Switching into a dependant visa in-country

 

“ADAMANTINE…

(Zhang [2013] EWHC 891, para.44.)

 

Switching into a dependant visa in-country.

Introduction
The case of Quila, forced the Home Secretary to change the law because a policy applied dogmatically, is disproportionate and incompatible with Article 8 rights.

Zhang is the case in which the Court’s interpretation has forced the Home Secretary to make changes to the Immigration Rules because of the ‘dogmatic’ application of a policy; in this case, Section 319C(h)(i).

This used to read:-

(h) “An applicant who is applying for leave to remain, must have, or have last been granted leave:

(i) as the Partner of a Relevant Points Based System Migrant…”

 

Background to Zhang

The Claimant entered the UK in September 2003 as a student. In 2009, she was issued with a Certificate of Sponsorship (CoS) to work as a research associate and made a successful Tier 2 application. The job ended in 2011 due to a lack of research funding. The same year she married her partner of three years.

She was offered a job but on condition that her leave did not require a CoS.

At this point, her husband was applying to extend his leave under the Tier 1 (Post Study Work) category. The Claimant sought to ‘switch’ her status and become the ‘Partner of a Relevant Points Based System Migrant;’ thereby meeting the University’s demand.

However, due to the requirement in rule 319C(h)(i), the Claimant’s application could not succeed. Therefore, she returned to China as advised and made a successful application to re-enter. Unfortunately, she was separated from her husband for three months and in the intervening period, her job offer had been withdrawn.

On her return, she challenged the legality of 319C(h)(i). The Home Secretary’s arguments defending the provision were “unappealing” to Turner J and were considered to be a disproportionate interference to the right to a family life under Article 8 ECHR.

 

Previously…

The practical effect is that a person could not switch from being the main Applicant on a points based system visa to being the dependant on a PBS visa without leaving the country.  So, in Zhang the wife held a Tier 2 visa in her own right. She wished to switch to being the dependant of her husband under his Tier 1 (PSW) visa. According to (h)(i) she had to leave the country and apply: what Justice Turner referred to as the “adamantine wording…”

This meant that if an Applicant had leave in any other category and wanted to switch to become a dependant, they had to apply from abroad.  Therefore, if you had or have a Tier 1 General, a Tier 1 (PSW), a Tier 2 visa or a Tier 4 visa and you are the main applicant and you wish to switch to become the dependant of another PBS migrant, you would have to go abroad to make your application. The only category to which an applicant could switch was Tier 5.

Section 319C was found to be a disproportionate interference with the claimant’s Article 8 ECHR rights to enjoy family life by requiring her to leave the country to apply to vary the basis of her leave to remain.

 

Principles

The main reason for the successful challenge to 319C in Zhang is the totally inflexible application of the rule or policy, with consequences so disproportionate as to breach an individual’s right to family life.

This can be seen in Chikwamba v SSHD [2008] UKHL 40. If an applicant meets the requirements of the Immigration Rules and does not have an adverse immigration history, then, as Lord Scott put it (at para.6) , “…what on earth is the point of sending her back? Why cannot her application simply be made here?”

To paraphrase Justice Turner, the blanket application of 319C(h)(i) is simply inconsistent with the ratio in Chikwamba.

 

Caveat

Those couples or partners who wish to simultaneously switch from “Main” to Dependant and vice versa in order to extend their leave must take great care. Dependants need to check if there is provision within the Rules for them to switch into their desired category. Also, a dependant’s grant of leave is never more than the main applicant’s.

For example, only Tier 4 dependants can switch into Tier 2: all other dependants must leave the UK and apply from abroad.

Note, in Zhang, both husband and wife had leave as the “Main” applicant or visa holder in their own right.

 

Conclusion

It must be noted that the Court did not “strike” out the Rule, but the Home Secretary has been forced to make several amendments to 319C by Command Paper 628 October 2013; which came into force on 14th November 2013.

The major change is that the requirement an applicant “…applying for leave to remain,

must have, or have last been granted leave:

(i)                 as the Partner of a Relevant Points Based System Migrant…”

has been deleted. You can now apply in this category if you last held leave as a Tier 1 Migrant, a Tier 2 Migrant, a Tier 4 (General) Student or a Tier 5 (Temporary Worker) Migrant.

Those holding Tier 4 visas must pay very close attention to the new requirements due to the quite detailed and intricate requirements. Most people studying on short, lower level courses will not meet the requirements; particularly if they are studying at “privately”  run colleges.

The decision in Zhang means that family members of Tiers 1 and 2 will be able to switch from their current visa into being the “Dependants of a Relevant Points Based System Migrant” from within the UK rather than overseas.

 

One Immigration Feb 2014

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