Advice needed on 'insurmountable obstacles'

[Frankie88]

Hi,
My wife has been in the UK for about a year on a Tier 4 student visa. This will expire at the end of January. I will not meet the financial requirements (£18,600 for 6 consecutive months) until the March. With the added processing time for the visa, this means she will have to return to her native China for up to 4 months. We were therefore advised to apply on the 10 year route (no financial requirement) and switch to the 5 year route when we were eligible. However, on reading the documentation, it states that there must be no 'insurmountable obstacles' to living overseas. I am wondering how strict this part of the requirements is, as we easily meet the others. Our civil partnership will not be recognised in China and we would be unable to have children there (as we plan to do soon)- would these be considered severe enough obstacles?
It is an expensive visa to apply for if it is not granted. We are therefore undecided as to whether to apply or simply wait until we are eligible for the 5 year route. Any advice? Many thanks!

[physicskate]

I don't think you'll meet insurmountable circumstances as your spouse will qualify in 4 months. Insurmountable implies that you would not be able to meet the financial requirements in the forseeable future.

Tier 2? Would your wife be able to look for a sponsor?

If not, she can go back to her home country for a few months and then apply when you qualify.

What category are you looking to sponsor her under?

[Frankie88]

Hi,
Thanks for your reply. Sorry, I'm not sure what you mean by 'what category are you looking to sponsor her under?'
Thanks!

[physicskate]

Hi,
Thanks for your reply. Sorry, I'm not sure what you mean by 'what category are you looking to sponsor her under?'
Thanks!

What financial category?

[Tamandua]

Can't she extend her tier-4 visa? What's she studying in the UK?

I don't think that's considered an obstacle for her to apply from China in March.

[Frankie88]

Sorry, I'm revealing my ignorance here!
As I understood it, the 10 year partner route doesn't require any financial stipulations. The 'insurmountable obstacles' refers to the ability of the couple to simple move to the other partner's home country.
So, I'm not really sure which financial category I am applying for!

[physicskate]

This will expire at the end of January. I will not meet the financial requirements (£18,600 for 6 consecutive months) until the March.

It looks like Category A for the spouse visa/ FLR(m). You have a very very weak FLR(fp) case, as there are no insurmountable obstacles: she hasn't been here long and you will meet the financial category in the near future.

I am trying to determine if you can meet the financial requirements in another way.

Are you getting a raise in October? What is your current salary and what is your future salary? You might be able to meet Cat B sooner than Cat A.

Financial requirements:
https://www.gov.uk/government/uploads/s ... _Final.pdf

[Frankie88]

Ah, I see what you mean.

No, unfortunately I cannot qualify through Cat B. My salary from Sep will be £18300, so will need to be topped up with cash savings. Cat B part 2 does not allow for the income to be topped up with savings. As my previous salary was only £13000 and I have spent the last three months unemployed, my total gross annual income falls well short of the required amount.

I am confused as to why the 10 year route was suggested to me by the Gov.uk helpline person! He didn't even mention that the 'insurmountable obstacles to living abroad' existed. This is what made me think that perhaps it wasn't often cited as a reason for refusing a visa ie. if all the other categories are clearly met, then that part was just ignored. So, do you think that the LGBT discrimination faced in China (ie not right to marry or have children) would not be enough?

Thanks again!

[Tamandua]

She can apply for a settlement visa to join you in the UK in March which is when you meet the financial criteria. That's the point physicskaye is trying to make.

As for insurmountable obstacles... Are you responsible for, say, looking after a relative? For example, a grandparent you need to care for? Do you have any children from previous relationship? The aforementioned examples are considered insurmountable obstacles that stop you from relocating to China with your spouse.

Well, your civil partnership can be considered an obstacle for you to continue your family life in China, but that doesn't prevent your wife from applying from there. If you decide to submit an FLR(FP) application, make sure you provide evidence such as Chinese law translated into English.

[physicskate]

Ah, I see what you mean.

No, unfortunately I cannot qualify through Cat B. My salary from Sep will be £18300, so will need to be topped up with cash savings. Cat B part 2 does not allow for the income to be topped up with savings. As my previous salary was only £13000 and I have spent the last three months unemployed, my total gross annual income falls well short of the required amount.

I am confused as to why the 10 year route was suggested to me by the Gov.uk helpline person! He didn't even mention that the 'insurmountable obstacles to living abroad' existed. This is what made me think that perhaps it wasn't often cited as a reason for refusing a visa ie. if all the other categories are clearly met, then that part was just ignored. So, do you think that the LGBT discrimination faced in China (ie not right to marry or have children) would not be enough?

Thanks again!

The helpline employees are well known for not know the guidance/ rules. They are little more than call centre workers (despite many people thinking they are immigration consultants/ advisors) and seemingly are not trained in the ins and outs of the rules.

Does your wife work on her Tier 4 visa? How much does she earn? As she currently has the right to work (possibly, depending on the level she studies at and only to a max of 20 hours per week if that is the case), her salary might be able to be added to yours.

If looking to qualify on your salary along to get to the £18600 pa, you would need savings of 16000 +(2.5*(18600 - 18300) = £16,750. This can be held in either name. Savings can be combined with Cat B?? Not sure where you heard differently? But if you've been unemployed for four months it's unlikely you'll qualify for Cat B anyway!

[Frankie88]

Yeah,sorry it took a while, but I think I understand the point now.

I did not know that about the helpline staff, although that does explain a lot!

Yeah, I think Cat B is looking unlikely. I got the info about not combining the Cat B salary with savings from the link you sent me, this part:

"So, under Category B, the assessment of the financial requirement will be based on
both:
(1) The gross annual salary or income of the applicant’s partner’s confirmed offer of
salaried or non-salaried employment in the UK. This source can be combined with
Category C: non-employment income, Category D: cash savings and Category E:
pension; and
(2) The actual amount of gross income received from the applicant’s partner’s salaried
or non-salaried employment overseas in the 12 months prior to the date of
application. This can be combined with the actual gross income the couple received
from Category C: non-employment income and Category E: pension over the same
12-month period. Category D: cash savings cannot be used under (2)."

I took this to mean that in order to meet the part 2 bit, your gross annual income needed to reach £18600 without adding the cash savings. So they can be added for part 1 but not part 2. Perhaps I have misunderstood, I seem to be easily confused by the whole document!!

I understand that she can apply from China in March, but it is this that we are trying to find a way around. Particularly for her career, as well as the simple inconvenience, it would be quite damaging to have to leave for 4 or so months! But this is looking like the only way.

Thanks again for all your help!

[physicskate]

You've mentioned her career - does she currently work? This income can be combined with your own? If she has been earning above £18600 pa, she can apply now...?

[Frankie88]

Sorry, that was misleading, I should have said potential career. As she will graduate from MA in Sep, but then will not be eligible for visa until mid next year, so a long time to wait for long term employment. She has no income to add.

I know that we are eligible for 5 year route a month after her Tier 4 visa runs out. It's just about trying to find a way to bridge that gap (with processing time included, I'm guessing several months).

Does anyone know whether the 10 year route partner visa can be applied for a few months in advance of the Tier 4 running out, and in the case of the 10 year route being rejected, she can simply stay until the end of Tier 4. I'm wondering if it's worth the risk of applying as this will give us much more stability and she won't have to return home at all.

If it is rejected we just accept that we have to wait until we are eligible for 5 year route.

Thanks again!!!

[Tamandua]

Does anyone know whether the 10 year route partner visa can be applied for a few months in advance of the Tier 4 running out, and in the case of the 10 year route being rejected, she can simply stay until the end of Tier 4. I'm wondering if it's worth the risk of applying as this will give us much more stability and she won't have to return home at all.

If it is rejected we just accept that we have to wait until we are eligible for 5 year route.

Thanks again!!!

We certainly have to apply before the expiry date of our visa, but not 4 months in advance. The FLR(FP) takes about 6-8 months to be processed (check the timeline thread). I submitted one more than 8 months ago and haven't heard from the HO.
Alternatively, the HO may refuse it straight away due to lack of insurmountable obstacles and her leave to remain being still valid for 4 months.

If the application gets processed after 6-8 months (and it is a refusal), her visa would be expired. In this case, the HO will definitely retain her passport and ask her to sign on at a reporting centre. That means she would have to leave the country voluntarily and apply from China or they will remove her.
I'm not sure, but I don't think they're in-country appeals anymore.

[physicskate]

In this case, FLR(FP) is clearly a time-wasting application in this case as there aren't insurmountable obstacles. You might be accused of trying to circumvent the rules, which would definitely be a bad move.