February 20, 2020

I Have Indefinite Leave to Remain in the UK, How Can I Bring My Family Here?

Do you know how to exerciser residence rights in the UK for your family members?

Gaining Indefinite Leave to Remain offers you the chance to have your family members join you in the UK.
While many visa routes offer the option to bring dependents to the UK, there may be a reason that you have waited until receiving Indefinite Leave to Remain before bringing other members of your family to the UK. Whatever your reasons, gaining Indefinite Leave to Remain opens up new avenues for you to bring family members to the UK. In this article, we are going to look at which family members you can bring, as well as the relevant information you need to make an informed choice about bringing family members to the country.

Spouse or Partner Coming to the UK to Join their Partner

If you have gained Indefinite Leave to Remain in the UK, you may wish to bring your spouse or partner to the country. The Spouse Visa route allows you to achieve this aim. While its name would appear to mean that it only applies to spouses, the visa actually covers marriages, Civil Partnerships and couples. In order to qualify, you will need to have been in a relationship for at least 2 years (proof of the relationship will be required), and also meet the other stringent eligibility criteria for the visa which is laid out here below:

you’re in a civil partnership or marriage that’s recognised in the UK
you’ve been living together in a relationship for at least 2 years
have a good knowledge of English (may need to be proven depending on your partner’s country of origin)
can financially support yourself and your dependants

As long as you can meet this criteria, you will be eligible to apply for a visa that gives 2.5 years of stay in the UK which can be extended. If your partner stays in the UK for at least 5 years on a Spouse Visa, they will then be able to apply for Indefinite Leave to Remain. This is the ultimate goal for many who use the Spouse Visa route. If you need help with this visa then please get in touch. Our team of immigration specialists can help to ensure that you have everything that you need to make a successful application.

Children Coming to Join Family Members in the UK

Another family member that you may be interested in bringing to the country is a child. Gaining Indefinite Leave to Remain also offers the opportunity for you to bring your child to the UK in order to live with you. The rules around this visa will generally apply to those under the age of 18, but there are exceptional circumstances where your child over 18 can apply (these are if you had permission to stay in the UK as a child, or you do not live an independent life). In order for an application to be made for a child to join a parent in the UK, you must ensure that at least one of the parents is applying for a visa (or extension) at the same time. In order to gain a visa for a child in the UK, you must ensure that the following eligibility criteria is met:

The child must not be married, in a civil partnership or living an independent life
The child must be financially supported without claiming public funds

As well as this criteria, the financial element will also form part of the adult’s visa application. Due to the UK not being prepared to pay public funds for children arriving in the UK on a visa, there is a financial requirement for not only adults arriving in the UK, but an additional requirement based upon the dependents coming in as well. We cover this financial requirement in the financial considerations section.

Financial Considerations

As you are more than likely aware, the UK will not pay public funds to visa holders in the UK. This is so that the UK does not become a target for those who are purely moving to claim benefits. Each of the situations above has a financial element to the application which is laid out below: Minimum income for partner/spouse visa: 18,600 per year This minimum income is based on a couple living together. If you wish to bring children to the UK you will need to earn at least an extra 3,800 per year for your first child and 2,400 per year for any additional children after the first. For example, a couple coming into the UK with two children will need to earn a minimum of 24,800 per year (18,600 for the couple – 3,800 for the first child and 2,400 for the second child) in order to satisfy the requirements of the visa. In order to satisfy the requirements of the visa, you will need to ensure that your income comes from a legitimate source, these include:

income from employment before tax and National Insurance
income you earn from self-employment or as a director of a limited company in the UK
cash savings above 16,000
money from a pension
non-work income, for example from property rentals or dividends

You will be required to prove that this income exists (if you are self-employed, you will need to produce 6 months worth of evidence).

February 17, 2020

Can spouses of British citizens naturalise after just three years’ residence in the UK?

This is not first time the law gives by one hand and take it away with another..

For those forced to make successive, increasingly-expensive applications just to remain in the country that they have made their home, naturalising as a British citizen is often the final rung of a very tall ladder. Like all ladders, the key to successfully climbing beyond the clutches of the Home Office lies in carefully following pre-determined steps — which is why getting the timing of the citizenship application wrong can be nothing short of catastrophic.
Why might it be a problem to apply for citizenship too early?

In most cases, applying to naturalise too early “only” means losing the hefty Home Office fee of £1,330; the person’s immigration status remains unaffected. Where the person lodges a citizenship application before obtaining indefinite leave to remain, however, they might very well become an overstayer. This is a common enough mistake that Free Movement has recently covered it not once but twice.

Among the would-be citizens most at risk of applying to naturalise too early are those married to British citizens. This is because for applicants in the spouse route to settlement, the qualifying period for citizenship (three years) is shorter than the qualifying period for indefinite leave to remain (five years).

What people in this position can fail to appreciate is that indefinite leave to remain, or another form of settled status, is a prerequisite for citizenship. The three-year qualification period for spouses is not, therefore, a shortcut — it’s a trap.
Residence requirements as the spouse of a British citizen

The naturalisation requirements for spouses of British citizens are contained in the British Nationality Act 1981. Section 6(2) provides:

If, on an application for naturalisation as a British citizen made by a person of full age and capacity who on the date of the application is married to a British citizen, or is the civil partner of a British citizen the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen.

Schedule 1 includes a residence period:

3. Subject to paragraph 4, the requirements for naturalisation as a British citizen under section 6(2) are, in the case of any person who applies for it—

that he was in the United Kingdom at the beginning of the period of three years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 270…

So if you only read this far, it might appear that spouses can qualify for citizenship after three years.
The catch: applicants must be settled in the UK first

Paragraph 3 of Schedule 1 also specifies that another requirement of naturalising as the spouse of a British citizen is:

(c) that on the date of the application he was not subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom.

Being free of immigration restrictions is sometimes referred to as being “settled” in the UK. Being settled can take many legal forms, and Home Office guidance lists what those are. The applicant must have one of the following on the date of their citizenship application:

a passport showing permission to remain permanently in the UK
the Home Office letter showing permission to remain permanently in the UK
a biometric residence permit (BRP) showing ILR [indefinite leave to remain], ILE or no time limits
a certificate of entitlement to the right of abode
a permanent residence card or document certifying permanent residence under the EEA Regulations

The guidance goes on to say that indefinite leave to remain granted under the EU Settlement Scheme (“settled status”) also counts.

It seems this is the requirement that trips people up when they apply to naturalise prematurely. You might — very reasonably — guess that it takes three years for a spouse to become settled. You would be wrong.
Indefinite leave to remain as a spouse

The rules on becoming settled as a spouse can be found in Appendix FM of the Immigration Rules. Most people who apply in this route will settle under this provision:

E-ILRP.1.3. (1) Subject to sub-paragraph (2), the applicant must, at the date of application, have completed a continuous period of either:

(a) at least 60 months in the UK with:

(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1.; or

(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1.; or

(iii) a combination of (i) and (ii)

Although this paragraph looks like someone fell asleep at the keyboard, what it means is that a spouse or partner is eligible to apply for indefinite leave to remain once they have completed five years with limited leave as a partner. That’s if that leave was granted in the five-year route: there is an equivalent provision for indefinite leave to remain after ten years where leave was granted in the ten-year route to settlement.

So although spouses of British citizens only need three years of residence to qualify for naturalisation, they also need indefinite leave to remain, and the earliest that they can qualify for indefinite leave as a spouse is after five years.

The only real advantage of the three-year residence period for spouses is that only absences from the last three years are counted towards the maximum number of absences. This can be useful for naturalisation applicants who had a lot of absences from the UK four or five years ago but whose absences over the last three years do not exceed 270 days.
If I can’t apply after three years, why does the law mention that period at all?

At this point, you might be wondering why the residence period for spouses under the British Nationality Act 1981 is three years to begin with, if it takes a minimum of five years to qualify for indefinite leave to remain. The answer can be found by looking at the partner route as it used to be.

Before Appendix FM entered our lives (and our hearts) in 2012, non-EU immigrants seeking to join their British or settled partners in the UK were given two years of limited leave. After that, they were eligible to apply for indefinite leave to remain under paragraph 287 of the Rules.

Here we see the original purpose of a three-year residence period for naturalisation for applicants married to a British national: you would complete two years of leave, apply for indefinite leave and then apply for citizenship one year later. With indefinite leave now mostly a five-year journey, the three-year residence period no longer serves that purpose. All it really does is cause confusion (and possibly make Kafka’s writing relevant to a whole new generation of readers).
Can anyone naturalise after three years?

Having said all that, in some very specific circumstances it is possible to naturalise after three years of residence.

There are some visa categories that allow people to settle after just three years rather than the usual five. They include the Tier 1 (Exceptional Talent) route (now rebranded as “Global Talent”), which requires the applicant to be endorsed as a world leader in their field. Only 983 such visas were issued in 2018.
eBook Naturalising as a British citizen: a guide

Full guide to the requirements and process for naturalising as a British citizen, including where the Home Office will show flexibility and where not. Case studies included throughout.

Another is the Tier 1 (Entrepreneur) route, which is now closed to new applicants, but has provisions for “accelerated settlement” where stringent criteria are met. These include a new business generating a turnover of £5 million or employing ten or more people. In practice, few qualify for indefinite leave to remain on this basis.

To naturalise after three years, anyone granted accelerated settlement must also be married to a British citizen. And in practice, where a non-EU citizen has a British spouse, they would likely enter the spouse route to settlement rather than comply with the significantly more onerous provisions of these economic migration routes.

So although it is theoretically possible to naturalise after three years of residence, in practice it is relevant to only a very small number of those married to a British citizen. For everyone else, the three-year residence period is, at best, a way of discounting excessive absences from four or five years ago, and at worst a mirage that tricks applicants into applying for citizenship prematurely.

February 6, 2020

Start-up Visa and Innovator Visa Endorsement – The Basics

New year, new business opportunities in Uk immigration zone..

Is 2020 the year you plan to launch your business on the UK market?
If you are from outside the European Economic Area, the Startup or Innovator Visa provides a route not only to enter the UK, but to work towards Settlement and British Citizenship.

The Startup Visa and Innovator Visa were launched in March 2019. They replaced the Tier 1 Graduate Entrepreneur Visa and the Tier 1 Entrepreneur Visa respectively.
The new visa categories were introduced following a 2015 review by the Migration Advisory Committee.

The eligibility requirements for getting an Innovator Visa or Startup Visa are as follows:

Innovator Visa

Both Innovator and Startup Visa applicants will be assessed on the following three merits:

Innovation – your business concept needs to be unique. A business plan which proves your idea meets an existing market need or provides a competitive advantage in a particular sector is also required.
Viability – you need to prove you have or are developing the required experience, skills, knowledge, and commercial expertise to run the business.
Scalability – evidence of a clear growth strategy and job creation plans must be provided.

You will also need to show:

Evidence you have been endorsed in this category by an approved endorsing body.
Proof of £50,000 of investment funds available. In the case of a business team applying, each member must have £50,000.
Proof you can speak English to a B2 level.
A credible business plan.
You have at least £945 in your bank accounts for 90 days prior to applying.

Start-up Visa

The Start-up Visa is for people who are at the initial stages of building their business.

The same eligibility requirements apply as listed above. However, you are not required to have £50,000 in investment funds.

The role of an endorsing body

The role of an endorsing body

An endorsing body for a Startup or Innovator Visa is required to issue endorsements to visa applicants based on Home Office guidance. Furthermore, they are required by the Home Office to:

Stay in contact with the business founders you endorse. You can choose to do this as closely as you like but, as a minimum, we ask you to make contact at checkpoints after 6, 12 and (in the Innovator category) 24 months. This is to check that they are still making progress with their business ideas.
Decide, at these checkpoints, whether you are satisfied that applicants are continuing to work on their business ventures. They should have demonstrated reasonable progress with their original ideas. If they are no longer pursuing their original business ideas, they must be pursuing new business ideas that are also innovative, viable and scalable.
Withdraw your endorsement if, at these checkpoints, an applicant has not demonstrated the above. You should also consider withdrawing your endorsement if an applicant misses a checkpoint without your authorisation.
Let us know if you have any reason to believe someone you have endorsed is working in breach of their visa conditions, although we will not ask you to police this actively. We will then investigate appropriately.

If you have an Innovator Visa, the endorsing body will provide further endorsement if you apply for an extension and/or Indefinite Leave to Remain.

How an endorsing body will assess a business?

Startup Visa

The endorsing body must provide you with a letter confirming they have assessed your business on the following criteria:

To measure your business venture against the above criteria, the endorsing body must consider:

Is there a need for the business in the UK?
Does the business bring anything new to pre-existing markets?
Has the applicant done enough market research?
Are there realistic, sustainable product goals in place?
Is there a long-term plan for the venture?
Will the business gain sufficient “traction” in the market?
Is there potential for growth in the UK?

It is vital to understand that it is not enough for your business to merely compete against existing traders – it must offer something unique.

Innovator Visa

The guidance states that although the endorsement criteria for Innovator Visa applicants is similar to that of a Startup Visa applicant, there is a greater expectation of skills and experience applied to Innovator Visa submissions.

The assessment criteria for an Innovator Visa are:

Before offering to endorse you, the body will seek your permission as to whether they can monitor your commercial progress and share any relevant information with the Home Office.

In summary

You may notice that there is little in the way of guidance for endorsement bodies. This fact has concerned many immigration lawyers and business groups who worry that, due to lack of direction and management, potentially profitable, scalable business ideas will fail to achieve endorsement.

For long-term success, it is imperative to treat your relationship with your endorsing body as a partnership. Proactively contact them to update them on your progress. Because of the lack of guidance provided, it would be prudent to ensure there is no reason for the body to withdraw their endorsement of you.

Working with an immigration Solicitor can provide a competitive advantage when it comes to gaining endorsement and entry into the UK. Your lawyer can assist you with collating the necessary documents to prove you meet the criteria of innovation, viability, and scalability and create robust covering letters to support your application.

It’s your future. Don’t leave it to chance

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