Larkhill: Wednesday 6 March 2019
To apply to remain within the Armed Forces immigration rules you must be on a visa (or with entry clearance) that was issued for more than six months. You must also meet the minimum income requirement and the English language requirement.
Warning – if you enter the UK on a visit visa with the intention of remaining in the UK permanently, then you are not a genuine visitor and have essentially made false representations to enter the UK. Making false representations or seeking entry for a purpose not specified by your entry clearance, can affect your ability to enter the UK if you are stopped at the border and may affect any future applications to enter.
If you are in the UK on a visit visa, your only option, if you wish to remain here, is to apply under the wider Appendix Family Migration (FM) rules which allows for the caseworker to consider whether there are ‘exceptional circumstances’ in the case. These exceptional circumstances are known as para Ex.1.
If you have a British child, then the caseworker will assess that there are exceptional circumstances and will grant leave under para Ex.1.
If you don’t have a British child, then the caseworker has to assess if there would be insurmountable obstacles to family life continuing out of the UK.
What are insurmountable obstacles?
“’Insurmountable obstacles’ means very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.”
Does the fact that the sponsor is a soldier mean that there are insurmountable obstacles?
It appears that the Home Office is considering that there are insurmountable obstacles in some cases, probably because if the soldier is still within his first four years he is unable to return to the home country to be with his family because of his minimum commitment period. However, we don’t know how many cases have been successful and how many are being refused. It is very much dependent on the caseworker’s assessment.
How long is it taking these applications to be considered?
On average it is taking up to 18 months for an application to be processed.
What is my immigration status during this time?
If you make an application prior to the six months’ leave expiring, then the conditions of the visa you were on continue – so you are not illegally in the UK. However, the conditions of a visit are that you are not entitled to work, to study, to open a bank account and may face difficulty if you need medical treatment. They also cannot travel out of the UK, so if your soldier is posted overseas you are not able to accompany him.
Am I entitled to live in SFA with a visit visa?
No, the Unit F&C guide states: A spouse / partner / children travelling on a standard visitor visa will not be entitled to accompanied status or occupancy of Service Family Accommodation (SFA). SP should not be allowed to occupy SFA until the SP can prove to the unit that they have the correct entry visa and not a visitor visa.
If a visa is granted, what will I get?
You will receive a visa for 2.5 years on a 10-year route to settlement. You will need to re-apply for a visa every 2.5 years (at a current cost of £1,033 per application) until you have been in the UK for 10 years, at which point you will be eligible for Indefinite Leave to Remain (ILR). You should be aware that whilst you are on the 10-year partner route, your time out of the UK, if you are posted overseas, will not count as residence in the UK. You are able to switch onto the shorter Armed Forces route once you meet the minimum income and other requirements. This will give you a visa for five years which you won’t need to renew until you apply for ILR.
What happens if the visa is refused?
You are likely to be served with a Notice to Remove and will be given Immigration Bail. If you don’t leave the UK within 7 days, you will face removal, which could prevent you from re-entering the UK for 10 years.
How do I apply for the visa to remain?
You will need to apply online at www.gov.uk/government/publications/apply-to-extend-your-stay-in-the-uk-form-flrfp
You will be applying on the 10-year partner route. Supply as much information as you are able. AFF is unable to provide supporting letters.
On 2 November 2018, UK Visas and Immigration launched a new system for visa applications made within the UK. The new system will work in a similar way to the visa application process to come into the UK. Under the new process, application forms are completed online – you’ll also pay online, including the biometric enrolment fee.
You’ll then be redirected to Sopra Steria’s website to book an appointment to attend a VCAS centre in person, where you will enrol your biometric information. There are six core service centres offering free appointments and 50 ‘enhanced’ service centres offering charged appointments.
Supporting documents can be uploaded online or scanned at the appointment for an added fee. You will retain your original documents, including your passport, while the application is being decided.
This does not mean that all applications will be decided on the day of the appointment, however. You must still pay an additional charge to have your applications decided faster than the standard six months.
Can I travel while the application is pending?
Once an applicant has attended their appointment, although they will retain their passports, they should not travel or their application will be considered withdrawn.
Further information can be found here. We would be interested to know what you think of the new service and how much you had to pay for your appointments. If you experience any problems with the online forms, please get in touch.Back to top
The Home Office has confirmed that soldiers can use their back-dated pay, as a result of the recent pay rise, to meet the Minimum Income Threshold to bring their spouses to the UK. You will not have to wait until you have been receiving your new salary for six months. If you now meet the requirement to bring your family to the UK, you can apply once you have received your lump sum. You must provide bank statements and payslips from the previous six months. Click here for further information about the Minimum Income Threshold.Back to top
The SET(AF) form is now available to complete online. This should be a quicker and easier way of completing the form. Please let us know if there are any problems.Back to top
The new rules state that other sources of income will be considered to meet the minimum income requirement in certain circumstances. The applicant must show that there are ‘exceptional circumstances’ which could result in ‘unjustifiably harsh consequences’ for family members if the visa were to be refused. Other sources of income include financial support from a third party and/or prospective earnings from employment of the applicant. If approved the applicant will be granted leave on a 10-year route to settlement. Further information about these changes can be found on the information sheet at this link.
The guidance produced by the Home Office states that it is likely to only be in ‘unusual circumstances’ where applicants will be allowed to rely on these other sources of income. AFF has so far assisted one soldier with an application under these changes, we are currently awaiting the results of this application. Until we know more about the likelihood of success, we would advise against making an application under these new rules. If you are thinking about making such an application you should contact us first.Back to top
The latest tribunal statistics, published in March 2017, show that the average waiting time for appeals to be heard in the immigration tribunal for visas to enter the UK is 83 weeks.
With 51% of all entry clearance appeals being allowed, that is a very considerable impact on a lot people wrongly kept apart by poor quality immigration decisions. It is presumed that the huge waiting times are linked to the recent reported shortage of immigration judges.Back to top
After four years of raising this issue and pushing for a change in policy, HMPO have waived the requirement for Service personnel in the UK and overseas to have to attend an interview before they can get a full 10-year passport. Soldiers will no longer be issued with a one-year passport. Unfortunately, the process for spouses is still being reviewed; spouses will therefore continue to be issued with one-year passports for the time being. For further information, please click here.Back to top
From 3 November 2016 it will no longer be possible to make a valid application within 28 days of the previous leave expiring. However, an out of time application will not be refused if the Home Office considers that there is ‘a good reason beyond the control of the applicant or their representative why an in time application could not be made, provided the application is made within 14 days of the expiry of leave’. These new overstayer rules are found at para 39E of the Immigration Rules.Back to top
AFF is delighted to have received a grant through the Covenant Grants Fund to provide much-needed practical support to Foreign & Commonwealth (F&C) Army families dealing with Domestic Abuse (DA).
This new support is available to any F&C spouse of a serving person in any location in the UK or overseas. Support is limited by available funding and is not a self-referral scheme – families must be referred to us by a relevant welfare contact or organisation..
Supporting the F&C community.
Our F&C Specialist has been providing qualified immigration advice and information to F&C victims of DA for a number of years. At a policy level, they were instrumental in lobbying for a change to the immigration rules to allow spouses of soldiers to apply to remain in the UK if their relationship breaks down because of DA.
However, due to a lack of resources, at an individual level their assistance has so far been limited to providing immigration advice or information via phone or email – far from ideal for these vulnerable spouses who often need practical help gathering evidence, writing statements and completing applications. .
This new funding will allow us to help spouses directly with their application form to remain in the UK during a very stressful time.
Supporting victims of DA.
The grant will also help us to work closer with support organisations to develop best practice working methods when dealing with an F&C case and to inform others about the unique problems that many F&C families can face.
If you are currently supporting an F&C spouse who is a victim of DA and who needs immigration advice, then please contact AFF at firstname.lastname@example.org. Download a leaflet detailing the service on offer.Back to top
The MOD has made it possible for three of the UK’s leading credit unions to join forces and make simple savings accounts and loans available to Forces families. The money is taken directly from your soldier’s salary. This is a great way to plan ahead for paying for ILR or Citizenship. For full details, visit www.joiningforcescu.co.ukBack to top
A few people have been told by the UKVI International enquiry service that they must select the ‘exempt’ option when completing the online application for a visa for a family member to enter the UK. This is wrong!
The ‘exempt’ option is for International Forces family members only. If you apply using this option, your application is likely to fail. For information on how to apply for a visa for a spouse or child, click here.Back to top
The Government’s “right to rent” scheme requiring landlords to conduct checks on the immigration status of tenants came into force on 1st February 2016. Private landlords can now be fined up to £3000 for renting property to people who don’t have the correct visas to remain in the UK.
Given the complexities of immigration status and visa documents, it is clear that this new requirement is going to lead to some people being wrongly turned away and the possibility that black and Minority Ethnic people will be discriminated against.
AFF is concerned that these new requirements are going to affect soldiers and spouses on transition who may be looking to rent from a private landlord. If you are affected by this new requirement we would like to hear from you.
Further information about the new scheme can be found here.Back to top
Many F&C spouses in the UK are wrongly on a discretionary leave visa due to an incorrect application for Indefinite Leave to Remain (ILR) after their soldier became a British Citizen.
Previous rules prevented spouses from applying for ILR once their soldier had naturalised until two years had been spent on a different visa.
Discretionary leave was a route created for failed asylum seekers and should never have been given to our spouses.
AFF has lobbied for change on this issue since 2011 and has at last succeeded in bringing about a change in the rules to enable these spouses to apply for ILR.
Find out more: If you’re affected by this issue, further guidance can be found at page 11 of this link.Back to top
Some of you may have heard about the recent change to immigration rules which mean that migrants must now be earning at least £35,000 to stay in the UK after six years.
Army families should rest assured that this new rule does not apply to military personnel or their dependants, who have their own routes and thresholds.
The rule applies specifically to those who enter on the Tier 2 routes (point based system) only. Tier 2 is for those coming to the UK to work.Back to top
Since 2011, AFF has pushed for policy change to address the fact that children born to military F&C families during overseas assignments are not born British – a clear disadvantage due to posting location which leaves families having to pay £749 to apply for Citizenship.
We are very pleased to announce that the MoD has now agreed to start funding the cost of these applications for children born on or after 1 April. Unfortunately, applications for children born prior to this date will not be eligible for reimbursement.
Find out more: Your soldier can find further information in the newly published DIN ‘Family Migration Rules for UK Armed Forces family members who are Non-British’ 2013DIN01-142.
“AFF - just a thank you for all that you do!!”
“What an awesome organisation”
“Thank you so much Army Families Federation!”Find out more