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Frantz I
Frantz I, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 403
Experience:  Over 5 years dealing with EEA Law, Nationality, Immigration and Asylum Law.
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I am an Australian passport holder, married to a UK citizen.

Resolved Question:

I am an Australian passport holder, married to a UK citizen. My husband has just had to have a leg amputated. My current visa expires 5th June.
What type of visa could I apply for in order to remain in the UK to be his main carer.
Please advise.
Catherine ****
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Frantz I replied 1 year ago.
Hello What type of visa do you have at the moment.
Customer: replied 1 year ago.
Hi Frantz
The chop in my passport states "Leave to enter for six months" (hand written). Also hand written is RCH 38407.
I arrived at Heathrow on 6 Decembeer 22015.
Expert:  Frantz I replied 1 year ago.
Unfortunately you would not be able to extend your current visa beyond 6 months or switch into a family-based visa in the UK. If you wish to join your husband permanently in the UK under a family-based visa, you will have to leave the UK and apply from Australia. You will also need to meet the financial requirement amongst other requirements.
Customer: replied 1 year ago.
Thank you for your reply Frantz. Unfortunately your suggestion that I would need to travel to Australia in order to apply for a UK visa is simply not possible. My husband now relies on me for total personal care, food, and all daily necessities. He cannot be left alone.The following is a little background information about myself, my husband and our current situation.We have been married for 46 years, marriage date 18 December 1970 in Bucks, UK. My husband was born and educated in the UK and has always been a British citizen. I was born and educated in Australia, the UK and Hong Kong. I first came to the UK in 1966 for a two year working holiday. I then became resident in the UK from December 1969 to November 1974. We moved to work and live in Hong Kong in November 1974 and returned to the UK on holiday each year to visit family.
In August 2015 my husband was hospitalized and eventually had to have his leg amputated in October 2015. He left hospital on 8 March 2016 and was at home for 10 days before being readmitted for 3 weeks. He again left hospital on 9 April and is now at home where I am assisting him with activities of daily living during the day and night. He is in need of my assistance for all his basic needs. I have a letter from the Senior Occupational Therapist, Occupational Therapy Department, Charing Cross Hospital stating that I am needed as his primary carer.We have jointly owned our own home in the UK since February 2008, pay council taxes and have both joint and single UK bank accounts. My husband receives two pensions and we have ample funds in the UK to support our living requirements.Since I need to be my husband’s primary carer would it be possible to apply for either a Derivative Residence Card, a FLR(M) or a FLR-O visa? Such an application would be made on severe and urgent compassionate grounds.With this further information to hand, I would appreciate your advice.Catherine
Expert:  Frantz I replied 1 year ago.
I was merely stating the conditions of the standard visitors visa under UK immigration rules. I am not able to give advice on JA as it is not allowed. In very exceptional cases the Home Office may apply discretion but it must be truly exceptional. Your husband has family members in the UK which the Home Office are likely to say can look after him. Your husband arrived in the UK and was hospitalised in August 2015 and had his treatment in October 2015. But you only arrived as a visitor in December 2015. Who looked after him during the period you weren't in the UK? When you applied to enter the UK as a visitor, you would have been made aware of the conditions of a standard visitor's visa and signed a declaration not to breach them. When you initially applied to enter the UK as a tourist what was the reason given in your application? Were you unaware your husband was going to need to be cared for at home after he received his treatment? These are questions that you would need to think about before deciding on whether you wish to make an exceptional application under FLR(O).
Customer: replied 1 year ago.
Dear Frantz
Thank you for raising a number of very relevant issues. My responses are below.
1. Family members. My husband is 80 years old and he has just one brother in the UK. The brother is 83 years old and is in no position to provide care.2. Dates of arrival in the UK. I actually first travelled to the UK with my husband on 5 August 2015 but did not mention it in my previous communication because it was not relevant to my initial inquiry.3. Medical progression. After returning to the UK my husband visited his GP and to our surprise was admitted immediately to Watford General Hospital. He remained there until 17 September, when he was then transferred to St Mary’s Hospital in Paddington. There they first amputated his two toes. Complications set in and his leg had to be amputated on 28 October. Since the recovery period was to be extensive, and knowing that he was being cared for in hospital and would be for a considerable time, I took the opportunity to make a quick trip to Hong Kong to deal with some personal affairs. I was away from 23 November to 6 December 2015.4. Visa. On 6 December 2015 I simply completed and signed an arrival card.5. Care. We had no idea initially that my husband’s medical condition would develop and eventually require such drastic action. Therefore, we were unaware that there would be a need for ongoing care at home until the leg amputation on 28 October 2015.You mention the possibility of making an exceptional application under FLR(O). Is this the only type of visa that I could be eligible for? In studying the various visa categories on The Home Office website, and given the above background, would it be appropriate to apply for a Derivative Residence Card or a FLR(M) application would be appropriate?
Your advice would be very much appreciated.
Catherine
Expert:  Frantz I replied 1 year ago.
Dear *****The derivative residence rights are for those EU nationals exercising treaty rights under EU law. This does not apply to your husband as he is not exercising treaty rights. The FLR(M) are for those applying for an extension of stay in the UK as the partner of a person present and settled in the UK. Your current visa status is as a standard visitor and not as a partner of a person present and settled in the UK. To make an application as a partner of a person present and settled in the UK you must be outside the UK. You cannot switch in the UK from a standard visitors category to a partner of a person present and settled in the the UK. I am unable to answer any further questions until the first has been rated I am afraid.
Frantz I and other Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.
Dear Frantz
Thank you for your explanations about the FLR(M) and Derivative Residence Card requirements. Does this mean that the only application I could make to extend my stay should be made under FLR(O)?
Thank you, Catherine
Expert:  Frantz I replied 1 year ago.
Yes that is what the guideline says.
Customer: replied 1 year ago.
Have been going through the FLR(O) visa application and have queries.
Can I apply for the FLR(O) visa online? Seems to be only for those applying from overseas.
And/Or can I use the Premium Service? Site says not available to retired person with independent means.
Both methods do not appear to apply to my situation.
Thanks
Expert:  Frantz I replied 1 year ago.
That is incorrect. Take a look at the guideline and form here https://www.gov.uk/government/publications/application-to-extend-stay-in-the-uk-form-flrohttps://www.gov.uk/government/uploads/system/uploads/attachment_data/file/508783/FLR_O__guidance_notes_03-16.pdf
Customer: replied 1 year ago.
Frantz
I would obviously like to use the Premium Service but I have copied below what I read in the Guidelines. I have marked three categories with ** which seem to apply to me. Am I really excluded from using the service? Thanks Catherine7. When you can't use the service
You can’t use the premium service if you’re applying under Tier 1 (Investor).
You can’t use the premium or super premium service if you’re:
• a retired person of independent means **
• an elderly dependant
• someone whose case is complex because of personal circumstances **
• someone whose case isn’t covered by the Immigration Rules
• sponsored by a member of staff at a premium service centre
• applying for a Home Office travel document
• applying for naturalisation or registration as a UK national
• applying as a victim of domestic violence
• applying for an European Economic Area (EEA) residence card or permanent residence card
• applying for an EEA registration certificate as an unmarried partner
• applying for an EEA registration certificate and you’re not a qualified person
• applying for proof of a right of abode
You also can’t use the premium or super premium service if you’re applying for discretionary leave to remain **I really am confused. C
Expert:  Frantz I replied 1 year ago.
You cannot use the premium service for your case. You will need to use the postal service I am afraid.

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