Skilled Worker Visa Following a Leave to Remain Application Outside the Immigration Rules
Background
A client approached us after finding himself in a difficult immigration position following changes to the Immigration Rules affecting dependants of Graduate visa holders.
The client had been living in the UK as the dependant of his wife, who initially held a Graduate visa. During this period, both the client and his wife began working for the same CQC-registered domiciliary care provider. They had both been employed by the organisation for more than six months and had established themselves as valued members of the workforce.
In the meantime, the client's wife successfully switched into the Skilled Worker route in a care role.
However, changes to the Immigration Rules meant that the client could no longer simply switch from his dependant status into the Skilled Worker route in the same way that may previously have been possible.
This left him facing the prospect of having to leave the UK, despite having an established job, a genuine offer of employment and having built his life in the UK with his wife.
Our Challenge
The principal difficulty was that the client was unable to meet all of the requirements for a Skilled Worker application before the expiry of his existing immigration permission.
In particular, he did not yet have the required evidence to satisfy the English language requirement. His overseas qualifications had also taken longer than anticipated to obtain and were still going through the relevant Ecctis assessment process.
As a result, there was insufficient time for him to make a straightforward Skilled Worker application before the expiry of his dependant permission.
The client was therefore advised by others to consider submitting a fee waiver application. However, we considered that this was not the most appropriate approach in the circumstances.
Instead, we advised the client to make a paid application for leave to remain outside the Immigration Rules, accompanied by detailed representations explaining his circumstances and why discretion should be exercised in his favour.
Importantly, we also made clear to the client that an application outside the Rules did not guarantee that he would ultimately be permitted to switch into the Skilled Worker route.
Our Approach
We carefully considered the client's immigration history, employment circumstances and the impact that the changes to the Immigration Rules had on his position.
We prepared detailed representations explaining that:
the client and his wife had entered the UK together and established their lives here;
the relevant changes to the Immigration Rules had occurred while they were already living in the UK;
both had been working for the same CQC-registered care provider for several months;
the client's wife had successfully switched into the Skilled Worker route;
the client was a genuine and established member of the care provider's workforce;
the employer valued his contribution and was prepared to continue employing him;
the client had a genuine intention to comply with the Immigration Rules and was actively taking steps to meet the outstanding requirements; and
requiring the client to leave the UK would have had a significant impact on both the client and his wife, as well as on their employer and the care services they provided.
We also obtained an offer of employment from the care provider and evidence confirming that the employer was ready to assign a Certificate of Sponsorship as soon as the client was able to satisfy the relevant Skilled Worker requirements.
A key part of our strategy was to demonstrate that the client was not seeking to circumvent the Immigration Rules. He was seeking a practical and lawful route to regularise his position following circumstances that had arisen largely because of changes to the Rules while he was already living and working in the UK.
Once the client obtained the necessary evidence to meet the English language requirement, we were able to vary the pending application and make a Skilled Worker application.
Our Outcome
The client's application was varied from an application for leave to remain outside the Immigration Rules to an application for a Skilled Worker visa.
The Skilled Worker application was submitted using the standard service, rather than the priority service.
The application was approved in less than two weeks.
The client was therefore able to remain in the UK lawfully, continue working for the care provider and remain with his wife, who was already a Skilled Worker.
Our Impact
The outcome allowed the client to continue his established career within the care sector and avoided the significant disruption that would have resulted from having to leave the UK.
It also allowed the employer to retain an experienced member of its workforce at a time when experienced workers are particularly valuable within the domiciliary care sector.
Most importantly, the case demonstrates the importance of considering the full immigration history and circumstances of an individual, rather than simply concluding that an applicant does not meet the requirements of a particular immigration route.
Summary
This case required careful consideration of both the Immigration Rules and the discretion available outside the Rules.
The client did not initially meet all of the requirements for a Skilled Worker application before the expiry of his dependant permission. Rather than making an application that he could not properly support, we considered the wider circumstances and advised him on a strategy that preserved his position while he obtained the evidence required to meet the Skilled Worker requirements.
We also advised against pursuing a fee waiver application where a paid application was appropriate. Although an application outside the Rules is discretionary and there was no guarantee of success, making a paid application supported by detailed representations demonstrated the client's genuine intention to regularise his immigration status and comply with the Rules.
Immigration cases do not always fit neatly into the requirements of a single route. Where the Rules create an unexpected obstacle, careful analysis of the applicant's circumstances, timing and available options can make all the difference.
