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My son (English) has fallen in love with his girlfriend (Australian).

Customer Question

My son (English) has fallen in love with his girlfriend (Australian). She is now pregnant by him, while living in Australia (but he was already there on a year visa). They both want to get married and have the baby.
In an ease of immigration sense, they are not sure whether they should get married in Australia and have the baby in England or other combinations.
Therefore will any of the combinations of birth and marriage make immigration any easier?
Also is there many obstacles they should take into account?
Submitted: 3 years ago.
Category: Law
Expert:  UK_Lawyer replied 3 years ago.
Hi thank you for your question. Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE so I can get credited for my time.

Just to clarify:

Where does your son want to get married?
Is he currently employed in the UK? If employed in Australia what is his salary?
What is his salary?
Does he have any savings?

Kind regards
Customer: replied 3 years ago.

Where he gets married isn't important to him. But he thought that getting married in Australia would help with his immigration process, of him, girlfriend, the child? (as well as having the baby in the UK)


He went to Australia on a work visa (12 months), but was unable to get any work. Therefore he hasn't a job in the UK or Australia.


He still has savings, but not a great amount.

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

Regarding marriage , i would suggest that he gets married in Australia simply because if he was to get married in the UK he would firstly need to apply for a fiancee visa allower his fiancee to marry in the UK and then once she has married in the UK, she would then need to apply for a spouse visa enabling her to remain in the UK.

If they marry in Australia then she would only need to apply for a spouse visa and would not need to apply for a fiancee visa.

The main issue for applicant's wishing to apply for a settlement visa (spouse visa) are the financial requirements that need to be met. Last year the income threshold was introduced which stated that an applicant requires an income of at least £18,600 gross per year to be able to sponsor their spouse to the UK. They must have been working for the same employer for 6 months at least earning the required amount before submitting the application. The income requirement needs to be met by your son and no third party support is allowed.

If he has savings of over £62,500 in his account for a period of 6 months then he would not need to meet the income requirement. From your reply it does not seem that he has sufficient savings either.

In this case it does seem difficult for him to apply for a visa for his fiancee to arrive to the UK as his spouse. Please see the following link for more details:

http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/can-you-apply/financial/

Other evidence he would need to provide are:

Evidence of adequate accommodation
Marriage certificate
Photographs
Evidence of his stay in Australia

The only way around this threshold would be for your son and his partner to reside in a EU country (including Ireland) for 6 months, you son would need to undertake employment during his time in the EU country. Let me explain this further.

As a general rule, family members of British citizens do not qualify for an EEA family permit. Article 3 of the Directive essentially says that an EEA national cannot be considered as exercising freedom of movement in their own State -

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

However, where an EEA national has exercised a treaty right in another Member State as a worker or self-employed and they wish to return to their own State having exercised that right, certain provisions may apply in order for their non-EEA family members to qualify under the EEA Regulations.

A British national and his / her non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (that is, as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national's return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgment is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

• The British citizen must be residing in an EEA Member State as a worker or self-employed person or have been doing so before returning to the UK.

• If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or must have entered into the marriage or civil partnership and have been living together in the relevant EEA country before the British citizen returned to the UK.

Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

I understand this can be a lot to take in so if you want any further clarification please do not hesitate to contact me.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time. If however you feel that the answer does not cover all the points raised in your question please DO NOT rate my answer negatively I will be happy to answer further question until you are satisfied with my answer.

Kind regards
Customer: replied 3 years ago.

You are right, that is a lot to take in. Can you summarise what he can do?


Basically get married in Australia, then return to England and have the baby.


We would have some forms to complete in Australia, but no big problems to fill in.


They return to the UK, where they fill out a spouse visa.


While in the UK, they would need to be working in the UK for no less than £18,600. Or have £62,000 in his own account for at least 6 months.


It doesn't seem to me that he comes up with any of the requirements. Therefore what else can he do?

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

I would suggest that after marriage in Australia you do apply for a British Passport for the child for ease of entry to the UK.

Any visa application for a spouse visa must be submitted from Australia, she is unable to apply for any from inside the UK.

Just to clarify:

1. Your son need to be earning at least £18,600 gross for 6 months or have savings of at least £62,500 for 6 months in his account. Only his finances will be taken in to account.

2. His fiancee must apply for any visa from outside of the UK.

3. If he does not meet the requirements then his best option would to move with his fiancee to a European country for 6 months where he would need to be working for 6 months and then he would be able to return to the UK with his wife, she would get a 6 months eea family permit where she will be able to remain in the UK and then apply for a EEA resident permit as appose to the spouse visa.

Under the EEA rules as stated above there is not financial requirements, because of this your daughter in law will be able to switch from her EEA family permit to an EEA resident permit from inside the UK. You son would need to show upon their return to the UK from the European country that he would working there and now he wishes to reside in the UK with his family.

This as it stands would be his only option as it stands as if his fiancee submits an application for a spouse visa and your son does not meet the financial requirements his application will be refused.

I hope this clarifies the matter.

Kind regards
Customer: replied 3 years ago.

UK Lawyer


So my sons wife would apply to get a UK visa (while in Australia).


Because my son doesn't have the savings or job to allow his wife back to the UK, He has to take her to any any European union state and work and live. Then she can apply to be a Eea in the UK.


Why do they have to goto a another European union (rather than the UK), for 6 months. Why not just the UK?


You said about the childs passport, but it won't be born until March 2014. He won't require one for a long time?


All I can say, is that can you please show me a list of the stages he should, that will be the best option or him?

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

1. Yes your son's wife would need to apply from Australia.

2. The reason he has to take her to a European Country , is because as you are aware EU national are treaty differently to non- EU nationals trying to enter and live in the UK. The same goes for spouse of EU nationals.

In this case your son would be working in an EU country, this would , as explained in my previous question, mean he would be treaty as an EU national and not a British national upon his return to the UK with his wife. The immigration officer will grant her entry on a EEA family permit and she would not be treaty as a spouse of a British Citizen but as a spouse of an EEA citizen. I hope this clarifies the matter.

I was of the opinion that the child was due in the next few months, in this case there is no urgency regarding the child.

Regarding the list of stages, if he doesn't meet the requirement, his only option would be that which I have explained above. As I have stated in my previous answer .

1. He will not meet the requirements of a spouse visa so any application will be refused

2. His option ONLY two options are for him to either move to Australia or reside in an EU country for 6 months as per my previous answer:

As a general rule, family members of British citizens do not qualify for an EEA family permit. Article 3 of the Directive essentially says that an EEA national cannot be considered as exercising freedom of movement in their own State -

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

However, where an EEA national has exercised a treaty right in another Member State as a worker or self-employed and they wish to return to their own State having exercised that right, certain provisions may apply in order for their non-EEA family members to qualify under the EEA Regulations.

A British national and his / her non-EEA national family members can only benefit from free movement rights if they meet the criteria established in the ECJ case of Surinder Singh. The case stated that nationals of a Member State who are exercising an economic Treaty right (that is, as a worker or self-employed person) in another Member State will, on return to their home state, be entitled to bring their non-EEA family members to join them under EC law.

Example: A British national is exercising an economic Treaty right in Germany and living with his non-EEA national spouse and children. On the British national's return to the UK, his non-EEA national family members can apply for an EEA family permit to join him under EC law.

The Surinder Singh judgment is incorporated into the EEA Regulations in Regulation 9. Family members of British nationals who meet the requirements of Regulation 9 are treated as family members of EEA nationals for the purposes of the EEA Regulations.

Applications for EEA family permits must meet the following criteria:

• The British citizen must be residing in an EEA Member State as a worker or self-employed person or have been doing so before returning to the UK.

• If the family member of the British citizen is their spouse or civil partner, they are living together in the EEA country or must have entered into the marriage or civil partnership and have been living together in the relevant EEA country before the British citizen returned to the UK.

Because EEA nationals have an initial three months right of residence in the UK, there is no requirement for the British national to be a qualified person on arrival. Therefore, an EEA family permit can be issued to the non-EEA national family member of a British national even if they are only visiting the UK with the British national before returning to the Member State where they are resident.

If you need any further clarification please see the following link:

http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/apply-outside-uk/

I hope this answers your question, if so kindly rate my answer positively.

Kind regards
Customer: replied 3 years ago.

UK lawyer


If I understand correctly this is there choice:


1) He will marry his girlfriend in Australia.


2) Her apply to the UK for a Visa (while she is still in the Australia).


3) Go to another European country (like Ireland), live and work there for six months, then they will able to make her a British citizen.


If this is the best solution to her becoming a British citizen, it will be very difficult.


Is there any other choice to getting my married son & wife plus his child (being born early next year), into the UK?


 

Expert:  UK_Lawyer replied 3 years ago.
Thanks you.

I will revert back to you at 9am.

Kind regards
Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

This would be your only option, what you need to understand is that the immigration rules have been tighten as of july 2012 and they have made it extremely difficult for british nationals to sponsor their spouse from outside the UK.

The fact is that the rules regarding the income have to be met, if they are not then the application will be refused. Her only other option is that she applied to come to the UK as a student or as a worker , but this would be on her own right and not be attached to her husband.

I can understand that you are displeased with the matter and that the home office have not given any flexibility to the rules, but the fact is that as it stands your son is unable to sponsor his wife to come to the UK. His only option would be to reside in an EU country (not the UK) and then return to the UK after a period of time. This is the only way around the rule.

I am sorry if the advice given is not what you wanted. I will be happy to clarify further should you wish.

Kind regards
Expert:  Nicola-mod replied 3 years ago.
Hello,

Just a quick reminder, there is an unrated answer waiting for you here from the Professional.

If the Expert was helpful, rating their answer as satisfactory transfers your deposit to them – this is how the Expert is compensated.

To rate your answer, you can go to your question page, and click one of the five faces below your Expert's answer. Please be sure you are logged in with your username and password or you will not be able to view or rate your answer.

If you still need help with your question, please feel free to reply to the Expert on this question page. You may ask as many follow-up questions on the same question page as you need until you are satisfied.

Thank you,
Nicola
Customer: replied 3 years ago.

UK lawyer


Hi


Would the longer student/worker visa, give any exception in gaining her a spouse visa? (in the future).

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

Yes only in respect of finance, by that I mean that she will be able to use her income (if she decides to work in the UK ) to that of her partner and their join income will be used to meet the 18,600 income threshold. She will also be able to apply from inside the UK for a spouse visa and would not need to return to Australia.

I hope this clarifies the matter, if so kindly rate my answer positively so I can get credited for my time.

Kind regards
Customer: replied 3 years ago.

UK lawyer


Hi


Therefore his wife (Australian) could come to the UK on a working Visa (1 to 2 years). Then they could both work towards earning the £18,600 required for her to apply for her Spouse Visa.


How long does it take to get the £18,600 to qualify for her to receive a Spouse Visa? (eg, 6 month, 12 months 24 months) (even if £18600 is based on a year).


You mentioned before that with certain Visas they must be applied for, before she leaves Australia, does that include the working Visa?


One other thing, if they marry first in Australia (so they become Mr & Mrs Brown). Will that cause any complications, in such things like Visas, her working in the UK, or even having the baby in the UK?


Thanks


 


 

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

1. Yes that is correct this is possible should they wish to go down this route.

2. They would need to be employed with the company for at least 6 months and be earning the required period for at least that time.

3. She would need to apply for a tier 2 migrant visa prior to leaving Australia.

4. Ideally it would not, but because the immigration officers need to ensure that although she is married she is not using the work visa for settlement in the UK as a spouse of a british national, she would in her application need to explain things a lot me more and her reasoning behind applying for a Tier 2 migrant visa as appose to a Spouse visa.

I believe that I have now clarifies everything regarding this question and would be grateful if you could rate my answer positively so I can get credited for my time.

Kind regards
Customer: replied 3 years ago.

Hi


I think thats about it, other than to clarify my sons options:


If I understand this correctly, his wife comes over here to work (on a work Visa) (1st tier), with the intention of applying for a spouse Visa (in about 6 months (2nd tier). Does she need to apply for both those Visas before she leaves Australia? Will customs allow her to stay under those conditions? Or will she need to apply for the work Visa, then be in the UK for 6 months, then apply for the Spouse Visa?


Please reply to answer these questions or to highlight any other relevant issues?

Expert:  UK_Lawyer replied 3 years ago.
Thank you for your reply.

1. Yes his wife can come to the UK on a tier 2 visa provided she is able to obtain employment in the UK. She will need to apply for the her spouse visa when she has been in the UK, I would suggest that she waits more than 6 months, maybe about a year or more before switching to a spouse visa. You do not want the home office to refuse the spouse visa thinking she tried to get around the rules by applying for a work visa first and then waited to obtain the correct amount of salary.

When she comes to the UK her intention needs to be solely to undertake employment in the UK.

I believe that I have now clarifies everything regarding this question and would be grateful if you could rate my answer positively so I can get credited for my time.

Kind regards

Expert:  UK_Lawyer replied 3 years ago.
I believe that I have now answered all your questions, is there any further assistance required?

Kind regards
Expert:  Nicola-mod replied 3 years ago.
Hello,

Just a quick reminder, there is an unrated answer waiting for you here from the Professional.

If the Expert was helpful, rating their answer as satisfactory transfers your deposit to them – this is how the Expert is compensated.

To rate your answer, you can go to your question page, and click one of the five faces below your Expert's answer. Please be sure you are logged in with your username and password or you will not be able to view or rate your answer.

Thank you,
Nicola

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