Q.
I have been on a work permit since July 2002 but spent one year and four months (from December 2003 to May 2005) on a spouse visa. I have been working full time with the company I got the work permit with and there is no gap in my work permit. After taking one year and four months in total out on a spouse visa, since 2002, I have compleated a 5 year period on a work permit. Can I apply for residence now?(Mr J Singh, 11 January 2009).
A.
Many foreign nationals who wished to work in the UK were required to obtain a work permit before coming to the UK. Foreign nationals who needed a work permit would be denied entry to the UK if they travelled before obtaining one. In addition to a work permit, some foreign citizens require a visa before the come to the UK. These include nationals of countries who always require a visa to come to the UK (visa nationals) and those who held a work permit that was valid for six months or longer.
On 27 November 2008 the old work permit scheme was replaced with Tier 2 of the new points-based immigration system. Workers who originally came to the UK under the work permit scheme will be entitled to apply to transfer to the new Tier 2 category. Tier 2 – General applies to foreign nationals who come to the UK with an offer of a skilled job which could not be filled by a worker already resident in the UK.
Foreign workers who come to the UK under the Tier 2 General category will be given permission to stay in the UK for a period up to a maximum of three years and one month. At the end of the initial period foreign nationals who wish to continue working in the UK must apply to extend their leave to remain in the country. Additional leave to remain may be granted for a further period of up to a maximum of two years. Foreign workers who originally came to the UK under the old work permit scheme may apply to extend their stay under the Tier 2 category pursuant to transitional arrangements put into place after the implementation of the new points-based scheme.
Once workers in the Tier 2 category have been in the UK for a continuous period of five years they may be eligible to apply for permanent residency – also known as indefinite leave to remain or settlement. The worker’s employer will have to confirm in writing that the foreign worker is still required for the job and will have to supply a new certificate of sponsorship in support of the worker’s application for permanent residence.
For any application for permanent residence to succeed, the applicant must have been in the UK with the appropriate visa or other permission throughout the five-year qualifying period. It is essential that all visa requirements you had were satisfied both before and after you were on a spouse visa. If at any time during the five-year period you did not have permission to be in the UK, your application for permanent residence is likely to fail. It may be wise to get specific advice on this point before starting an application.
Free advice on immigration issues may be available from The Citizens Advice Bureau, The Immigration Advisory Service or Community Legal Advice.
