Switch from Tier 5 YMS to FLR (M) - (No) right to work?

[pyperm]

Hi,

Would be grateful if anyone could advise me or has had a similar problems with continued right to work when switching from Tier 5 YMS to FLR (M). I married my Canadian wife on September 21st, after she had come to the UK to work in November 2010 on the Tier 5 Youth Mobility Scheme to work as a supply teacher.

We married 5-6 weeks before my wife's YMS visa expired, and lodged our FLR (M) application a few days before the expiry date of 1st November. The UKBA helpline advised me there was no reason why my wife couldn't "switch", and we hired an immigration adviser who told us the same. To date, our application has proceeded as follows:

Application sent (via adviser): 29th October 2012
Acknowledgment letter received: approx 10th November 2012
Letter ordering biometric enrollment received: Jan 16th
Biometrics enrolled in Manchester post office: 26th January

So far, so good.

However, my wife was distraught to be told by her school's HR today that they had received a letter from the UKBA, informing them that my she is working illegally and that they will be fined if they continue to employ her. Our immigration adviser was as perplexed as we are. In the FLR (M) guidance notes, it clearly states that: "If you and any children under 18 apply before the end of your permitted stay in the UK, your/their existing immigration status, including any permission to work, will continue until your/their application(s) is/are decided."

Not only does their letter contradict what it says in writing in the UKBA's own guidance notes, but what makes matters worse is that my wife was not informed directly. In fact, HR told her the letter was confidential and wouldn't reveal any more detail (whether this is under instruction from the UKBA or just HR being difficult I'm not sure).

Does anyone know anything more about this, or has anyone experienced anything similar? Might they have just not read the form properly and assumed that she entered the UK on a fiancée visa instead of switching?

Please help!

Michael

[Obie]

Michael, well the thing about the Youth Mobility Scheme is that it last for 2 years and cannot be renewed, Save for very few circumstances, it is generally not renewable. It is expected that its holder will leave the UK once it has expired. It is not intended to lead to settlement.

There is a statutory provision under Section 3C of the Immigration act 1971, which states that the condition of a person's leave should continue, whiles their application is pending for renewal. This applied in most cases to people with leave to remain that are renewable. This is not the case for YMS. Therefore it cannot be said that the condition under the YBS should continue, whiles the application under different category is considered, as it would extend the time of the YBS by default, which is not what i think parliament intended.

This is not a straight argument, and it could go both way. However it is not straight forward comment, that section 3C should apply.

[pyperm]

Hi Obie, thanks for your reply. I understand that YMS is not intended to lead to settlement, although from what I read on the UKBA website, it was only impossible to switch to another points-based category such as Tier 1 or 2 - FLR (M) is not points-based.

However, I see what you mean that it is not straightforward. I twice phoned the UKBA helpline - the first time, I was told in no uncertain terms my wife could not switch and would have to leave. The second time, I was told in no uncertain terms that the first person was wrong and that FLR (M) provided the only route whereby she could switch. The consensus elsewhere on these boards and on expats.com is that it can be done - there are several stories from people who have done it, but also a few who have been rejected but then succeeded on appeal. I have a Canadian friend who switched from YMS to FLR (M) no problem at one of the PEOs (we found it impossible to get an appointment)

I guess it's the luck of the draw depending on who is handling your case, which is pretty shambolic given that it seems to be a not entirely common scenario and that the consequences are so serious. If it were entirely clear that it was not permitted then fair enough , we obviously would have worked around that - it's the complete lack of any consistency or transparency that is so infuriating because it leaves us in limbo. I'm very glad we hired an immigration adviser!

[vinny]

Provided that her application was in-time and valid, section 3C should be applicable.

[pyperm]

Thanks Vinny - and Section 3C would include the right to work?

The application was on time (although only by a few days!) and valid to the best of my knowledge - I guess it's all academic anyway if the application itself was invalid - but we haven't been informed to the contrary.

[Obie]

Vinny is there any specific authority that deals with applicability of section 3c in YBS cases.
I noted the authority you cited, but none seem to address this specific issue.


I understand these people have leave to remain, but unsure this leave can be varied in any way, by statute or not.

[Greenie]

There doesn't need to be a specific authority. Section 3C does not discriminate according to the type of leave the applicant has. It simply provides that leave and the conditions of that leave are extended whilst section 3C leave is in force. There is nothing in the rules preventing a tier 5 yms migrant from switching to leave as the spouse or partner of settled person. The fact that tier 5 does not directly lead to settlement is not relevant.

[Obie]

My issue is not with the non settlement route, but with the fact that the SOS has clearly stated in legislation that YMS visa cannot be varied.

It is difficult to grasp that the Leave under YBS can be varied in this way. These are special arrangement between government.
My point is, this is not a very clear topic .

[pyperm]

Thanks Greenie. That corresponds with what I've read and heard elsewhere, at least mostly! The issue doesn't appear to be with switching from within the UK. Certainly, the UKBA hasn't told my wife to leave the UK while the decision is pending (at least, not yet) In fact, she was called for her biometric enrollment and completed it last Saturday.

The issue appears to be purely around her right to work until such time as a decision is made. Even then, the UKBA has not written to her but to her employer (who allegedly is not allowed to show her the letter because it's confidential). She's effectively in limbo - allowed to stay (she can't leave, the UKBA has her passport!) but not allowed to work. This leaves us in a very tricky position because I've just finished a PhD (viva on Friday) and I'm still looking for a full-time job. The financial obligation was met by her salary on its own, although I also have significant savings.

I just don't understand it. Perhaps they've just assumed that she entered as my fiancee and overlooked her current YMS status altogether? Seems hard to imagine, but going by what Ive read on these boards, the UKBA isn't exactly renowned for its competence.

[pyperm]

Obie, you're certainly right that it's not clear! The wording on the UKBA's website seems very much open to different interpretations by different staff members, although my understanding (after much re-reading) was that it was only points-based settlement schemes that could not be switched to from YMS. From the YMS policy guidance: "Switching into any other Points-Based System route or into visitor status is not allowed". FLR (M) does not fall under either category.

Looking round other boards and hearing from friends, there does seem to be a strong enough precedent of applicants being allowed to switch, even if it's by having an original rejection overturned on appeal. As I wrote previously, it's not like my wife has been ordered to return to Canada. There doesn't appear to be an issue with her being in the UK, just with her working.

Given that it seems to be an increasingly common scenario, it's staggering that there isn't yet a clear policy on this.

[Greenie]

Obie where does it state in legislation that yms leave cannot be varied? The relevant rules as to whether a person can apply for leave to remain (ie switch or extend their leave) can be found in the relevant category in which the applicant wishes to apply. The rules for leave to remain as the partner of a settled person specifically states the immigration status requirements and exclude visitors, overstayers and those on temporary admission unless para ex.1 applies. They don't exclude tier 5 migrants, and thus switching is possible. Even if it were not possible, section 3c does not differentiate between successful and unsuccessful applications, it only requires that applications are in time and valid. There is no provision for some but not all conditions leave to be extended by virtue of section 3c, they are either extended or they are not. If your logic was correct then would it not be the case that a student who switches on FLR(m) would also lose the right to work?

OP there is no need for a specific policy because the legislation is clear. Staff just need to be better trained.

[ksglp]

Hi, I am wondering if you could post the outcome to your situation. You have described my situation to a T - I am a Canadian on the Youth Mobility visa and married my British partner and we have applied for FLR (M), I have not asked for more information and submitted my Biometrics now approaching 3 weeks ago. While I have been told by Home Office I can continue to work - and even have received the nod from an immigration solicitor, my work called the Employer Help Line and said that they cannot employ me past my Youth Mobility visa expiration date.

I have not been asked to leave and I understand I do not have to (and as you mentioned, they have all the documents!), I just like you worry about meeting the financial requirement as I am able to do this on my income alone.

My employer has submitted a Enquiry Form by email which they have been told will be replied to within 5 days. I would like to know what options I have and reference previous cases in the event that I need to.

Much appreciated.

[Rayking]

Since your spouse is British, it might be easier to apply from Canada if your application can't be renewed from within.
You can do this as you're married to a British and as long your spouse meets the financial requirements of 18600 and all other requirements.
Sine the YMS isn't clear cut,you wouldn't want to get dragged into what will end up costing you more money and time,would you?
Also better to get it sorted b4 the time.

[ksglp]

Thank you for your reply. I want to avoid having to go back to Canada as it would be cheaper (save grief, disruption of work) to live here on my savings and in our owned home - until a decision is made. Plus, my work is happy to have me continue to work for them granted they are legally able to (getting the confirmation from Home Office as we speak) as I have short time left on my Youth Mobility.

I am quite interested in the original author's outcome as it quite like mine, it seems I am caught between competing pieces of legislation and want to do all I can to support my application.

[Rayking]

You can send mail directly to home office and attach it if it's a positive response to your application as evidence they're the one that told you so,keep a copy as well.
Tbh,you need to get this sorted more on your own because if it gets late,your employer will be helpless to do anything about it really.
Just my little advice.

[Obie]

The YMS is a scheme that grants fixed leave, which is not designed to be extended, therefore the condition of that leave cannot be extended by virtue of section 3C.

[vinny]

I agree with Greenie.

245ZL just specifies the Period and conditions of grant of the YMS entry clearance. There doesn't appear to be anything to prevent Section 3C from extending it, following a valid in-time application, in the normal way.

[Obie]

Well there is no authority on this matter, it is only a matter for the court to decide. So it cannot be said it is a clear issue.

Given the restrictive nature of the scheme, the fact that the goverment of those applicants nation country are the sponsor for it, the fact only a certain quota is granted to these nations every year, the fact that these people are prohibited from switiching into other category, save for family route, and inthe absence of any authority, I am not convinced that the Home Office will be wrong to say that section 3C cannot have the effect of extending this very regulated scheme.