Can I Change My Tier 2 Visa on the Basis of My Child with a British Spouse?

Having come to the UK from outside of the EEA to work on a tier 2 visa, many people each year marry or enter into a civil partnership with a British spouse and have a child. This then opens up a new range of options for the tier 2 visa holder, potentially allowing them to switch to another visa type, or even to apply for Indefinite Leave to Remain (ILR).

Switching from a tier 2 visa

As a tier 2 visa holder, if you have a British partner/spouse and child, you will be able to switch to another visa type, or even for ILR. Your immigration options will depend on your exact circumstances and plans for the future; these options include:

Applying for ILR after five years in the UK on a tier 2 visa

If you have already been working in the UK for five or more years and have been absent from the country for no more than 180 days in any consecutive 12-month period during that time, you may be eligible to apply for ILR. This is possible based on your time in the UK rather than your British partner and/or child. You will also need to prove that you meet the minimum income requirement as follows:

• £36,200, if applying for ILR on or after 6 April 2020

• £36,900, if applying for ILR on or after 6 April 2021
• £37,900, if applying for ILR on or after 6 April 2022

In addition, you will need to meet the English language requirement and pass the ‘Life in the UK’ test.

Switch to a family visa – Partner or spouse

Another option is to apply for a family visa as a spouse or partner. The main benefit of a family visa, when compared to a tier 2 visa, is that you will no longer be subject to immigration restrictions on your work (you will not be allowed to access funds, however). You can also apply to switch to a family visa while already in the UK, meaning you will not need to leave your partner and child.

The downside of switching from a tier 2 to a family visa, however, is that the time you have accrued in the UK towards ILR will be reset. Hence if you have spent several years already in the UK, this may be an important consideration.

To switch from a tier 2 visa to a spouse/partner family visa, you will need to meet at least one of the following requirements:

• be in a civil partnership or marriage recognised in the UK
• have been living with your partner/spouse for at least two years when you apply

• meet the English language requirement
• have the financial income resources to support yourself and your dependents

Crucially, if you do not meet one of these requirements, you may still be eligible if:

• you have a child in the UK who is a British citizen or has lived in the UK for seven years, and it would be unreasonable for them to leave the UK
• there would be very significant difficulties for you and your partner if you lived together as a couple outside the UK that could not be overcome
• it would breach your human rights to stop you coming to the UK or make you leave

Under the first of these requirements, if you are ineligible to apply for a family visa on the basis of your relationship with your child’s partner, you may be able to apply if your child is registered as a British citizen.

Switch to a family visa – Parent

You can apply for a family visa as a parent, but the current immigration rules make it clear that if you are eligible to apply as a partner, you must do so. To apply for a family visa as a parent of a British child, the child must be either under 18 when you apply or have been under 18 when you were first granted leave to be in the UK and currently not living an independent life (i.e. they still live at home, are not married and do not have children). It is important under this visa route that you have sole or shared parental responsibility for your British child. As part of the application process, you may need to provide evidence that you are currently playing an active role in your child’s life. Such evidence may include a letter from the child’s school confirming that you drop off / collect your child and attend parent’s evenings, or from the child’s other parent explaining your contact with your child.

The Home Office will also verify that you meet the English language requirement and can support yourself in the UK without seeking access to public funds.

If your application for a family visa (partner or parent) is successful, you will be given permission to remain in the UK for 2.5 years, after which you can then apply to extend for a further 2.5 years. At this point, you will then be able to apply for ILR.

Final words

The decision as to whether you should switch from a tier 2 visa, and if so, which visa you should then apply for will depend on your mix of circumstances. If you are already close to ILR eligibility, remaining on a tier 2 visa may be preferable given that the time you have already been in the UK will not be reset for the purposes of ILR eligibility. Most importantly, if you are unsure of the best option for you and your family, it is highly advisable to speak to immigration Solicitors. They will listen to the details of your case and ask questions that will allow them to recommend the best course of action. This may not only save you money (e.g. by reducing the amount of money you pay towards the healthcare surcharge and application fees) but may also reduce the time needed to secure ILR and citizenship, allowing you to focus on enjoying your family life in the UK.