Heartless Home Office strikes again!

The COA was granted only one week before her visitor visa expired (HO fault). They couldn't get married within that timeframe but they got married a few weeks later. 4 days after the wedding, the over 21 law came into force.

Permission to marry not permission to apply for FLR(M) whilst on a visitor visa. 

You don't need permission to apply for the visa, you just apply to change status. It would be pointless getting a COA if no-one was ever allowed to change theiir status afterwards!

I have always understood that it is not possible to change status from visitor to spouse while in the UK.  If it were allowed, why wouldn't everyone do it?  It'd be cheaper than a fiance visa since CoA's are free now.  And if it isn't allowed, then this couple shouldn't be permitted to do it.

Not to mention the fact that if it is allowed, then we have all been mis-advising people for quite a long time, telling them that they must return to the US to apply for a fiance visa.  I hope that doesn't turn out to be the case.   
 

Fiance visas are for people who already intend to marry before they come to the UK. That wasn't the case here.

So do you mean to say that I could have come here on a visitor visa, married my then boyfriend and applied for a spousal all without leaving the country??  Boy, that sure would have saved some serious money! 

So people who are organised and plan ahead have to pay £585 more than people who just decide to get married while on visitor visas?  Sorry, Britwife, but I'm not buying it.  First, how would you prove that you didn't intend to get married before you arrived on a visitor visa?  Second, where is this in the rules, and why haven't we heard anything about it before?  It would have been very useful information for many people, myself included. 

This particular couple applied for a CoA one month before her visa expired and a major rule change came into effect, and they expected to have it approved quickly enough for them to give two weeks' notice to the registrar?  By the notoriously slow Home Office?  If they were in such a hurry, why didn't they fly back to Canada, get married there, and apply for the spouse visa with an expediter?  That would have all but guaranteed that their application was processed before the rule change. 

Unless different rules apply to Canadians than to Americans?

yes, their COA was not processed until only a week before her visa expired which was at least partially the HO's fault for losing the pictures.  That sucks and they have the right to be a annoyed.  But it happened, and as the COA is a completely separate process from permission to remain in the country, once they realised they wouldn't have enough time to complete the process before her visa expired she should have not used the COA and instead gone back home to get married there.  A huge inconvenience, but she would have eventually needed to go back home to get the visa anyway even if she had gotten married in the UK.

It's not possible to switch from visitor to spouse in the UK any longer, whether you have a COA or not.  The COA has nothing to do with permission to remain in the country- it is permission to marry only and they make this very clear when you apply for one.

Variation of leave to enter or remain in the United Kingdom

31. Under Section 3(3) of the 1971 Act a limited leave to enter or remain in the United Kingdom may be varied by extending or restricting its duration, by adding, varying or revoking conditions or by removing the time limit (where upon any condition attached to the leave ceases to apply). When leave to enter or remain is varied an entry is to be made in the applicant's passport or travel document (and his registration certificate where appropriate) or the decision may be made known in writing in some other appropriate way.

31A. Where a person has arrived in the United Kingdom with leave to enter or remain in the United Kingdom which is in force but was given to him before his arrival, he may apply, on arrival at the port of entry in the United Kingdom, for variation of that leave. An Immigration Officer acting on behalf of the Secretary of State may vary the leave at the port of entry but is not obliged to consider an application for variation made at the port of entry. If an Immigration Officer acting on behalf of the Secretary of State has declined to consider an application for variation of leave at a port of entry but the leave has not been cancelled under paragraph 2A(8 of Schedule 2 to the Immigration Act 1971, the person seeking variation should apply to the Home office under paragraph 32.

32. DELETED

33. DELETED

33A. Where a person having left the common travel area, has leave to enter or remain in the United Kingdom which remains in force under article 13 of the Immigration (Leave to Enter and Remain) Order 2000., his leave may be varied (including any condition to which it is subject in such form and manner as permitted for the giving of leave to enter. However, the Secretary of State is not obliged to consider an application for variation of leave to enter or remain from a person outside the United Kingdom.

There are the rules re variation.  I don't see anything here that would prevent this scenario.

So do you mean to say that I could have come here on a visitor visa, married my then boyfriend and applied for a spousal all without leaving the country??  Boy, that sure would have saved some serious money!  

Not if you already planned to marry before you came here.

The way I'm reading it, this couple were not even in a very serious relationship before she came to visit. When she came they decided they wanted to be together and to get married, hence applying for the COA.

As for how it was proved - if she was allowed in as a visitor on a visa waiver, then it was already accepted that her intent was to return to Canada and not to settle here after marrying someone she was visiting. But we don't really have all the facts about how it came about so who knows.

http://www.digitaljournal.com/article/276413

Quote from the Home Office:

    Rochelle Roberts was refused permission to remain as a spouse because she came as a visitor and remained here illegally after her visa expired. The immigration rules are clear that those people who arrive as visitors and those that remain here illegally cannot remain in the United Kingdom as a spouse.

So if the reason for refusing her was that her visa had expired, does this mean that if she had been within her initial 6 months, she could have changed status? Why not just say we don't allow people to come as visitors to change status to spouse?

It's not possible to switch from visitor to spouse in the UK any longer, whether you have a COA or not.  T

Well that is what I thought too but I can't find that anywhere in the rules or legislation. Where does that rule come from?

Well that is what I thought too but I can't find that anywhere in the rules or legislation. Where does that rule come from?

According to Transpondia (garry's site) the rule was changed in 2003 in response to CM 5387 published in 2002. I'm looking for the change as I type.

Well that is what I thought too but I can't find that anywhere in the rules or legislation. Where does that rule come from?

It's in the immigration rules.

284. The requirements for an extension of stay as the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i) the applicant has limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules, other than where as a result of that leave he would not have been in the United Kingdom beyond 6 months from the date on which he was admitted to the United Kingdom on this occasion in accordance with these Rules, unless the leave in question is limited leave to enter as a fiance or proposed civil partner or unless the leave in question was granted to the applicant as the spouse, civil partner, unmarried or same-sex partner of a Tier 1 Migrant and that spouse or partner is the same person in relation to whom the applicant is applying for an extension of stay under this rule; and (emphasis mine)

Visitors do not get leave to enter the UK for more than 6 months at a time, and a visitors visa is obviously not a fiance/proposed civil partner visa or a Tier 1 dependent visa, so therefore it seems fairly logical that an applicant for FLR(M) with a visitor visa could not meet this portion of the rules.  

Official information on Certificates of Approval

3.13 The certificate is valid for three months from the date it is issued. You must
give your notice to marry or register your civil partnership within this time. The
certificate allows you to give notice to marry or register your civil partnership and
does not mean you will be guaranteed leave as a spouse or civil partner.

Emphasis added.  So clearly, the CoA hasn't got anything to do with FLR(M).  It is only permission to marry.   


From UKBA's page on applying for FLR(M)

You should use application form FLR(M) if you already have temporary permission to stay in the United Kingdom (limited leave to remain) as the husband, wife, civil partner or unmarried/same-sex partner of a permanent resident.

Not Limited Leave to Remain as a visitor.  If it were possible to switch from visitor to FLR(M) then you'd think they'd mention that.  Emphasis added again. 


And according to Transpondia

I entered the UK as a working holiday maker and then switched to visitor.
If I get married, can I switch to FLR in-country?
--Yes, because your original entry clearance was for a period of two years. You would still need to obtain a certificate of approval, however.

Emphasis mine, yet again. 

Waiting on WebyJ to find the official word. 

I don't know why the woman quoted in the article only mentions that she can't switch because she overstayed.  Perhaps she was taken out of context.  At any rate, your contention that a switch is allowable because the couple in question didn't intend to marry when she entered is frankly absurd.  Many, many people enter as visitors and then decide they want to get married after spending a few months with their SOs, are you really saying that they should be allowed to marry in the UK on a CoA then switch to FLR(M) at considerably less expense and with considerably less trouble than people who plan ahead, read the guidance, and obtain fiance visas?  So people who are in long-term relationships and who have planned their weddings and their lives together for years should be penalised to the tune of £585 just because they are on top of things, and think before they act?         

The 'no switching' rule came in on HC 538:

People who are in the UK as visitors or students for less than 6 months cannot switch to married status (they have to leave and apply for a marriage visa to return). This does not apply to unmarried partners [Para 14 of the new rules specifically inserts this requirement into para 284 (spouses) of the existing rules, but NOT into para 295D (unmarried partners)].

Quote from the the November 2008 IDI on spouses(http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter8/section1/section1.pdf?view=Binary):

3.1. Key points
As stated above all of the relevant provisions must be referred to when considering applications for leave to remain in this category, but in general caseworkers need to be satisfied that:
-
the applicant has limited leave to remain in the United Kingdom in accordance with the Immigration Rules, other than limited leave to enter for 6 months or less (unless the leave in question is limited leave to enter as a fiancé(e), in which case 6 months is acceptable) and has contracted a valid marriage, which is recognised in this country, to a person who is present and settled here;
-
the marriage is subsisting and that the couple intend living together permanently as husband and wife.

The "no switching" into marriage provision prevents those given limited leave to enter the United Kingdom for 6 months or less, e.g. visitors and short term students, from switching into the marriage category. It does not apply to those given leave to enter the United Kingdom for 6 months as a fiancé(e). Neither does it apply to those who have been granted an extension of stay in the United Kingdom of six months or less at the end of their initial period of leave.

On 1 October 2004, Command Paper 6339 introduced a requirement preventing switching into the marriage category by a person who only has leave which was granted outside the Immigration Rules. Grants of discretionary leave are outside the Immigration Rules. Therefore those persons granted discretionary leave who apply on or after 1 October 2004 on the basis of a marriage, or the establishment of a partnership with someone present and settled here, cannot seek to switch into leave to remain on the basis of that relationship. Provided the relationship continues to exist they can seek to remain in the UK until they have completed 6 years’ discretionary leave (in 2 periods of 3 years’ stay) and then apply for settlement. Or, at a time of their choosing, they can leave the United Kingdom and apply for entry clearance from abroad.

Where an application is made out-of-time or is submitted by an illegal entrant, refer to local instructions for advice.

Just because I don't want to mess up my above post I will comment here:

The couple were refused becase you cannot switch in country from a visitor to a spouse. The rule states those that are in country as a visitor cannot switch. As well as  those who are on (for lack of a better word) expired entry (aka overstayer) cannot switch.. She just happend to be BOTH.

Welshman marrying a White Canadian woman, clearly not a forced marriage, but they are applying the '21 year old rule' in an inflexible blanket manner anyway.

Not heartless.  Just dumb and 'politically correct'.  But this is supposed to be 'fair'.  Is it really 'fair' to punish everyone because there happens to be cultures out there that have forced marriages?  Either apply it to Asians and other people where forced marriage is prolific or don't apply it at all.

Thanks Springhaze, I couldn't see that for looking last night and thought maybe it had been changed - again - I really am not all that up to date with the current rules, never claimed to be.  Thanks to the others who went to the trouble of posting links and quotes as well.

At any rate, your contention that a switch is allowable because the couple in question didn't intend to marry when she entered is frankly absurd.  Many, many people enter as visitors and then decide they want to get married after spending a few months with their SOs, are you really saying that they should be allowed to marry in the UK on a CoA then switch to FLR(M) at considerably less expense and with considerably less trouble than people who plan ahead, read the guidance, and obtain fiance visas?  So people who are in long-term relationships and who have planned their weddings and their lives together for years should be penalised to the tune of £585 just because they are on top of things, and think before they act?         

Well, it really wasn't a contention but now you menton it,  I think they should scrap the fiance visa and allow people to apply for the spouse visa in country as well. They don't stop marriage visa scams (which is why they were introduced I thought), they just make it more expensive and more convoluted for everyone involved. So if that's an absurd idea then so be it. I'm not in the "I had to do it so why shouldn't everyone else?" school of thought.