Settlement Visa In Uk?

[El_Roberto]

Hi all,

My Thai G/F is currently here in the UK on a 6 month tourist visa. As I understand it she cannot extend this visa or apply for a new one from the UK?

Ideally she would like a 2 year settlement visa that will give her the opporunity to work. We are not married, is this going to be possible? We can prove we have been together for over 5 years and my Parents are happy to guarentee her.

Any help/suggestions would be welcomed, anyone who has been or is in the situation please let me know.

Thanks

Robert

[the scouser]

In the circumstances you have described, your girlfriend can make an application to the Home Office for permission to stay in the UK as your unmarried partner. She won't need to leave the UK and apply for another visa.

You will need to show to a high evidential threshold that your relationship does, indeed, date back 5 years and that you have been together for that time, give or take short breaks. You will additionally need to show that your girlfriend can be maintained and accommodated without recourse to public funds. If your relationship was formed, and has been spent, outside of the UK, your girlfriend, if successful, will qualify for indefinite leave to remain as you have been together in excess of 4 years.

The cost of a postal application to the Home Office is £335.00.

Cheers,

Scouse.

[the gent]

In the circumstances you have described, your girlfriend can make an application to the Home Office for permission to stay in the UK as your unmarried partner. She won't need to leave the UK and apply for another visa.

You will need to show to a high evidential threshold that your relationship does, indeed, date back 5 years and that you have been together for that time, give or take short breaks. You will additionally need to show that your girlfriend can be maintained and accommodated without recourse to public funds. If your relationship was formed, and has been spent, outside of the UK, your girlfriend, if successful, will qualify for indefinite leave to remain as you have been together in excess of 4 years.

The cost of a postal application to the Home Office is £335.00.

Cheers,

Scouse.

Is this right Scouser? Can she switch from visitor to another category? Surely anyone staying longer than 6 months would have needed clearance before entering the UK. Looking at the rules it seems an EC is mandatory. Maybe I've missed something......

[the scouser]

You're quite right, Gent. A mental abberation led me to ignore the fact that the lady is in the UK as a visitor. Of course, as such, she can't switch to another category.

The OP should ignore my first post. His girlfriend will have to return to Thailand and seek another visa to return as his unmarried partner. If she wishes, she can apply for the visa from the UK and request an interview date for a time when she'll be back in Thailand. The rest of the guidance stands, though.

Scouse.

[the gent]

In the circumstances you have described, your girlfriend can make an application to the Home Office for permission to stay in the UK as your unmarried partner. She won't need to leave the UK and apply for another visa.

You will need to show to a high evidential threshold that your relationship does, indeed, date back 5 years and that you have been together for that time, give or take short breaks. You will additionally need to show that your girlfriend can be maintained and accommodated without recourse to public funds. If your relationship was formed, and has been spent, outside of the UK, your girlfriend, if successful, will qualify for indefinite leave to remain as you have been together in excess of 4 years.

The cost of a postal application to the Home Office is £335.00.

Cheers,

Scouse.

Is this right Scouser? Can she switch from visitor to another category? Surely anyone staying longer than 6 months would have needed clearance before entering the UK. Looking at the rules it seems an EC is mandatory. Maybe I've missed something......

No you're not wrong !!! Maybe.......

I've checked the rules again and it states unequivocally that provided she has limited leave to remain within any provisions of the rules then an application can be submitted. I have assumed that leave to enter as a visitor constitutes limited leave to remain. Do you agree?

Edited March 10, 2006 by the gent

[GU22]

No you're not wrong !!! Maybe.......

I've checked the rules again and it states unequivocally that provided she has limited leave to remain within any provisions of the rules then an application can be submitted. I have assumed that leave to enter as a visitor constitutes limited leave to remain. Do you agree?

Limited leave to remain means a student visa, work permit etc. It does not include a visit visa as this grants leave to visit, not to remain.

Scouse's correction is correct, as she is here on a visit visa she cannot switch to a different category in the UK.

[the gent]

No you're not wrong !!! Maybe.......

I've checked the rules again and it states unequivocally that provided she has limited leave to remain within any provisions of the rules then an application can be submitted. I have assumed that leave to enter as a visitor constitutes limited leave to remain. Do you agree?

Limited leave to remain means a student visa, work permit etc. It does not include a visit visa as this grants leave to visit, not to remain.

Scouse's correction is correct, as she is here on a visit visa she cannot switch to a different category in the UK.

Not quite. Entering as a visitor encompasses several purposes e.g business, medical, or just plain social. In any of those circumstances FLR can be obtained provided that it is within the provisions of the rules. Having gained leave to enter one remains within the currency of that leave, so to speak. I still think The Scouser was right initially. Switching is excluded specifically in several categories but not, it seems, in the case of unmarried or same sex partners. Presumably, this is because it is quite difficult to meet the requirements of the rules and consequently the opportunity to abuse, successfully, does not arise.

[El_Roberto]

Errr, okay, more confused!

I recieved this from an immigration friend:

tourist visa cannot be extended or changed to a different category so she will need to apply for a further visa in Bangkok. Additionally on her return to Thailand she will have to wait 6 months before she can apply for another tourist visa but can immediately apply for one of the visas outlined above.

So it seems she will have to return to Bangers to apply.

How realistic is it to get an unmarried visa? That application fee seemed rather large, I don't want to throw money away.

Can I do something from here? Set up Interviews for Bangkok etc?

For the last year I have been back here in the UK and she has been in Thailand, will that affect anything?

All you guys, thanks in advance....

[the scouser]

El Roberto,

Apologies for the confusion, but you've raised a point which I've not encountered before and does appear to expose a weakness within the immigration rules. I have had another look at the relevant provisions (para 295D) and there appears to be absolutely nothing in there that prohibits your girlfriend from applying from inside the UK. However, before you do anything, I'd seek expert legal advice on this issue. I'm meeting a man about a dog on Monday, so will ask him then.

Notwithstanding the above, the evidential threshold for such applications is high. You have to show that you have been living in a relationship akin to marriage. Therefore, as you have spent the last year apart, it is likely that this requirement won't be satisfied. The Home Office/visa officer will argue that you can't possibly meet the criteria when you have been living apart.

If your girlfriend still wishes to apply for a visa, she can send off an application whilst she is in the UK and enclose a covering letter requesting an interview for a date when she will be back in Thailand. Beware, however! An unmarried partner's visa is a settlement visa. In applying your girlfriend is stating that she wishes to stay in the UK permanently. If she is refused the visa, she will therefore find it difficult to get another visit visa.

Cheers,

Scouse.

Para 295D of the immigration rules:-

Requirements for leave to remain as the unmarried or same-sex partner of a person present and settled in the United Kingdom

295D. The requirements to be met by a person seeking leave to remain as the unmarried or same-sex partner of a person present and settled in the United Kingdom are that:

(i) the applicant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules; and

(ii) any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down; and

(iii) the applicant is the unmarried or same-sex partner of a person who is present and settled in the United Kingdom; and

(iv) the applicant has not remained in breach of the immigration laws; and

(v) the parties are not involved in a consanguineous relationship with one another; and

(vi) the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more; and

(vii) the parties' relationship pre-dates any decision to deport the applicant, recommend him for deportation, give him notice under Section 6(2) of the Immigration Act 1971, or give directions for his removal under section 10 of the Immigration and Asylum Act 1999; and

(viii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(ix) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(x) the parties intend to live together permanently.

Leave to remain as the unmarried or same-sex partner of a person present and settled in the United Kingdom

[gregchambers]

But if you get married in the UK whislt Thai girl is on a visitors visa does that changes things as I have heard this really pissed off the embassy?

[GU22]

You can't marry in the UK if here on a visit visa.

Under the immigration rules a foreign national who wishes to marry in the UK but who did not enter with this express purpose in mind, i.e with a fiance visa, would have to obtain a certificate of approval from the Home Office. Certificates of approval are only issued to those who have been granted leave to enter/remain in the UK for in excess of 6 months and who have at least 3 months' extant leave. Therefore a Thai national on a visit visa, i.e. leave for 6 months or less, would not be able to obtain a certificate of approval and would not be able to marry in the UK, let alone seek settlement.

It is possible for foreign nationals who wish to marry in the UK to obtain a marriage visit visa, but this confers no residential rights and cannot be converted to a settlement visa in the UK.

[the scouser]

Right, I've had a proper think about whether someone in the UK as a visitor can seek permission to stay as an unmarried partner. I've also discussed the issue with a serving UK I.O. and this is my definitive answer (until such a time as I change my mind again).

The key is in the meaning of the phrase "leave to remain" in the relevant paragraph of the immigration rules. An immigration officer, when admitting someone to the UK within the immigration rules, for example as a visitor, grants leave to enter. Permission to extend leave to enter is given by the Home Office and is called leave to remain.

Visitors are granted 6 months leave to enter upon arrival in the UK and, generally speaking, cannot extend this; i.e. a visitor cannot qualify for leave to remain. Consequently, a visitor is never going to be in a position where he/she can qualify as an unmarried partner under the provisions of para 295D because they will not hold leave to remain.

So, El Roberto, my final answer is no, your girlfriend cannot make an application from within the UK to stay as your unmarried partner. Also, any visa application is likely to fail, too, as you haven't been living together in a relationship akin to marriage for at least the last two years.

Scouse.

[vinny]

Scouse,

Thanks for the interesting answer!

What happens when an unmarried couple arrives in the UK a few months late? They cannot apply for the ILR because they would not have satisfied the two years' requirement. They cannot apply for leave to remain as an unmarried couple because they only had leave to enter.

[the scouser]

You've got me there, Vinny!

The plot thickens, too. I've had a look at the Home Office caseworking instructions (para 3.1) which interpret "leave to remain" as meaning:-

the applicant is here lawfully......

and:-

the applicant’s leave was granted within the Immigration Rules

If this is indeed the case, then not only would the situation you mention not arise, but a visitor may apply to the Home Office, and qualify (providing all the criteria are met), for leave to remain as an unmarried partner.

If my (re-)reading is correct, this discriminates in favour of unmarried partners, as those who are married can't switch from visitor to settlement.

I reserve the right to change my mind again!

Scouse.

[the gent]

Personally, I like arguing against myself, that way I always get to win!

A less than prepossessing visitor, visa national or otherwise, only gets 3 months leave to enter. Under the rules that person can apply for an extension up to the balance of the maximum given to a visitor viz 6 months. Therefore, that person will now have an endorsement showing he has been given leave to remain for 3 months.

I doubt very much that the Home Office would wish to advantage a dubious visitor over one who was granted 6 months leave to enter.

Commonsense would dictate that leave to enter is synonymous with leave to remain and therefore no bar to an in country application for leave to remain as a SSP or unmarried partner.

[GU22]

There is no point in getting into a silly argument over the difference, if any, between "leave to enter" and "leave to remain" when the reality is quite simple.

Anyone in the UK with a visit visa (or, I believe, any visa, of 6 months duration* or less) cannot apply for a spouse, civil partner etc. visa whilst in the UK; they must return to their country of residence to do so.

From what Scouse has discovered it appears that there may be a loophole for unmarried partners, but even then they will have needed to have lived together abroad for at least 18 months before coming to the UK with the visit visa.

(*Except fiance visas, of course. With an FV the holder applies for FLR in the UK once the marriage has taken place.)

[El_Roberto]

In conclusion?

So my GF will have to return to Thailand and apply there. However she can't apply for a settlement visa as its very likely to be turned down. She has to wait another 6 months before being granted another tourist visa. So I guess, I will have to go out to thailand, get married and do it that way???????

THERE must be another way!(Are you guys picking up the fear opf marriage!?)

Student Visa????

Any Ideas?

Rob

[the scouser]

Rob,

The upshot is that your girlfriend can make an application to stay as your unmarried partner without leaving the UK. However, because you have spent a year apart within the last 2, she is unlikely to qualify. Should she apply and be refused, she would have a right of appeal and could expect that to take a year to be heard.

With regard to applications under other paragraphs of the immigration rules, she may return to Thailand and seek a visa as a student, but it is feasible that the visa officer might infer that she is seeking to study just as a means of getting in to the UK to be with you, and that the studies are secondary. In such a situation, it is unlikely that she would qualify for a student visa.

Scouse.

[El_Roberto]

So what would stop us getting married over here then going back to bangers and applying for a settlement visa, she would surely be in a much stronger position if we were married?

[GU22]

Holders of an ordinary tourist visit visa cannot marry in the UK.

If you want to marry in the UK then you would have to return to Thailand and apply for a fiance visa, then come back to the UK and marry and then apply for Further Leave to Remain. It will certainly be quicker, easier and cheaper to marry her in Thailand and then apply for a spouse visa.

The "living together for 2 years" rule only applies to applicants for an unmarried partner visa, not a fiance or spouse visa.

She should not apply for a student visa unless she is a bone fide student with a confirmed place at a recognised place of learning. Breaking, or even bending, the immigration rules is only storing up difficulties for the future.

Edited March 13, 2006 by GU22