Individuals in the UK on a Spouse Visa have an unrestricted right to work, but there are circumstances which may necessitate switching to a Tier 2 General work Visa. It is more common for Tier 2 Visa holders to switch to a Spouse Visa, especially given the reduced working restrictions imposed (i.e. your Visa will not be tied to a specific sponsoring employer).
In order for a Spouse Visa to be valid, holders must be in a 'genuine and subsisting' relationship with their UK partner (as set out in Appendix FM paragraphs E-EC.2.6. and ELTRP.1.7). As such, if you separate from your partner while in the UK, and wish to remain, you will need to seek an alternative immigration status.
According to the immigration rules, a ‘genuine and subsisting relationship’ is determined by a range of factors, including that:
• You and your partner are in a current, long-term relationship
• You are co-habiting with your partner
• You have children together (biological, adopted or step-children) and shared responsibility for them
• You have shared financial responsibilities
You may be able to switch from a Spouse Visa to a Tier 2 Visa, but this cannot be automatically assumed. You will need to fulfil (and provide evidence you meet) a number of criteria before successfully making this change of immigration status. The Home Office only allows switching to a Tier 2 Visa while in the UK if you have, or were last granted, leave under the following categories:
• Tier 1 Visa
• Tier 2 (Sportsperson) Visa
• Tier 2 (Minister of religion) Visa
• Tier 2 (Intracompany Transfer) Visa under the Immigration Rules in place before 6 April 2010 and you’re applying to change sponsor
• Tier 4 Visa - if you have an eligible qualification, will complete your course in 3 months, or you’ve done at least 12 months of a PhD
• Start-up Visa
• Innovator Visa
• a dependent partner of someone with a Tier 4 Visa
• a representative of an overseas business
This means that to switch to a Tier 2 Visa from a Spouse Visa, you will need to do so from outside of the UK.
Tier 2 is a points-based system (PBS) whereby you will need to fulfil the eligibility requirements; these include proving that you:
• have a valid certificate of sponsorship for your job
• are being paid an appropriate salary for your job (typically £30,000 – but this can vary depending on your job)
• have sufficient your knowledge of English
• have personal savings of £945 (which must be in your account for 90 days before you apply) so you can support yourself when you arrive in the UK
• show you can travel and your travel history over the last 5 years
• have tuberculosis test results if you’re from a listed country
• provide a criminal record certificate from any country you’ve lived in for 12 months or more in the last 10 years if you’ll be working with vulnerable people
Under the Tier 2 PBS system, the Home Office issues sponsor licenses to eligible employers, who can in turn and subject to specific conditions, provide certificates of sponsorship (CoS) to employees from outside of the EU/EEA. If you are currently employed, it is recommended that you speak to your employer as soon as possible to explain your circumstances and determine if they will be able to sponsor you under the Tier 2 system. They may need to apply for a sponsor license (which itself is not a fast process) if they don’t have one already and then complete a resident labour market test (RLMT) to ensure that no settled worker can fulfil your role. It should be noted that the requirement to undertake an RLMT will be removed from 1st January 2021.
If granted, your CoS must be used within three months and you will be restricted to only working for your sponsoring employee. This, however, will not prevent you from seeking sponsorship from another employer when you are in the UK.
A note on domestic violence in UK immigration law
The Home Office provides specific guidance to assist victims of domestic violence and abuse, including those on Spouse Visas. According to the guidance, the domestic violence (DV) provisions of Appendix FM section DVILR apply to applicants who have previously been granted leave to enter or remain as the:
• Civil partner, or;
• unmarried or same-sex partner of any of the following:
• British citizen
• settled person
• member of HM forces who has served for at least 4 years
If you have been a victim of domestic abuse while in the UK on a Spouse Visa, you may be able to apply for Indefinite Leave to Remain (ILR). Domestic violence and abuse is defined as:
“Any incident or pattern of incidents of controlling, coercive or threatening behaviour,violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. This can include, butis not limited to, the following types of abuse: psychological, physical, sexual, financial, or emotional”.
In order to be eligible for ILR as a result of domestic violence in your relationship, it will be necessary “to produce evidence to establish that the relationship was caused to permanently break down before the end of that period [the last period of leave] as a result of domestic violence”.
Switching from a Spouse Visa to a Type 2 Visa is no mere formality, but it is possible. Given the range of complexities involved, it is recommended that you seek the guidance of specialist immigration Solicitors who can assist you through the process. Based on your exact circumstances, they may also be able to recommend another approach. Whichever route you choose, be assured that if your intention is to remain in the UK, every effort and endeavour will be made to make sure this objective is achieved.
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