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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7481
Experience:  BA (Hons), PgDip, Practising Solicitor
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My partner is a born and raised New Zealander who holds an

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My partner is a born and raised New Zealander who holds an Australian passport. I am a British Citizen and Passport Holder. We have a 7 month old son and are tenants in common on a property purchased in September 2010 with a mortgage. We lived together from April 2008 until March 2009 while he was on a working holiday visa. He returned to NZ in March 2009 to apply for his Tier 2 Visa as the company he had been working for sponsored him. His first application was refused and second successful and he could not come back to the UK until September 2009. I fell pregnant in December 2009 and our son was born in September 2010. My partner lost his job on Monday 4th April and with it his tier 2 visa which means he should leave the country on 2nd May. He has been offered another job already but this company does not have a Tier 2 licence (nor do they want to get one). His industry does not fall on the shortage occupation list. Because he has only been back in the UK for 18 months we have been advised that we do not qualify for the unmarried spouse visa (2 years living together) as the 6 months he was back in NZ means there was a break in our co-habitation. Is there any special category we can apply for to get him a visa which will entitle him to work also?

Hi,

 

Thanks for your question.


If there was a break in cohabitation then the this will break the time required for the purposes of an unmarried partner's visa.

 

There is no alternative visa which he can apply for under the standard immigration categories. Discretionary applications outside the immigration rules are permitted though my advice would be to instruct a local solicitor to prepare one based on his Article 8 Right to a Family and Private Life.

 

This would argue that he should not be compelled to return to NZ on the basis that his, your child's and your right to a family and private life would be prejudiced if he were. You would argue that he is required here as an intergral part of your family.

 

Coupled with the fact that he would in 6 months be eligible for an unmarried partner's visa this may get some traction witth the UKBA to the extent that you would have a reasonable chance of success if properly argued and evidenced.

 

You should submit this application as close to the date of his current visa expiry as possible. The UKBA aims to reach a decision on such applications within 6-8 weeks, but frequently overun in the case of discretionary applications. He will have leave to remain until determination is reached.


if it is rejected then you can appeal., It takes around 2-3 months for a hearing date to be set so by that time you will be nearing the requisite cohabitation period for eligibillty of unmarried partner's visa so I would hope that the UKBA take a pragmatic view and either allow your application before appeal or, if they don't, you can submit an application for an unmarried partner's visa before appeal that should be sucessful.

 

Even if you are rejected at appeal he will, I should think, only be a month short of the further 6 months he requires. He could overstay to reach the required time and then return to NZ breifly with his unmarried partner's visa application in hand ready to submit straightaway. Under rule 320 of the Immigration Rules the UKBA are not permitted to refuse an application on the basis of an overstay alone, so provided there are no other defects in his application and it is properly evidence he should obtain an unmarried partner's visa.

 

If this is useful please kindly click accept so that I may be rewarded for my time. You wll be free to ask follow up questions.


Kind regards,


Tom

 

EDIT:- ps. I have to go offline for an hour or so now, if you require expansion or an answer to follow up questions I should be able to respond upon return.

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Customer: replied 5 years ago.

Hi Tom

 

Thank you for your answer, it is very helpful. Could you tell me if there is a form for discretionary applications that we could go through before instructing a solicitor? We'd like to keep costs to a minimum if possible. Also, would he be able to work while the application is being considered?

 

Kind regards

 

Lucinda

Hi Lucinda,

 

Thanks for your accept and very kind bonus.

There is no standard form for discretionary applications, if there was the UKBA would get flooded with spurious applications (unlike yours).

 

I don't believe he would be able to work whilst the application is considered I'm afraid because of the cessastion of the terms of his current visa. If he did he would prejudice his chances of sucess further.

 

Good luck.

Kind regards,


Tom

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