switching to spouse visa from student's visa expiring in nov

[OysterDenizen]

hi all,

my wife and i got married in june and for some unforeseen reasons we have just gotten round to sorting out our papers. I have a tier 2 permit valid for another 2 years and she has a student visa expiring in november. she's planning to go back home for her visa interview next month.

i read somewhere that the application will be refused if she has less than 3 months left on her current visa. is this true? please help.

thanks.


PS: her current visa was issued for 18 months.

[vinny]

she's planning to go back home for her visa interview next month.

As your wife, she may apply for a tier 2 dependant visa from her own country.

[OysterDenizen]

Hi Vinny,

Thanks for your reply. She's going back home to do exactly just that. My main worry is that by the time she gets home she will have less than 3 months left on her current visa. I want to know if this will affect her chances in any way.

cheers

[vinny]

If she departs from the UK before her leave expires and will be applying for a new visa, then the expiry of her current leave is not relevant. An important factor is to depart before her leave expires, so that she is not an overstayer and won't be subject to a ban.

[Hope2007]

Hi Vinny,

sorry to bother you ...the link you had provided took me to this page

http://www.ukvisas.gov.uk/en/ecg/refusa ... s#20575951

and it says:

3.3.3 When does rule 320(7B) not apply?
Under paragraph 320(7C) of the immigration rules, You must not refuse an applicant under 320(7B) if they are applying in the following categories:

Spouse, civil partner, unmarried or same-sex partner (Paragraphs 281 or 295A);



What does it mean by this ? they cant refuse a spouse visa ?

[vinny]

320(7C) states that partners of British or settled people (Paragraphs 281 or 295A) are exempted from the ban. Unfortunately, partners of other category holders are subject to it, when applicable.

[Hope2007]

Thanks vinny...i have been to try find a best option to sort out my case...
if you dont mind, could i ask u another question....

I am a wp holder & have visa until 2010. planning out of country to switch to dependant visa (New EC) of my wife(hsmp)...but i sponsored my son's , who was born in the Uk ,dependant visa in 2007...

1) i am worried if i go out of my country ..will affect his visa ? do i need to take him out for a new EC?

2) i also have some problem with my pay scale as i had to have a pay cut for this year....will it affect my EC as Dependant visa app(VAF10) has NI question. worried if that will show that i was not on the salary that my wp shows.

3) if they refused , will it affect my existing wp visa?

sorry to many question...thanks for your help...

[vinny]

1) I'm not sure. However, immediately after a parent is granted settlement/PR, their child is entitled to register for British citizenship (Section 1(3)), irrespective of child's immigration status.

2) I don't think that this would affect an entry clearance application. However, I believe you should have informed the UKBA of this at the time. If your wife is on HSMP and not Tier 1, then are you using the correct form?

3) If you are refused, I don't think that your work permit would be cancelled. However, you may have further problems because of your salary changes.

Suggest that you get further advice.

[PaperPusher]

I think that UKBA may be understanding about a pay cut in some circumstances:

Changes to the guidance for PBS 7th August 2009

found on this page:

http://www.ukba.homeoffice.gov.uk/sitec ... sguidance/

Confirmation that a temporary reduction in a migrants salary and/or working hours in order to avoid redundancies due to the current economic climate will not require full change of employment action. But this will only apply where
• the migrant has a current grant of leave under Tier 2; and
• the migrant is continuing to work in the same job, with reduced working hours; and
• the migrant’s reduced working hours are part of a company-wide policy to avoid redundancies; and
• you are not treating migrant workers more, or less favourably than resident workers; and
• the migrant’s pay or working hours do not reduce by more than 30%; and
• any reduction in wages is proportionate to the reduction in hours; and
• the arrangements will be in place for no more than one year.

[Hope2007]

Thanks vinny for your reply

1) i read that rule. when parents(one of then ) gets ILR, child can be registered for BC. But my case is before to that stage(b4 appling for ilr). if i go out of the uk to switch to dependant visa, will the ECO say in my country say that you had sponsored dependant visa for the child and cant be changed unless the child also becomes the dependant of the mother. that means me & my kid are dependants to my wife. the idea is to include me in my wife ILR app.

2) she is on hsmp visa (old rules before apr 2006 convered by JR) .and its VAF(10) ..right for dependant ?

3) when i apply for dependant visa, i wouldn't need to send my payslips/bank statments as i send the main applicants payslips/bank stmts, so do you think , they would be interested in finding out how much i earned when i apply for a dependant visa ? having said that , they ask for NI , which may tell about my contribution but not sure about the salary...


4) finally instead of taking the risk ,i am thinking , would FLR(M) help me ? but , by then i finish 2 years , the new BC rules willbe in place...

Thanks vinnuy

[Hope2007]

it looks like my child will be ok if he remains in the uk.

i.e i was wondering if i go out of the uk to changce my visa to dependant visa of my wife(she is a hsmpian), would his dependant visa would affect as i had sponsored the visa in 2007.

so i sent an email to HO. This is what i got an automated reply...
correct me if i haven't understood the rule correctly


Thanks

9. Child born in the UK

If your child was born in the UK and you currently have limited leave to remain, you will need to obtain and complete application form FLR(O), or PBS (Dependant) if you were granted leave to remain under the Points Based System, in order for them to be granted leave to remain as your dependant.

On form FLR(O), the baby's details should be entered in Section 1 - Applicant's Details. On form PBS (Dependant), the baby's details should be entered in Section 2 - Dependant's Details. You should enclose your own passport with the application.


If you will be leaving the UK and do not intend to return under the conditions of your current leave to remain, you are not required to make an application to the UK Border Agency for your baby. They are deemed to have leave to remain in the UK until you leave.[/b]

If you will be making an application for further leave to remain or indefinite leave to remain and do not intend to travel before you do so, you can include the baby as your dependant at that time. However please note, if you travel outside the UK before your baby obtains leave to remain, you will need to obtain Entry Clearance for the baby before you return to the UK.