was this explained in the application?
  
• If the whole family's intention was to just visit, why were the children placed into a school?
  Local Education Authorities have a legal obligation to provide a school place for all children of school age living in their area; but not for children just visiting. Did she tell the LEA and/or school that they were only visiting?
  
• Was the husband diagnosed outside the UK before she applied for her visit, or once in the UK? If before the visit was the reason for visiting the UK so he could obtain treatment in the UK? Was this explained in her visa application?
  

On the hopeful side, one member here in similar circumstances was successful in having his partner's visit visa extended whilst their child underwent hospital treatment in the UK; so it is not impossible.

I don't have the time right now, but I'll try and find the relevant posts later today.

Edited October 31, 2012 by 7by7

[ThaiVisaExpress]

We had a client in similar circumstances & she got to stay in the UK so the answer is yes.

• And it was her husbands mother who had cancer not him
  

[7by7]

I don't have the time right now, but I'll try and find the relevant posts later today.

I may have misremembered; in the case I was thinking of the wife actually returned to Thailand and immediately applied to return to the UK under a different category.

But as TVE says, it can be done.

[Eff1n2ret]

As Eff1n2ret says, the husband's MP is unlikely to be of much use. A suitably qualified and experienced OISC adviser or solicitor is far better positioned to advise.

Please believe me when I say that I have total sympathy for this couple's plight; but the further information you have provided has raised certain questions which do not have to be answered here, but will, I believe, need to be answered in any application the wife makes; whether under the UK immigration rules or the EEA regulations.

• In her visit visa application, what reason did she give for the visit and how long did she say she intended to stay in the UK?
  
• Was the original intention for the husband and children to remain in the UK and her to return home? Was this explained in the application?
  
• If the whole family's intention was to just visit, why were the children placed into a school?
  Local Education Authorities have a legal obligation to provide a school place for all children of school age living in their area; but not for children just visiting. Did she tell the LEA and/or school that they were only visiting?
  
• Was the husband diagnosed outside the UK before she applied for her visit, or once in the UK? If before the visit was the reason for visiting the UK so he could obtain treatment in the UK? Was this explained in her visa application?
  

I see where you're going, but the possible inference that the visa was gained by deception would have no relevance if the application was made under EEA regulations because if a person is qualified under EEA rights it doesn't matter how they entered the country or whether they're there legally - see Metock.

My previous reference to the 'Chen' case is not entirely appropriate, because it was the 'Zambrano' case that said that a child must be regarded as an EEA citizen when considering the Treaty Rights of non-EEA parents/carers, and it's still not clear whether the UK government is prepared to implement that fully. Given that the recent Statement of Changes which I quoted makes no reference to Zambrano, I suspect they might not do so.

This is a matter where the applicant needs qualified legal advice. Precedents under previous versions of the Immigration Rules may no longer be appropriate because the latest version has attempted to codify all the circumstances whereby an application can be made, and there may not be much discretion now to grant on "compassionate grounds" .

[David48]

Just an observation from someone who is not English.

Your friend has not long on this mortal coil according to your OP.

Assuming your friend passes in the next 6 - 12 months ... where does that leave the family?

Kids in school learning in a foreign language (assuming that, until just recently they were living most of their lives in Thailand).

A mother who presumably speaks a level of English or job skills which maynot be marketable.

Combined ... this would make her difficult to employ.

The wife would not qualify for any part of the social support network

Back in Thailand, the kids learn in a system they are familiar with, a language they know, the wife has a support system around her in her family and the potential to work in Thailand.

A few presumptions there ... but am I missing something?

.

[theoldgit]

Remarks relating to races and targets removed.

[xieng]

Thanks to some great advice my friend has now been able to find the appropriate help he and his family needs.

Many many thanks

[7by7]

Good to hear.

Please let us know the outcome as it may help others in their situation.

Thanks.

[xieng]

Simply knowing to look for an ' OISC Immigration Advisor qualified to Level 2 or 3' really helped

After a quick search I found the following site which helped us find help in my friend's area.

http://oisc.homeoffice.gov.uk/how_to_find_a_regulated_immigration_adviser/adviser_finder/

​I will update progress as it goes, fingers crossed