OISC LEVEL 1 Course extracts

Extract from the “IMMIGRATION RULES AND HOW TO USE THEM” section:

No one knows everything and remembers all the rules! The trick is to know how to use the Immigration Rules and where to find  the specific information. 

The Rules may change anytime, and they do change a lot, but if you know how to use the Rules you could check the requirements or check the changes at any time. It is much more reliable than calling the UKBA call centre and sadly very often getting the wrong information.

For example, things like whether a migrant can switch a visa category while in the UK or whether a migrant can work or whether a particular English test is acceptable are all a matter of the Rules, not a matter of guessing.

The ‘Other way around’ principle:

We call it ‘other way around’ because many people tend to think this way: “I am on a Tier 5 visa and want to know if I can apply for a Spouse visa inside the UK”, then they go on the Immigration Rules webpage for the Tier 5 category and try to read the rules there. Understandably, they only find the rules about how to get a Tier 5 visa, which they already have, and not a Spouse visa.

What you need to do is to act the ‘other way around’, ie to check the rules of the category your client is looking to apply for, not the rules of the category in which he/she already has a visa. In our example of switching from a Tier 5 to a Spouse visa it is the Spouse visa rules that one needs to read – to determine if he/she can qualify.

 

Extracts from the “CRUCIAL TO GET THE BASICS!” section:

What is Switching?

Switchingis not an official term. Switching simply means changing a visa category while inside the UK, ie switching from one to another, such as from a Tier 4 Student to a Tier 2 General; or from Tier 4 to a Spouse visa. Officially it is called ‘applying for a leave to remain in a Tier 2 General category’ or ‘applying for a leave to remain as a Spouse of a UK citizen’. So, we can simply say ‘Switching from a Student visa to a Spouse visa’.

The significance of switching is this:switching means applying inside the UK and it is only allowed if the Rules specifically allow so. If switching is not allowed then the applicant has to return to their country and apply for a visa from there, which means he/she would be applying for an Entry Clearance.

How to determine if switching is possible?

Continues in the course material.

What is the Date of Application and why it is so important?

Imagine this: you are making an application today but tomorrow the Rules are changing, which rules would apply? Or you have made an application a month ago, your visa expires in 2 weeks time and your application is not going to be decided before then, are you going to become an overstayer through no fault of your own?

A Date of Application idea deals with such issues. If the date of your application is before the Rules changed then your application is going to be considered under the Rules in place before the changes. For example, Spouse/Partner visas rules were significantly changed on 9 July 2012, yet those who applied before that, even on 8 July 2012, had their applications considered under the old rules, even if the decision was made a few months after the rules changed.

If the date of your application is before your last visa expired then your status remains the same as it was on the date of application for as long as it takes for a new application to be considered. However long it takes, even if the last visa expired by then. Officially it is extended by virtue of section 3C ofthe Immigration Act 1971, which automatically extends the ‘last visa’ for as long as it is going to take for a decision on the new application. This means migrants do not become overstayers through no fault of their own?

When is the Date of Application?

Continues in the course material.

 

Extract from the “POINTS-BASED SYSTEM – WORKING IN THE UK” section:

Tier 1 (Investor) in Questions and Answers:

(such tables are provided for most categories under Points-Based System):

Is switching allowed?

Yes, from many categories, as per the Immigration Rules.

How much money is needed for the initial visa?

 

Before 6 November 2014:

Either: applicant must have £1 million of his/her own funds (not borrowed);

or

applicant must have personal assets of £2 million plus have £1 million in loans from a regulated UK financial institution.

From 6 November 2014:

Must have £2 million of funds available to invest.

If the funds are in a foreign currency

Use www.oanda.com

If the funds are outside the UK

Documents from financial institutions must not only confirm the funds but also confirm that the bank/financial institution  is regulated by the home regulator (equivalent of Financial Services Authority in the UK) and specifically confirm that the money can be transferred to the UK.

The latter (money transferrable to the UK) is in the Rules because some countries, such as China, have currency controls.

English language

Not required.

Maintenance: funds held for 90 days

Not required.

 

How long a visa for?

Initial application:

Entry Clearance 3 years + 4 months. Leave to Remain 3 years.

Application form

Tier 1 Investor inside the UK

VAF9 outside the UK

Is same-day service available at the UKBA?

No, only postal.

Are extensions allowed and how long are they for? Is there a limit on time spent in the UK in this category?

Extensions are allowed and valid for 2 years.

There is no limit on the time spent in the UK on this visa.

Requirements for an extension (in a nutshell)

Those who applied for an initial visa before 6 November 2014: Investing min £750,000 in the specified ways, such as in the UK government bonds, shares of the UK-based trading companies or loans to the UK-based trading companies.

Such investments must be done within 3 months from entering the UK (for those who had a visa issued abroad)  or within 3 months from date of issue of a leave to remain (for those who had a visa issued in the UK).

The balance, up to £250,000, can be either also invested as above or can be kept on a bank account in the UK or can be invested in a property in the UK.

Those who applied from 6 November 2014 onwards: need to invest the whole amount of £2 million within 3 months.

Work allowed?

Yes.  

Self-employment allowed?

Yes.

Does it lead to an Indefinite Leave to Remain?

Yes, after 5 years in most cases.

If the applicant has invested £5 million – ILR after 3 years.

If the applicant has invested £10 million – ILR after 2 years.

Are dependants allowed?

Yes, spouse and children under 18 yo.

Switching to a dependant visa  is now allowed inside the UK. Then dependants can follow the main applicants for extension(s) and eventually to an ILR.

Beware!

This category is not for buying a property or properties in the UK, as we are often asked. 

 

Extract from the Tier 2 General sub-section:

Special arrangements for Tier 4 Student visa holders switching to Tier 2 General inside the UK:

If a student meets all of the following requirements then it is possible to switch inside the UK:

-    The applicant graduated with a with a Bachelor or Master degree from a UK University or with a Postgraduate Certificate in Education or Professional Graduate Diploma of Education. Or have completed a minimum of 12 months study in the UK towards a PhD during the current Tier 4 visa or during a period of continuous stay which includes the last visa.  

If the above condition has been met, the applicant can switch to Tier 2 General inside the UK, which brings the following benefits:

-       There is no annual limit on such applications. Certificate of Sponsorship (COS) will be on an unrestricted kind.

-       There is no need for employer to advertise the job first, i.e. no need for a Resident Labour Market Test.

-       Salary can be at a New Entrant level, which is lower than the general, Experienced, level. 

 

Extracts from the “SPOUSE, PARTNER AND FIANCEE VISAS” section:

What is the difference between civil partners, unmarried partners and same-sex partners?

Civil Partnershipis a registered partnership between the 2 people of the same gender, such as 2 men or 2 women. Civil partnership can be registered at a Register Office and partners have a certificate, similar to a marriage certificate. For the purpose of visas civil partners have the same rights as spouses, ie civil partners have the same rights as a husband and wife do. In this course we cover civil partners under the Spouse visa as it is the same category.

If you are a man and a woman but not married then you would be Unmarried Partners,  providing you have lived together for at least 2 years in a relationship like a marriage. In other words, you have been married in all but name for at least 2 years. Most importantly, you can prove it, such as providing the documents showing your cohabitation: utility bills, tenancy agreements, bank statements, official letters and so on.

If you are 2 men or 2 women but have not registered a civil partnership then you would be Same-sex Partners, which is the same category as for unmarried partners and have the same conditions as above, eg living together for 2 years.  In this course we cover same-sex partners under the Unmarried Partner visa as it is the same category.

The main thing about Spouse/Partner visas is that there are Old Rules and New Rules, like 'before and after', before 9 July 2012 and from 9 July 2012 onwards. 'Before' is the Old Rules and are still valid for some applications, still under Part 8 Family Members. 'After' is the New Rules and are in the Appendix FM. This is why both Part 8 and Appendix FM are still in the Rules! To make it more confusing, some parts of Part 8 are still valid and have not changed, such as the rules for PBS Dependants.

You'll soon see that the date itself, ie date of issue of a visa, is not always an indicator. So, the easiest way to distinguish is length of thevisa.

Entry Clearance (visas issued abroad):

Old Rules - 2 years and 3 months

New Rules- 2.5 years and 3 months

Residence Permit (visas issued inside the UK):

Old Rules - 2 years exactly

New Rules- 2.5 years


The Old versus the New - Summary of changes:

The Old rules (Before 9 July 2012)

 

The New rules (after 9 July 2012)

Immigration Rules: Part 8 Family Members

 

Appendix FM

Spouse/Partner visa for 2 years, then permanent residency.

 

 

Spouse/Partner visa for 2.5 years, then extension for another 2.5 years, only then permanent residency after 5 years.

Spouses/partners who have been together for 4 years outside the UK were given a Permanent Visa straight away. Or were given a 2 year visa with a note of ‘KOL REQD’ meaning that once the applicant has passed a Life in the UK Test (or completed ESOL with Citizenship) he/she could apply for an ILR without having to wait for the whole 2 years.

 

This has been stopped, everyone now gets a 2.5 year visa, the extension for another 2.5 years and only after 5 years - a permanent visa.

Financial Requirement: adequate maintenance. Support from the third party was allowed (such as from parents) and a future prospects of employment was taken into account.   Financial Requirement: income of £18,600 per year or savings of £62,500. The amounts are higher if the children are involved. Support from the third party is no longer allowed and future employment prospects can't be taken into account.

Continues in the course material

 

 

 

Extract from the “EU/EEA REGULATIONS (EUROPEAN LAW)” section:

European law is a completely separate system, it runs in parallel with the UK law and it is completely separate from the Immigration Rules.

Legislation and Terms

The Free Movement of Persons Directive 2004/38 ECsets out the right of EEA nationals and their family members to move and reside freely within the territory of the EEA Member States. The Immigration (European Economic Area) Regulations 2006 ('The Regulations') and subsequent amendments transpose the Free Movement Directive into UK law. The Regulations describe the rights of EEA nationals and their family members to enter and reside in the UK. 

There are no points or Tiers, no police registration, no TB testing,  no English language requirement (except for some Croatian workers), no Financial Requirement and no specified evidence. Perhaps we should add ‘not yet’ but for the moment the things stand like this and in general, the EU is considered to be ‘easier’, ie more immigrant-friendly.

In most cases there are no even compulsory ‘visa stamps’.  Under the UK law getting a visa means getting the rights, as allowed by that visa. Under the EU law getting a visa means confirming the rights the person already has anyway, so in most cases applying for a ‘visa stamp’ is voluntary (but not in all cases). 

Extract from the “BRITISH CITIZENSHIP” section:

Nationality: citizenship, naturalisation, what does it all mean and what are the differences?

Naturalisation is a path to Citizenship. And Citizenship is one of the types of British nationality. We'll start from the one with the broadest meaning -Nationality.

British nationality:

It consists of British Citizenship, which is the most common type. This is what people mean when they say "I want to apply for a British passport". A British Citizen has all the rights to live in the UK, to have a British passport etc. 

There are other types of British nationality, usually based on Britain's past as a British Empire. There are British Overseas Citizens, British Citizens (Overseas), British Subjects and British Protected Persons. These are NOT British citizens and do not have a right to live in the UK. Most are subject to the immigration control in the same way as Australian, American or Chinese nationals.  

British Citizenship:

As above, it is the most common (and most desirable) type of British Nationality. British Citizenship can be achieved through either Naturalisation or Registration. 

Naturalisation:

It is a way of acquiring British Citizenship in your own right. After being settled (having an ILR) and spending at least 5 years in the UK one can become a British citizen through Naturalisation. This is not connected to the person's family at all. Result will be a British Citizen, then a UK passport (a 'passport book'). 

Compare with Registration,the other way of acquiring Citizenship: children under 18 yo become British through Registration, based on their parents' status. For example, when their parents are applying for Naturalisation on AN form, the child(ren) could apply at the same time for Registration on MN1 form (look at the forms and you'll see adults' form says Naturalisation while the children's form says Registration). Or a child is born in the UK to parent(s) on a Tier 1 visa can be registered as British once at least one parent gets an ILR. 

‘BRITISH BY DESCENT’ AND ‘BRITISH OTHERWISE THAN BY DESCENT’ – the difference.

For someone who has just naturalised or registered as British it does not make any difference for  his/her own life whether he/she is British by descent or otherwise than by descent. Outcome of Naturalisation is a British Citizen otherwise than by descent.

The difference is how - and if - he/she can pass British citizenship to their children.

Many of us, especially those British by birth, assume that parents can automatically pass on their nationality to their children. Wrong! Continues in the course.