Switching visa within the UK - confusion

Happy New Year to everyone!

My friend and his wife are in a little bit of visa trouble/confusion.  I'm hoping someone here might have some answers or be able to help point them in the right direction.

My friend (UK citizen) and his wife (US citizen) have been married since 2011.  She came here under the HSMP visa in 2009 and it expires next month.

They don't make enough income (he is a post grad student) jointly to meet the income requirements of the partner visa but now that she has been accepted for post-grad study, was advised to get a student visa.

The University have helped her through the process but have now backtracked (a new HR person I understand with little knowledge of the process to date).

They are really worried.  This has come out of the blue as a bit of a shock.  So what I wanted to ask was:

Can she apply within the UK to change her visa status to a student?

Does she have to leave the UK, return to the USA and apply there?

Any help or pointers in the right direction would be immensely helpful.  I hate seeing them being put in this position, principally, as a result of these financial constraints surrounding settlement visas!

Thanks

They are really worried.  This has come out of the blue as a bit of a shock.

Not really sure what they worried about... all they have to do is provide his wife with her Tier 4 Certificate of Sponsorship (CAS)... the rest of the visa application process is up to your friend and his wife to complete. 

So what I wanted to ask was:

Can she apply within the UK to change her visa status to a student?

Does she have to leave the UK, return to the USA and apply there?

The UKBA website says (http://www.ukba.homeoffice.gov.uk/visas-immigration/studying/adult-students/applying-inside-uk/):

Can you switch into the Tier 4 (General) student category?

You can switch into Tier 4 (General) without leaving the UK if you have, or were last given, permission to stay in one of the following categories:

-    Tier 1 (Post-study work)
-    Tier 2 (General)
-    Tier 2 (Intra company transfer)
-    Tier 2 (Minister of religion)
-    Tier 4 (Child)
-    prospective student
-    student (under the rules in place before 31 March 2009)
-    student re-sitting an examination
-    student nurse
-    students writing up a thesis
-    student union sabbatical officer
-    work permit holder
-    postgraduate doctor or dentist
-    Science and Engineering Graduates Scheme
-    International Graduates Scheme
-    Fresh Talent: Working in Scotland Scheme

If you are currently in the UK in any other immigration category, you must leave the UK and apply for a Tier 4 (General) visa from your country of residence.

As his wife is not on any of those visas (the HSMP was replaced with the Tier 1 General visa, but neither of these are on the list), it looks like she will need to return to the US to apply for her student visa.

She will just need to get the UK university to issue her with a CAS, if they haven't already, and then she will need to return to the US to apply for the visa.

For her visa documents, as the US is considered a 'low risk' country, she shouldn't have to actually provide financial documents, however, if they ask for them, she will need to show that she has 1 year of tuition fees in full, plus either £7,200 (living outside London) or £9,000 (living in Inner London) in living costs available to her (either in her bank account or by way of an approved US loan or scholarship) - if the money is hers, it will need to be in her bank account for 28 days before she applies for the visa (and it cannot fall below the tuition amount and living costs amount at any time in those 28 days).

As she is applying for a student visa, she can either pay $150 for the 48-hour priority processing service, or she can book a Premium in-person appointment at the NYC consulate for $100, which should be same-day processing... so hopefully she won't have to spend much time at all in the US.

Thanks!

I just emailed him.  Apparently she is on Tier 1.  So, from reading through your reply, she would be able to apply from within?

The University are changing their stories about the CAS form.  It was ready for pick up last week, but now the new HR person is refusing to handing it over.  The only response they've been given was "I'm not issuing it".  No other detail.

That said, I don't know the ins and outs so it would be unfair of me to make assertions.

I appreciate this a lot.  Thank you.

I just emailed him.  Apparently she is on Tier 1.  So, from reading through your reply, she would be able to apply from within?

No, because according to the reply, Tier 1 is not on that list unless it is post-study work, which she is not on.  So she would need to return to the US to apply.

She absolutely needs the CAS before she can apply for the visa.  So whatever the issue is with the university, they need to get to the bottom of it and get it resolved.

Thanks!

I just emailed him.  Apparently she is on Tier 1.  So, from reading through your reply, she would be able to apply from within?

What type of Tier 1 visa is she on?

If it's a Tier 1 (General) visa (new name for HSMP), then no, she cannot apply from within, because that visa type is not on the list.

If it's a Tier 1 Post Study Work visa (i.e. she studied for a degree in the UK and then switched into a Tier 1 Post Study Work visa after she graduated), then she can apply from within.

The University are changing their stories about the CAS form.  It was ready for pick up last week, but now the new HR person is refusing to handing it over.  The only response they've been given was "I'm not issuing it".  No other detail.

But they have to issue the CAS in order for her to be eligible for the visa. If they won't give it to her, then she won't be able to apply for the visa at all  .

She's going to have to talk to the university and find out what's going on. Until she has the CAS, unfortunately there's nothing we can do to help.

One question though:

Does she not qualify to extend her current Tier 1 visa for another 2 years (assuming she's on the Tier 1 General visa)? She would need to meet the points requirements for an extension, but it would mean she could qualify for ILR (permanent residence) after 5 years in the UK (so, 2014 if she arrived in 2009)... whereas on a student visa, she won't be able to qualify for ILR at all, and if she was able to apply for a partner visa in the future, the count to ILR will reset and she will have to spend another 5 years on partner visas before she can qualify for ILR. See here for details: http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier1/general/eligibility/

I've passed this information on to them.  Thanks so much.

It looks like it is a Tier 1 (Highly Skilled Migrant) which, as you say, isn't on the list.

However, I'm not sure if they had considered whether they were eligible to extend her current Tier 1 visa.  I'll check that with them also.

However, I'm not sure if they had considered whether they were eligible to extend her current Tier 1 visa.  I'll check that with them also.

An extension, if she can qualify for one, would be the next logical step, since in order to qualify for ILR she needs to spend 5 years on a work visa (and it's probably easier to qualify for the Tier 1 extension than a Tier 2 work visa) - in fact, the Tier 1 General visa no longer exists for new applicants... they will only allow extensions to it now (and people on certain visas can switch into it).

She would have to meet the age, qualifications, previous salary etc. requirements though, so she would need to check if she is eligible to apply for an extension.