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Personal Immigration FAQs

Personal Immigration FAQs

Personal Immigration Frequently Asked Questions 

The below are frequently asked questions by our personal immigration clients:

If you require business immigration advice, we have developed a page of frequently asked questions.

Specialist immigration advice and support for individuals

To discuss how our personal immigration lawyers can help you, please contact Judith Hockin on 0117 314 5302, or make a quick enquiry below.

I am a British citizen. How can my foreign spouse come to live with me in the UK?

If your spouse is not a British citizen or a national of a European Economic Area country, then they will need a visa in order to come to the UK to live. Most people in this situation will apply under the Immigration Rules for family members, although it is always worth considering whether other immigration categories might be better. For example, they may prefer to be sponsored by a UK employer under the Tier 2 (General) category.

If applying under the Rules for family members, you will need to meet requirements relating to the genuineness of your relationship, your good character (including criminal convictions), English language and your finances.

The financial requirements look at your recent earnings, anticipated future earnings and specify a minimum salary amount based on whether you have any children who also need to apply for visas. The minimum income you need to show is £18,600 where no children are applying with you. You then need to demonstrate an additional £3,800 for the first child and an additional £2,400 for each child after that. The Immigration Rules contain very strict requirements as to the documents which will be accepted as confirmation of earnings. If you are unable to satisfy the financial requirement through your earnings then you may be able to satisfy it by showing that you have held cash savings totalling at least £62,500 for at least six months before applying.

The family member Rules are very complicated and are interpreted very strictly by the Home Office and Entry Clearance Officers overseas. Please contact us if you would like a quote for us to assist with an application in this category.

What is the Immigration Health Surcharge and how do I pay for it?

The Immigration Health Surcharge is a statutory fee which must be paid by all foreign nationals applying for a visa from overseas or for leave to remain in the UK which will be granted for longer than six months. The amount of the Surcharge is currently £200 for each applicant for each year that their visa or leave to remain will be valid (£150 for applicants under the Tier 4 or Tier 5 (Youth Mobility Scheme) categories).

The Surcharge must be paid in full by credit or debit card when you make your immigration application and at the same time as paying the other fees associated with your application. If your application is refused then the Surcharge should be refunded.

I am in the UK with a spouse visa. When can I apply for Indefinite Leave to Remain?

Spouse visas (granted under the Immigration Rules for family members) are granted for an initial period of two years and nine months where the initial application is made overseas, or two years and six months if that initial application is made from within the UK. Once the holder of the visa is within 28 days of completing two years and six months in the UK, with this visa they can submit an application to extend their stay for a further two years and six months (demonstrating that they continue to meet the requirements for this category). Upon completion of a period of five years in the UK in this category you can apply for indefinite leave to remain provided you meet the relevant requirements.

I am about to apply for an extension of stay in the UK. Should I apply at the Premium Service Centre or by post?

Applications submitted at the Premium Service Centre attract a fee of £500 per person in addition to the standard application fees, so often the answer to this question comes down to a personal preference and budget. In most cases, applications submitted at the Premium Service Centre are decided on the same day, with documents returned after the application has been considered, so many people use the Premium Service Centre either because they want the certainty of a decision on the same day, or because they travel regularly and need their passport back. Do bear in mind though that even if a decision is made on the day of your appointment and your passport returned to you, it can take around one to two weeks for the Home Office to issue your new Biometric Residence Permit confirming your new status.

If an application is complicated or requires additional and more detailed consideration by the Home Office, it may be retained by the caseworkers and could take weeks to be decided. In such situations the Home Office will not normally refund any part of the application fee. Additionally, some types of application (e.g. Tier 1 (Entrepreneur), citizenship and travel document applications) will not be considered at Premium Service Centres.

Please contact us if you would like a quote for our fees to assist with an application to be submitted at a Premium Service Centre.

I am in the UK on a visitor visa. Can I switch to a different visa?

In the overwhelming majority of cases visitors will not be permitted to switch their status or extend their stay in the UK. The Immigration Rules do not allow someone in this situation to switch their status. The only situations in which that might be possible are where there are exceptional circumstances which mean you are unable to return to your home country to make the application from overseas. The Home Office will approve such applications only very rarely so you should seek legal advice before making such an application.

I am an EEA national living in the UK. How do I get British citizenship?

If you are over the age of 18 then in order to become a British citizen you must apply to the Home Office to be naturalised. One of the requirements for naturalisation is that you are free from immigration time restrictions, which as an EEA national means that you must have acquired permanent residence. In most cases permanent residence is acquired after five years exercising EU Treaty rights in the UK in one or more of the following categories: worker, self-employed person, student or self-sufficient person.

The legislation which governs how naturalisation applications are to be submitted now requires you to have been issued documentation by the Home Office confirming that you have acquired permanent residence (for EEA nationals this is known as a "document certifying permanent residence"). Usually, applicants will need to have held permanent residence for at least 12 months before being eligible for naturalisation. You will also need to satisfy other requirements including an English language requirement, passing the Life in the UK Test, being of good character and residential requirements relating to your absences from the UK.

The result of the UK's referendum on EU membership held on 23 June 2016 has created a great deal of uncertainty. If you have other questions relating to you status in light of the referendum, the answers may be found on our Immigration Q&A after Brexit page.

Please contact us if you would like a quote for our fees to assist with an application either to confirm that you have acquired permanent residence or for British citizenship.

How much money do I need to have to be a Tier 1 Entrepreneur?

In most cases, the sum required is £200,000. The funds can be held by you as the applicant or a third party who is making the funds available to you. Alternatively, you can also rely on £200,000 that has been invested into a UK business within the 12-month period before you apply. It is also possible to apply if you have access to £50,000, but only if those funds come from:

  • a UK entrepreneurial seed funding competition endorsed by the Department for International Trade
  • a UK government department making funds available for the purpose of setting up or expanding a UK business
  • a venture capital firm registered with the Financial Conduct Authority

The Rules relating to applications made in this category are very complicated and interpreted strictly by the Home Office. Please contact us for further information if you are interested in making an application in this category.

My application for a visa submitted outside of the UK has been refused. What can I do?

Your options will depend on the category in which you made your application. If you applied under a 'Points-Based System' category such as Tier 4 (General) student or Tier 2 (General) migrant, then you can request an administrative review of the decision. The decision will be looked at by another Entry Clearance Officer who will review the application and refusal to determine whether it was correct under the Immigration Rules.

If your application was for a visit visa then there will be no right of appeal and your only option is to apply again.

If you applied under the Rules for family members then you can appeal against the refusal if you believe that the refusal breaches your or your family's human rights, such as the right to a private and family life. However, as appeals can take many months to be heard, it may be better for you to apply again although whether this is the best course of action will depend on your particular circumstances.

Should I use a solicitor to help with my application?

There is no requirement to use a solicitor or other legal representative when making any immigration application. However, the Immigration Rules can be very complicated and the Home Office tend to interpret those Rules very strictly so it is important that you know what requirements need to be satisfied and what documents need to be submitted to demonstrate that you meet those requirements. We are experienced in dealing with immigration applications in all categories and will use that experience in ensuring that your application is as strong as it can be.

Please contact us for a quote if you would like us to assist with your application.

Can I switch my status from Tier 2 Dependent Spouse to Tier 2 (General) migrant from within the UK or do I have to return to my home country?

Unfortunately not - the Immigration Rules do not permit someone with leave as a dependent spouse to be granted leave to remain as a Tier 2 (General) migrant from within the UK. You will need to return to your home country (or any other country where you have a right of residence) in order to apply for a visa in this category.

I am in the UK as a Tier 2 (General) migrant. What is the 'cooling off' period and how does it affect me?

Tier 2 migrants are subject to a 'cooling off' period of 12 months if they leave the UK and their Tier 2 leave lapses. During this 12-month period they will not be permitted to return to the UK on another Tier 2 visa unless:

  • their previous Certificate of Sponsorship (CoS) was assigned for a period of 3 months or less
  • their new CoS shows that the salary they will be paid in the UK exceeds £155,300
  • they are applying in the Long-Term staff subcategory of Tier 2 (Intra-Company Transfer) and their previous CoS was issued in the Short Term staff, Graduate Trainee or Skills Transfer subcategories of Tier 2 (Intra-Company Transfer)

You can still return to the UK in another immigration category, such as visitor, during the cooling off period.

I am a Tier 2 (General) migrant and want to change jobs. Once my new employer has given me details of the Certificate of Sponsorship (CoS) and I have applied for further leave, when can I start work?

When assigning you a Certificate of Sponsorship (CoS) your new employer will have indicated a date on which your employment with them is due to start. If your application for leave to remain is approved before that start date then ordinarily you cannot start work before then. However, if your new employer changes their mind and wants you to start earlier, they can file a report with the Home Office varying the start of your employment with them.

The initial confirmation that your application has been approved will be contained in a letter from the Home Office, however, this letter is not the grant of leave itself - that will come in the form of a Biometric Residence Permit which will be issued around one to two weeks after your application is approved. If the work start date on your CoS has already passed then the approval of your application means that you now have permission to start your new job. However, unlike the Biometric Residence Permit, the approval letter is not a document listed as acceptable for the Right to Work checks your employer should be conducting on all employees before they start work. Therefore, your employer may insist on waiting until you have received your Biometric Residence Permit before allowing you to start work so that they can carry out the appropriate checks.

My fiancée is a British citizen and we want to get married in the UK. What visa should I apply for, a marriage visitor or a fiancé(e) visa?

If you intend to live in the UK together after your marriage then you can apply for a fiancée visa. That visa will be valid for six months (so you must intend to marry within that timeframe) and will allow you to switch into the spouse category after you are married. If you do not intend to live together in the UK but want to be married here, then you can apply for a marriage visit visa. Visitors to the UK must not intend to marry here, so if you are planning on marrying in the UK you must apply for a marriage visit visa to allow you to do that.

I am in the UK on a fiancée visa. Can I apply from within the UK to extend my stay here or do I have to leave the UK and apply again from overseas?

The Immigration Rules permit an application to change status from fiancée to spouse to be made from within the UK.

I do not currently live in the UK and was born overseas, but I have a British passport as my father was British. Are my children British citizens?

If any of your children were born in the UK then the fact that you are British by descent will not prevent those children from being British citizens by birth. However, for any children born outside of the UK you are not able to pass on your British citizenship as you yourself are a British citizen by descent. However, there are provisions which allow the children of British citizens by descent to register as British if either the parent or the child and their parent can demonstrate additional ties to the United Kingdom.

Questions of whether a child is already a British citizen or meets requirements to be registered as British are complicated. Please contact us for a quote for us to advise on these issues.

I was born in the UK but have never held a British passport and my parents were not British. Am I a British citizen?

If you were born before 1st January 1983 and unless your father was a foreign diplomat then you will be a British citizen by birth.

If you were born on or after 1 January 1983 then you might be a British citizen if either of your parents were British citizens or held indefinite leave to remain or permanent residence under EU law at the time of your birth. If your parents were not British and did not hold indefinite leave to remain but either of them subsequently acquired that status then you can apply to register as a British citizen, but only if you are not yet 18. If you have turned 18 or your parents are not British and do not hold indefinite leave to remain then you may be able to register as a British citizen by demonstrating that you lived in the UK for the first 10 years of your life and did not spend more than 90 days outside the UK during each of those years.

Questions of whether someone is already a British citizen or meets the requirements to be registered or naturalised as a British citizen are complicated. Please contact us for a quote for us to advise on these issues.

I am married to a British citizen. How do I obtain a British passport?

To be issued with a British passport you need to be a British citizen. If you are not a British citizen yourself then even if you are married to a British citizen this does not automatically make you British. To become a British citizen you need to apply to the Home Office to be 'naturalised'. The requirements for the spouses of British citizens to be naturalised are as follows:

  • aged 18 or over
  • of sound mind
  • meet a good character requirement
  • speak and understand English to a satisfactory standard
  • pass the Life in the UK Test
  • have been granted indefinite leave to remain or acquired permanent residence under EU law
  • meet the residency requirements, which in most cases require you to have:
    • lived in the UK for at least the three years before your application is received
    • spent no more than 270 days outside the UK in those three years
    • spent no more than 90 days outside the UK in the last 12 months
    • not broken any immigration laws while in the UK

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To discuss how our personal immigration lawyers can help you or your organisation, please contact Judith Hockin on 0117 314 5302.

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