Leave Outside the Rules, Part 3 of 3: Switching
In the highly anticipated final post in this series, I look at the reasons and ways that people with leave to remain in the UK outside the rules can switch onto one of the visa routes within the rules, and the challenges that can be found in this course of action.
In our previous blog,
In my last two posts of this 3-part series, I talked about the ways in which people may be granted leave to enter or remain in the UK outside the rules, the reasons for which people may have to go down that route, and the challenges in obtaining leave through this loophole. The conclusion I came to in both posts was that while it is better to have the current system than no system of discretionary leave at all, leave outside the rules really should only be a last resort for those seeking to stay in the UK and that people should exhaust all other options first.
It is, therefore, logical that people with leave outside the rules may choose to switch to one of the visa routes within the immigration rules if given a chance. But when is it possible to switch from outside to inside the rules?
The simple answer is: When things have changed. As we have seen in the previous posts, leave outside the rules is generally granted when someone is missing at least one key requirement to qualify for a visa route within the rules, but there are compelling reasons to grant them leave anyway. So, if something happens that means you now meet the requirement in question, either because there is a material change in circumstances or because a previously missing piece of evidence appears, a switch to the visa they initially applied for should be possible. Alternatively, something may happen that means you are now eligible for a completely different visa than the one for which you initially applied.
In the last post, we looked at the 10-year route to settlement for a partner or a parent. To summarise, parents or partners who do not qualify for the 5-year route to settlement as they do not meet one of the requirements may be granted leave under a 10-year route to settlement instead. While there are provisions within the rules to disregard the financial or language requirement and grant leave on the 10-year route, the guidance on leave outside the rules allows for leave on the 10-year route in exceptional cases to be granted to people who do not meet one of the other requirements. In all cases of a partner or parent on the 10-year route, you can switch to the 5-year route within the rules as soon as you meet the requirement that you had previously not met.
What kind of thing do we mean? Well, the most obvious example would be a person who did not originally meet the relationship requirements (this person was not married to their partner, they had not been living together for at least two years and did not intend to get married soon) but was granted leave because of some exceptional circumstance. If this person suddenly decided that marriage was a great idea after all, he or she should be able to switch to the five-year route.
For those with leave to remain on the basis of their private life in the UK, either because of their 20-year residence in the UK or because of significant obstacles to reintegration into their home country, things are a little more complicated.
While they can still switch over in theory, it requires a lot more work to do so. For partners or parents in a situation like that described in the previous paragraph, they have already been recognised as a partner or parent by the UK government in principle, they have just fallen short of ticking all the boxes. But if you are on the private life route, the only option is to switch to a completely different route and to do that they will have to show they meet all the criteria. In other words, they are starting from scratch.
How it would affect: YOU
If I may use an analogy, a parent or partner switching from the 10-year route to the 5-year route is like an undergraduate student who has passed almost all of his exams but keeps deferring the last one, so he or she still has not graduated. All he needs to do to graduate is pass that one exam. For someone on the private life route, meanwhile, they are in the position of the undergraduate who cannot complete their previous degree and is applying for a completely different degree course. In all these cases, one has a lot more to do than the other.
This all means that while those on the private life route have the option of switching, it requires a much bigger change in their circumstances. For example, they can switch to a spouse visa if they get married, but they will need to meet all its criteria.
More broadly, this shows there are potential risks and negative consequences associated with switching from leave to remain outside the rules to a visa route within the immigration rules.
Potential Risks and Consequences
First, there is no guarantee that an individual’s application for a different visa will be successful. If the application is refused, this could cause complications. While it is likely that they will be granted an extension of their existing leave outside the rules, this is not guaranteed.
Second, as already mentioned above, switching visa routes usually requires the person applying to meet new eligibility criteria, which may end up being harder to meet than those for an extension of their leave to remain outside the rules. For example, some visa routes may require a higher level of English language proficiency or a certain level of financial support.
Finally, the process of switching visa routes can be time-consuming and, in order to be successful, may require significant financial investment, as often the process of switching routes will require the instruction of legal representatives.
That is not to say there are no potential upsides to switching to a visa route within the immigration rules because there are.
One potential upside is that switching to a visa route within the immigration rules can provide greater stability and access to opportunities, such as the ability to work or study in the UK, without the fear of removal or an application for an extension being refused. Another potential upside is that switching to a visa route within the immigration rules may provide greater access to benefits and services, such as healthcare or housing, which may be restricted for those with leave to remain outside the rules.
These can be particularly beneficial or individuals with leave to remain outside the rules who have established a significant private or family life in the UK and wish to remain in the country long-term. Because leave outside the rules is only granted in exceptional circumstances, applications to extend it will be heavily scrutinised to ensure those exceptional circumstances still apply. If they do not, then the extension will be refused. And because the criteria are so discretionary, the chances of the decision maker deciding that circumstances are no longer exceptional are much higher. All in all, having leave outside the rules is a very uncertain state of affairs, which is why switching to a route within the rules will always provide greater security.
It is important for individuals considering switching visa routes to weigh the potential risks and consequences carefully. The best way to do this is to seek the services of legal representatives who can ensure they understand the process and make informed decisions about their future that maximise their chances of successfully being granted leave to remain in the UK.
- Family Policy: Family life (as a partner or parent) and exceptional circumstances, Version 18.0, Official Home Office Guidance published on 11 August 2022
- Discretionary Leave, Version 9.0, Official Home Office Guidance published on 16 December 2021
- Leave Outside the Immigration Rules, Version 2.0, Official Home Office Guidance published on 9 March 2022
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