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UK_Lawyer
UK_Lawyer, Solicitor
Category: Law
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Experience:  I am a qualified solicitor and an expert in UK law.
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I wish to raise an Immigration question on behalf of a friend

Resolved Question:

I wish to raise an Immigration question on behalf of a friend David. He is a national of India and came to UK with his family in September 2012 with his wife and 2 children then aged 17 and 8 yrs. They came from Oman where David was pasturing an International Church. He came to UK to join a Christian organisation working with ethnic communities and he received a tier 2 minister of religion visa for 3 years. This is due for renewal on the 23 September 2015.
In the meantime the eldest child who is now 20 years old has spent the last academic year since Sept 2014 studying biochemistry at a University in the USA. This is because she was entitled to funding there from charitable sources which were not available in the UK and otherwise very high fees would need to be paid here as she would be considered an overseas student.
In July/August 2015 in the school holiday period his wife and 2 children plan to go to India to see their elderly relatives from mid July and from the beginning of August David will fly out to join them.
Several questions arise:
1.Does his visa renewal application for himself and his family have to be submitted only within 28 days of the expiry date and not before i.e from 26 August 2015 and therefore is it not possible to apply early say in May 2015 in the hope of having visas/passports returned by mid-July 2015?
2. Is his daughter Sarah studying in the USA (on a 3 year course from Sept 2014) still entitled to apply as a family member as part of her father’s application on the basis of still being a dependant due to her involvement in full-time education? In other words does it not matter that she is now an adult so that she can still be part of her father’s application.
3. Would there be any difficulty re=entering the UK from India on say 26 August 2015 with so little time left on their visa.
4. What is the usual timescale for dealing with these applications and if the application to renew visas is submitted in say mid August, would there be a chance of the application being dealt with by early September to enable Sarah to resume her course starting 8 Sept 15 or would he need to submit and pay for a priority application to ensure this?
5 Would it be possible to split the application so that David and his daughter Sarah apply on a priority basis but his wife and son simply apply in the ordinary way (to avoid extra fees of £300 each). Similarly to expedite matters, could the split application for David and his daughter be submitted as a premiums service (same day process but a £400 fee) and the other application for wife and son dealt with ordinarily.
The advantage of the premium service it seems is that the biometric process is dealt with also on the same day whereas the priority basis would involve some further delay waiting for the biometric process after the 10 day processing of the visa.
6. Is it possible to apply online in advance e.g. in June/July 2015 for an appointment for the premium service so as to get an appointment in the window 27 August – 28 August or 1-4 September i.e. is it likely all such appointments could be taken if only applying on 27 August. Or alternatively could such an application for an early appointment be made online during their stay in India so as to get an appointment between the above dates and could his UK debit card be used from a foreign location for this purpose
Submitted: 2 years ago.
Category: Law
Expert:  UK_Lawyer replied 2 years ago.
Hi, thank you for your question, I will be happy to assist you.
1. Yes, he is unable to apply for a visa more than 28 days before the date of expiry. He would not be able to to apply in May 2015.
2. Yes, it would matter for the purposes of immigration, she would not longer be deemed as a child as she is over the age of 18 therefore she will be required to apply as an adult apply to study/work in the UK.
3. No there should be no issues, they just need to inform the immigration officer that they will be applying for an extension of their current visas. They may wish to take a letter from the church to confirm that the church is happy to continue sponsoring them.
4. The time scale can be anything from 6 - 16 weeks for an application, if in this case time is of the essence then I would recommend that they use the same day service allowing them to get a decision o the same day.
5. No, this would not be possible, the dependents would need to apply at the same time as the main applicant, this is because if the main applicant's application is refused using the same day service then they ordinary application would not be valid. Furthermore the dependents would only get the visa if the main applicant gets his visa, and the home office would not accept an application for just the dependents as their applications are linked and it would be in their best interest to apply together.
6. No, there is nothing preventing them from apply for the same-day application prior to the 28 days, but they must book the actual appointment within the 28 day limit.
I hope this answers your question if however you feel that the answer does not cover all the points raised in your question please do not hesitate to ask further questions until you are satisfied with my answer.
Kind regards
Customer: replied 2 years ago.

With regard to Q2- -the daughter who is now 20 yrs old is studying in the USA (not the UK) and obviously wishes to come home at the end of the academic year at least to the UK to unite with her parents. Are you saying that on the facts presented she does not qualify as a "dependant" (even though she is financially dependant on her parents and is in receipt of full time education) and that if she has no application in her own right to stay in the UK now that she is an adult, she could only return to the UK as a visitor during vacation times?

With regard to Q5, it is not suggested that the wife and younger child would make separate applications from the father and daughter but the query is whether the wife and younger child could be allowed to proceed at a slower pace to avoid the substantial fees of the premium service for all 4 of them. It sounds as if you are saying they all have to be dealt with at the same time as the father's application is the lead application, is that so?

With regard to Q6, it sounds from what you say that you cannot book an appointment for the premium service until you are within the 28 days leading up to the expiry of the visa and so there would be no point in applying for the service earlier. Is there in fact any point in applying for this service earlier than the 28 days if it does not give you any priority in booking the appointment ? If there is any advantage, can you clarify what this would be?

Many thanks if you could deal with these points.

Expert:  UK_Lawyer replied 2 years ago.
Thank you for your reply.
1. Yes that is correct, the fact that she is over the age of 18 means that she is no longer seen as a child but an adult and thus regardless of the financial dependency she would not been seen as a dependent for the purposes of applying for a tier 2 visa. Furthermore, as she is studying in the USA she should not be applying for a UK visa just to facilitate her entry to the UK, strictly speaking she would not be allowed a UK visa even if she was under the age of 18 as she is not studying in the UK and is not residing here.
2. Yes, because the visas will be issued on the basis of the father's application being accepted, and yes the main applicant would need to apply at the same time as the dependents because all the applications are linked as one.
3. Yes, that is correct you can book the appointment for a premium service now, but the date you book the appointment for must be not more than 28 days before the expiry of their visas. The premium service only assists with obtaining the visas the same day not for applying more than 28 days before the visa expires. The advantage would be if the applicant applies for the visa they do not have to wait 3 months or so for a decision, the decision is given on the same day and the visa is issued a few days later. This is the only benefit of the same-day premium service.
I hope this clarifies the matter.
Kind regards
Expert:  UK_Lawyer replied 2 years ago.
I hope this answers your question, if so please provide a rating so I can get credited for my time.
Kind regards
Customer: replied 2 years ago.

Many thanks for the above replies.

On the point about the applicant's daughter possibly being considered a "dependant " even though now an adult, if she is now in receipt of full time education and still dependant in that sense, is there not a point that as she was under 18 yrs when the first tier 2 application was made in September 2012, that she can still apply again as a dependant ?

As my friend is hearing different things, I would be grateful if you could clarify this further.

Expert:  UK_Lawyer replied 2 years ago.
Thank you for your reply.
Yes, you are correct, the guidance states that:
The applicant must be under the age of 18 on the date of application unless they are applying for leave to remain (which is your case she is) and was last granted leave as:
o the child of a PBS migrant
The issue is that she has not been residing in the UK for the duration of her visa, she has a UK visa but is actually residing in US and undertaking her studies there. This may have an affect on her visa application. The home office requires applicants who have been granted a visa to reside in the UK to actually be physically present, if she has been outside of the UK for more than 6 months a year , this would actually break her residency, this is something that could lead to a refusal.
I hope this clarifies the matter.
Kind regards
Customer: replied 2 years ago.

Sorry I am not sure what you mean by "PBS migrant". Can you clarify please.

So if she was able to reduce her study time in the USA to less than 26 weeks (even by a day or so) in a year, would this be enough to preserve her residency status in the UK?

Would one breach of this if she has been out for more than 26 weeks in the last year 2014/15 or may be by the time her course finishes for this year, be enough to lead to a refusal ?

Would there not be some basis in human rights law about continuation of family life that might be an argument to use? It seems very hard that she cannot see her family (through no fault of her own other than the high level of foreign student fees in the UK) other than by paying substantial visitor entrance fees each time she wants to do this.

I would appreciate your further comments.

Expert:  UK_Lawyer replied 2 years ago.
Thank you for your reply.
PBS migrant is points based system migrant.
1. I think that the home office would need to consider this and look at the matter as a whole, the fact that she is not studying in the US can complicate the matter. Usually applicants applying for an extension are only residing in the UK and are not working or studying outside the UK.
2. Yes it can , the home office are very strict on applicants obtaining a visa and then leaving the UK to pursue other avenues ie work or study and then returning to the UK to apply for an extension.
3. I understand your point but the human rights element would only come into consideration if the main applicant had indefinite leave to remain in the UK and was resident here. If the main applicant is only on a temporary visa then the human rights element would not be engaged. In regards ***** ***** point of fees, the home office would not entertain such an argument and just stated that if she is unable to afford fees then she should not have a UK visa and just reside in the US.
I understand that these points are harsh , but the home office have taken a very strict approach now for issuing visas and the criteria has been tightened further.
Kind regards
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