URGENT ADVICE NEEDED PLEASE! ASKED TO LEAVE THE COUNTRY!

[MartinKing]

Dear Expert Members,

I hope you will be able to help me in my enquiry as I am really in critical situation at the moment and I have been asked to leave the country although I am married to an EU citizen and have spent most of the last 8 years here in the UK.

My story briefly is as follows:

1999-2000: I came to the UK for an English course around Sep/1999 stayed until March/2000.

2000-2002: I came back again in August/2000 with a new visa (old one was over in March) for a Master's Degree. Graduated July/2002 with an MA from a reputable university (managed to extend my visa to write my dissertation, that is why it took one and half year for the masters).

2002-2003: My visa was still valid until August 2002. Before the end of August that year, I enrolled in another Masters. However, due to medical reasons (required undergoing surgery); I had to leave the country and drop out of the course around April/May 2003.

2003-2007: Before I left UK I was interviewed for a PhD programme which I was accepted in and got back to the country with a new visa (from abroad) around August/2003 (while the old visa was still valid until Sep/2003). My PhD programme went well and during the last six months I interviewed at several universities and managed to get a job offer to work as a lecturer from a reputable university. The university kindly applied for a work permit on my behalf and I was granted one for 5 years. I was asked to apply for an FLR (IED). I booked an appointment in Croydon and went for it. However my application was not even looked at there!

The Home office caseworker was extremely rude and he really treated me badly:

1) He said I could not switch unless I finish my current PhD programme. But I told him that the employer is happy to hire me without one and I will need sometime to finish mine (I'm at the last stage of writing-up!) plus I already have a UK degree and a continuous residency since then.

2) He said I should have finished my second master's and I explained to him that I had to drop it for medical reasons.

3) He said, this is the most shocking bit, that in order for my residency to be considered continuous I am not allowed to leave the country EVEN FOR ONE DAY. He kicked a fuss about me having a new visa from abroad rather than renewing it from inside the country.

4) He did not give any advice or any solution on what to do.

I went back to my potential employer and told them the story. They said the only route now is to leave the country; they will apply for a brand new work permit the day after I leave and they will send it to me abroad. Then I have to apply at a British embassy to get my entry clearance.

I really cannot believe what is happening here, all the above seem quite confusing to me to say the least but the most bizarre bits are:

1) Why did the caseworker refuse to admit my case even that I booked an appointment? Why did he consider my residency to be interrupted?

2) Why do I have to leave the country in order for the employer to apply for a work permit? I have never had a stamp on my passport when I leave UK and I do not think they will look at every single foreign non-uk stamp on the passport or do they?

2) Why do we have to apply for a brand new work permit if I have one? Why can't I go with the one that I have now and leave the country and apply at the British embassy in the country that I reside in?

I'm really puzzled and confused. I'm about to risk it all and leave the country but waiting time will kill me plus I need to get access to library resources as I'm writing up my PhD!. Please advice me: Is my case on the right side of the law? In other words, shall I hire a lawyer to represent me at the home office to sort out the matter? Or am I on the wrong side and I have to leave the country and wait for my work permit?

Note: I mentioned that I'm married to an EU citizen, but that doesn't mean it's easy to be an EU dependent as my passport and my spouse passport need to be sent the home office for more than 6 months and there is no-way of having an appointment!

I'm really sorry for the long post and I really appreciate my urgent help and I'm planning to leave in 72 hours.

Thanks for your effort to read and the post and help me
Best Regards

M.K.

[yankeegirl]

What is your spouse's nationality and how long has your spouse been living in the UK? How long have you been married and is your spouse working or studying here?

[MartinKing]

Hi Yankeegirl

My wife is German and we got married in the US as it proved quite hard to have the civil marriage here in the UK. She has been living here for almost five years and she is in the process of applying for her settlement. We got married Feb this year (2007) but we have been living together since Jan 2005. She worked for four years but has been a full time student since Sep 2006.

Thanks a lot , I hope you and other senior members here can give me more advice.

Many thanks

M.K.

[SYH]

Well actually I do see the caseworker's point about the work permit not being continous and needing to leave the country to get a new work permit. His points are correct, however if you have an EU partner, you have another basis to be in the UK independent of the workvisas. I presume you are American. Anyway this other stuff about needing to research here isn't really strong enough reason to stay. Do the research in the usa, you can't tell me the libraries are no good there.

[Docterror]

Using your own numbering to answer:-

1) Your case could have been deemed by the PEO to be a bit too complicated to be done in person. Such cases are refused even if you have an appointment and could have different result if you were to apply by post.

2) That makes absolutely no sense at all. Why did he say that you have to leave the country at all? When does your current visa expire? I do not think that particular advice that he has given is binding upon you in any way at all.

3) Work permits are issued in a bit of wierd fashion. If an in-country application is made and then changed into one where an Entry Clearance has to issued by a British Embassy abroad, then the issue has to be brought into the attention of the Home Office so that a Work Permit can be issued. In country applications get 'letter of permission' and not a work permit. See points 81-82 of these notes for further clarifications.

Now, on a personal note, I cannot figure out why you are adamant about leaving before trying out all the alternatives. During the break that you have had, did you maintain your ties to the UK? Has your wife already applied for the Permanent Residence yet?

[MartinKing]

Hi Guru SYH,

Thanks for your reply. But why do you think the caseworker is right? how long is someone allowed to stay away during each year and in total in order to count his/her residency as "continuous"? and why do we have to get a new work permit? I heard that it takes much longer to process it when you are outside the country, is that true too?

The other point is "Timing". The contract starts 1/Jan/2008. How long do you think it will take for the whole process to get completed? Issuing a new work permit-sending it abroad-applying at British embassy-getting an entry clearance?

I'm still asking other gurus and senior members here to give me there opinions please.

Many thanks for you all.

M.K.

[SYH]

Hi Guru SYH,

Thanks for your reply. But why do you think the caseworker is right? how long is someone allowed to stay away during each year and in total in order to count his/her residency as "continuous"? and why do we have to get a new work permit? I heard that it takes much longer to process it when you are outside the country, is that true too?

The other point is "Timing". The contract starts 1/Jan/2008. How long do you think it will take for the whole process to get completed? Issuing a new work permit-sending it abroad-applying at British embassy-getting an entry clearance?

I'm still asking other gurus and senior members here to give me there opinions please.

Many thanks for you all.

M.K.

Why does your employer think you have to leave the country? No point in getting your knickers in a bind with timing, It might be the easiest route to get to your goal.

And by the way DocTerror's opinion is not too shabby either.
Don't be so quick to accept what the caseworker have to say, they are not infalliable nor do they always know every single permutation of the rules.

[PaperPusher]

they will apply for a brand new work permit the day after I leave and they will send it to me abroad

Your employer can apply when you are in the UK and then you can take the permit with you. They just have to be clear that they need a work permit for you and not an immigration employment document (IED).

This if you are going to go down the WP route.

You have to leave the UK because you cannot switch, this is because you have not completed your PhD. Although I cannot see it in the immigration rules that you have to complete a UK degree in the most recent period of leave. You do not need to get entry clearance as a work permit holder if you are a US national and the WP is for six months or less. You can just fly in with the WP. You would have to satisfy them that you intend to leave at the end of your approved employment though.

They didn't see you because if they had they would have taken your premium fee and a given you a letter telling you that your application had been refused. They only want to see people by appointment whose applications are very likely to be approved.

[MartinKing]

Hi Docteror,
Thanks for your reply

1) You are right, that's what one of my friends told me actually That the PEO officer didn't want to do his job or he had a bad day. I would have had a better chance if I applied by post but I thought it would be more efficient in person!

2) It's actually the employer rather than the PEO officer who is currently asking me to leave the country ASAP. The PEO guy didn't tell anything about any other alternatives. My current student visa expires end of April/2008

3) Thanks for clarifying the difference between in-country and outside-country work permit application but I still can't see any logic in that rule.

I really don't want to leave but in the same time I don't want to lose the job. Do you think I can stand a better chance if I hire a solicitor to represent me at the home office? Do you think it can be done in a week or two?

As for the break, it wasn't really a break unless I have to consider the period between late may and mid august in 2003 as one (less than three months). During these months I left all my stuff in the UK and I had my PhD acceptance before leaving anyway.

My wife has not applied yet, she is getting all the paperwork ready.

Many thanks Docterror,

Hope other gurus and seniors can contribute as well.
M.K.

[MartinKing]

Hi Paperpusher,

Thanks for your reply.

It's good news to know that the employer can apply for the work permit while I'm in the UK. I wonder why they insist on my leaving then!

As for your second point, you are absolutely right and that was exactly my point of argument with the PEO officer, that I should have "A UK degree" but it's not mentioned anywhere in the immigration rules that it has to be associated with the current visa permit!

The work permit is for five years (60 months).

I do appreciate that they didn't want to charge me £550, but at least they could have told me in a better way or at least give me a solution or an alternative.

Thanks again Paperpusher.

Hope other gurus and seniors members can give me more advice.

M.K.

[Docterror]

Do you think I can stand a better chance if I hire a solicitor to represent me at the home office? Do you think it can be done in a week or two?

There is a chance that a solicitor might be of help in representing you in the Home Office(HO), but I doubt that you will find one competent enough. But if applied by post, it usually takes around a month for the application to be decided and 1-2 weeks is a bit of a sqeeze. If you have had ties to the UK, while you were abroad, I do not think that it effects the continuity of your residence even for the 10 year rule, although I will let others comment on that as you did get a new EC.

If you were to leave and apply for an EC from an embassy abroad, the processing times vary from different embassies. Just like others, basing on the place of the marriage that you are an American, this should be fairly a quick task.

You have to leave the UK because you cannot switch, this is because you have not completed your PhD.

Are you quite sure about that? I was under the impression that a PhD course, being granted a student visa, makes it eligible for an in-country switch. If a student stops the PhD, it is considered to be a breach of the vsia conditions if they were to stay here and are asked to find a new method of staying in the country. So, why should a WP application switch from a student visa fail if applied in-country?

[MartinKing]

Hi Docterror,

Thanks for your reply.

One month is quite long to wait, plus the results may not be positive.

It's true that I did get a new EC in August 2003, however my previous one was still valid until September 2003. so in a way, can't we consider that period to be continuous?

How would you define ties in that regard?

I'm sorry for the confusion that I might have caused. I might be talking like a Yankee but no I'm not American, even though I did get married in there

Thanks again and I'm still inviting other gurus and senior members to post on my case.

Best Regards
M.K.

[vinny]

My current student visa expires end of April/2008

See also OEM Section B, Chapter 10 - Persons liable to administrative removal under section 10 (The Zhou Judgement).

Why don't you apply for a residence card (see also documents) as a spouse of a qualified EEA national at the same time as your spouse's permanent residence application?

[PaperPusher]

Hello Doctorerror

From the rules about LTR for work permit employment, my bold

(i) entered the United Kingdom or was given leave to remain as a student in accordance with paragraphs 57 to 62 of these Rules; and

(ii) has obtained a degree qualification on a recognised degree course at either a United Kingdom publicly funded further or higher education institution or a bona fide United Kingdom private education institution which maintains satisfactory records of enrolment and attendance; and

(iii) holds a valid Home Office immigration employment document for employment; and

People on courses below degree level can't switch. From this it also appears that you have to obtained the UK degree level qualification to switch. The IDIs aren't up to date. It isn't clear to me if the obtaining had to be done in the most recent leave granted, and if courses above degree level count. Just being on a PhD level course is not enough IMO.

The application may not fail by post, but they would not do it at the PEO, so it isn't straight forward to the caseworker at the front counters at least.

MartinKing, where are you from?

My wife is German and we got married in the US

I just assumed.....

[SYH]

Hi Docterror,

Thanks for your reply.

One month is quite long to wait, plus the results may not be positive.

It's true that I did get a new EC in August 2003, however my previous one was still valid until September 2003. so in a way, can't we consider that period to be continuous?

How would you define ties in that regard?

I'm sorry for the confusion that I might have caused. I might be talking like a Yankee but no I'm not American, even though I did get married in there

Thanks again and I'm still inviting other gurus and senior members to post on my case.

Best Regards
M.K.

the point is that you applied for EC so your belief was that you had left the country and you needed permission to reenter. This implies that your intent was you had left the country and your leave stopped being continous

EC is quite formal so isn't like it was a split second formality decision at the border which can be ignored.

[Docterror]

Paperpusher, I can see your point but I do hope that a postal application would make make it. I think it can be argued either way. Many thanks for the input.

vinny, having stayed for so long on the UK route, it would not be a great move to switch to the EU route as it will reset the ILR clock which hardly ahve 2 more years to run. It should however be used as the last resort.

SYH, the OP already did have the PhD acceptance letter before having left the country, had a valid visa till Sept 2003 when the new one was issued in Aug 2003, had mainatained a place of residence in this country and the break was due to medical reasons. I personally would not consider that such a break would affect the continuity of residence.

[SYH]

Paperpusher, I can see your point but I do hope that a postal application would make make it. I think it can be argued either way. Many thanks for the input.

vinny, having stayed for so long on the UK route, it would not be a great move to switch to the EU route as it will reset the ILR clock which hardly ahve 2 more years to run. It should however be used as the last resort.

SYH, the OP already did have the PhD acceptance letter before having left the country, had a valid visa till Sept 2003 when the new one was issued in Aug 2003, had mainatained a place of residence in this country and the break was due to medical reasons. I personally would not consider that such a break would affect the continuity of residence.

Yeah I understand your point too but then why apply for EC if the residency was not broken. that's the thing I think the caseworker was tripped up on. Whether it was in fact broken is one thing, but procedural he acted like it was broken.

[MartinKing]

My current student visa expires end of April/2008

See also OEM Section B, Chapter 10 - Persons liable to administrative removal under section 10 (The Zhou Judgement).

Why don't you apply for a residence card (see also documents) as a spouse of a qualified EEA national at the same time as your spouse's permanent residence application?

Hi Vinney
Thanks for your posting.
I checked the Zhou Judgment. I came to believe that if all things fail I could work part time (20 hours per work), continue my PhD, and try to finish it before six months pass from the date of the work permit approval. That should be 9/April/2008. However, I am not sure if the university will still be interested to hire me on a part-time basis for the first three months.

I wanted to apply for a residence card as a spouse of an EU national but as a dependent I can not submit my application in person and it takes more than 6 to 7 months to get processed which is quite a long time to be stripped from my travel document.

Note: I have been told today that leaving the country when the employer applies for an outside country application is necessary as the British embassy abroad might conduct an interview with the applicant WHILE the work is being processed and even BEFORE the approval is being granted. Is that true?

Thanks to all of you. I did not think that my case would be that complex. I am still inviting gurus and senior members to give me their views.

All the best
M.K.

[MartinKing]

Hello Doctorerror

From the rules about LTR for work permit employment, my bold

(i) entered the United Kingdom or was given leave to remain as a student in accordance with paragraphs 57 to 62 of these Rules; and

(ii) has obtained a degree qualification on a recognised degree course at either a United Kingdom publicly funded further or higher education institution or a bona fide United Kingdom private education institution which maintains satisfactory records of enrolment and attendance; and

(iii) holds a valid Home Office immigration employment document for employment; and

People on courses below degree level can't switch. From this it also appears that you have to obtained the UK degree level qualification to switch. The IDIs aren't up to date. It isn't clear to me if the obtaining had to be done in the most recent leave granted, and if courses above degree level count. Just being on a PhD level course is not enough IMO.

The application may not fail by post, but they would not do it at the PEO, so it isn't straight forward to the caseworker at the front counters at least.

Hi Paperpusher,

Thanks for your post

I thought that I did fulfil the three conditions that you mentioned. I think my point of argument with the PEO officer was that it is not mentioned anywhere that the obtained UK degree had to be done in the most recent leave granted.

I have been told today to try my luck again in person (book another appointment) before giving up and leaving the country. What do you think?

Thanks to all of you again. Please give me your views.
All the best
M.K.

[MartinKing]

Hi SYH,
Thanks for your input.

I really think it is unfair that the home office is counting on the intentions of leaving and not on the duration of leave. I really do not know how people could make their intentions clear when they leave the country. I am sorry if I might sound a bit sarcastic here but if revealing intention is necessary then all people in the UK who fall into such category should fill in a form to state their intentions for the future before they leave the country even for a short visit!

I could have got back to the UK to renew my visa from inside the country, but I thought they might be a bit fussy about me not completing the previous course.

Thanks again and please provide me with your views.

All the best
M.K.

[MartinKing]

Paperpusher, I can see your point but I do hope that a postal application would make make it. I think it can be argued either way. Many thanks for the input.

vinny, having stayed for so long on the UK route, it would not be a great move to switch to the EU route as it will reset the ILR clock which hardly ahve 2 more years to run. It should however be used as the last resort.

SYH, the OP already did have the PhD acceptance letter before having left the country, had a valid visa till Sept 2003 when the new one was issued in Aug 2003, had mainatained a place of residence in this country and the break was due to medical reasons. I personally would not consider that such a break would affect the continuity of residence.

Hi Doctererror

Thanks for your posting.
Do you think I should risk it and send it by post? Thanks for supporting my argument about the continuity but how do think I will be able to convince the home office people?

I am grateful for all your help and advice. Please send me more.
Thanks
M.K

[MartinKing]

Dear all,

I'm still struggling to take a decision, the earliest appointment with a business immigration solicitor is not until next week and I really can't wait until then.

Please let me know if you have sufficient knowledge regarding the matter or if you can give me a contact of a proper business immigration solicitor.

Many Thanks!

All the best
M.K.

[paulp]

Have a look at the adviser finder on the OISC website. There are also a few immigration consultants and barristers on this board.

[MartinKing]

Hi Paulp,

Thanks for your advice.

I have consulted few lawyers and they advised me to apply from abroad as it can be quite a risky option to stay and try to switch while I'm in the country. It might be harder to convince the PEO officer plus if I send the application by mail, the time issue might be crucial too. As I have to start working by the first of January next year. One of lawyers told me that the "UK Degree Requirement" should be obtained during the current granted visa, so I may not have a strong case here.

Therefore, it looks like applying from abroad is the safest available option but the most inconvenient. However, I do have few enquiries:

I have been getting mixed messages:

1) Whether the applicant needs to leave the country before the work permit is being applied to?

2) Or whether the he/she can leave on the day before the application is made and get back the day after and then wait until it gets proccesd and go abroad to apply from a british embassy?

3) Or if he doesn't need to leave at all untill the work permit is fully granted?

Which one of these three options do you think will apply? I would really appriciate your advice. please let me know what do you think?

Many thanks again for your help and effort. please inform me of your views.

All the best

M.K.

[VictoriaS]

You could have had an appointment with me this week, but never mind!

I am afraid that the Home Office decision seemed right to me, and you were lucky that he refused to accept the application, rather than accepting then refusing and you losing the money.

If you wish to switch from a student visa to a work permit then you must have a valid student visa and you must have completed the course for which that visa was granted. As you have not finished the course, you cannot switch.

So, you have a choice -

1) Get the employers to make an 'out of country' work permit application (you can be physically in the UK when they do this) and then, when ti is approved, you go home for entry clearance

2) From within the UK, you apply to remain as the spouse of an EEA national.

Victoria