Switching Rules
‘Switching’ is where an applicant with one type of leave or immigration status under the Immigration Rules applies for leave to remain, i.e. inside the UK, in another immigration category.  The UK Border Agency (UKBA) is usually clear about any new immigration rules and policies but confusion can sometimes arise in respect of the effects of new rules or policies on the current and future circumstances of migrants residing in the UK. This confusion can lead to a migrant making an incorrect application for further leave to remain in the UK in a new category which is likely to result in the application being refused.  It is therefore important to understand the switching rules.

It is important to note, as a general rule, dependents cannot switch inside the UK into being a main applicant under the Points-Based System.  One notable exception is the partner of a Tier 4 migrant who can switch into being a main Tier 2 (General) applicant.

Those applicants who wish to switch into the status of a Points-Based System dependant can apply in-country as a dependant, providing they are not an illegal entrant, or were last granted as a visitor, temporary admission or temporary release.

1. Switching into TIER 1

a) Tier 1 (Entrepreneur)

Nationals of non–EEA countries may apply to switch into Tier 1 (Entrepreneur) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:

  • a Tier 1 (General) Migrant
  • a Tier 1 (Investor) Migrant
  • a Tier 1 (Graduate Entrepreneur) Migrant
  • a Tier 2 Migrant
  • a Work Permit Holder
  • a Prospective Entrepreneur

Please note that no one else is permitted to switch into Tier 1 (Entrepreneur) whilst remaining in the UK and will have to seek entry clearance from the country of origin.

b) Tier 1 (Investor)

Nationals of non–EEA countries may apply to switch into Tier 1 (Investor) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:

  • a Tier 1 (General) Migrant
  • a Tier 1 (Entrepreneur) Migrant
  • a Tier 1 (Post-Study Work) Migrant
  • a Tier 2 Migrant
  • a Tier 4 Migrant
  • a Work Permit Holder
Please note that no one else is permitted to switch to Tier 1 (Investor) while remaining in the UK and will have to seek entry clearance from the country of origin.

c) Tier 1 (Exceptional Talent)

Nationals of non–EEA countries may apply to switch into Tier 1 (Exceptional Talent) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:

  • a Tier 2 (General) Migrant
  • a Tier 5 (Temporary Worker) Migrant, sponsored in the Government Authorised Exchange sub-category in an exchange scheme for sponsored researchers.

Please note that no one else is permitted to switch into Tier 1 (Exceptional Talent) whilst remaining in the UK and will have to seek entry clearance from the country of origin.

d) Tier 1 (Graduate Entrepreneur)

Nationals of non-EEA countries may apply to switch into the Tier 1 (Graduate Entrepreneur) category without leaving the UK only if they have existing leave to remain as a Tier 4 migrant or leave as a student and satisfy the specified criteria.

2. Switching into Tier 2

a) Tier 2 (General), Tier 2 (Sportsperson) and Tier (Minister of Religion)

Nationals of non–EEA countries may apply to switch into Tier 2 (General) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:
  • a Tier 1 Migrant
  • a Tier 2 (Sportsperson)
  • a Tier 2 (Minister of Religion)
  • a Tier 5 (Temporary Worker) in the Creative and Sporting sub-category, for a job as a professional footballer
  • a Member of Operational Ground Staff of an overseas owned Airline
  • a Minister of Religion, Missionary or Member of a Religious Order
  • a Qualifying Work Permit Holder
  • a Representative of an Overseas Newspaper, News Agency or Broadcasting organization
  • a Representative of an Overseas Business
  • a Tier 4 student
  • Dependant partner of a Tier 4 migrant
  • a Tier 2 (Intra-Company Transfer) Migrant where they have previously had leave as a Tier 2 (Intra-Company Transfer) Migrant under the Rules in place before 6 April 2010, or in the Established Staff sub-category under the Rules in place before 6 April 2011

A Tier 2 (Intra-Company Transfer) Migrant must not be applying to continue working for the same sponsor.

If you are switching from a Tier 4 category, you must have successfully completed a course which lasted at least one academic year during your most recent period of Tier 4 leave

Please note that no one else is permitted to switch to Tier 2 (General) while remaining in the UK and has to seek entry clearance from the country of origin.

b) Tier 2 (Intra Company Transfer – Long Term Staff)

Nationals of non–EEA countries may apply to switch into Tier 2 (Intra Company Transfer - Long Term Staff) without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:

  1. a Tier 2 (Intra-Company Transfer) Migrant in the Long Term Staff sub-category, or
  2. a Tier 2 (Intra-Company Transfer) Migrant in the established Staff sub-category under the Rules in place before 6 April 2011, or
  3. a Tier 2 (Intra-Company Transfer) Migrant granted under the Rules in place before 6 April 2010, or
  4. a Qualifying Work Permit Holder, provided that the work permit was granted because the applicant was the subject of an Intra-Company Transfer, or
  5. as a representative of an overseas Business.
No one else is permitted to switch to Tier 2 (Intra Company Transfer - Long Term Staff)  while remaining in the UK and will have to seek entry clearance from the country of origin.

Switching into the other Tier 2 (Intra-Company Transfer) sub-categories, e.g. Short Term Staff, is not permitted.

3. Switching Into Tier 5

a) Tier 5 (Youth Mobility)

No one is permitted to switch to Tier 5 (Youth Mobility) while remaining in the UK. All the prospective applicants can only make such application at the British Diplomatic post in the country of their origin or where they have been legally residing for more than 6 months if the British Diplomatic post concerned is allowed to accept such applications.

b) Tier 5 (Creative & Sporting) Temporary Workers

Only a sports or entertainer visitor is entitled to apply to switch into the Tier 5 (Temporary worker) Creative and Sporting subcategory, provided they have a valid certificate of sponsorship issued to them before entering the UK. No one else is permitted to switch to this category while remaining in the UK.

c) Tier 5 (Religious Workers) Temporary Workers

No one is permitted to switch to Tier 5 (Religious Workers) while remaining in the UK. All the prospective applicants can only make such application at the British Diplomatic post in the country of their origin.

d) Tier 5 (Charity Workers) Temporary Workers

No one is permitted to switch to Tier 5 (Charity workers) while remaining in the UK. All the prospective applicants can only make such application at the British Diplomatic post in the country of their origin

e) Tier 5 (Government Authorised Exchange) Temporary Workers

A Qualifying Work Permit Holder is allowed to switch into the Tier 5 (Government Authorised Exchange) Temporary Worker sub-category, provided the applicant was previously issued with a work permit for the purpose of employment as a sponsored researcher and has been granted a COS to continue this employment.

The Immigration Rules have recently changed to allow selective switching for students in Tier 4 who have completed degrees in the UK to undertake corporate internships which directly relate to their degrees. These internships will take place in the Tier 5 Government Authorised Exchange sub-category. This change is being made in response to representations from businesses that such a change will make it easier to recruit graduates with specialist skills for internships with a view to offering them a permanent position in the future. As with any work experience scheme in this subcategory, roles must be supernumerary and stay is restricted to 12 months. Switching into Tier 2 at the end of the internship is not permitted.

f) Tier 5 (International Agreements) Temporary Workers

A Qualifying Work Permit Holder is allowed to switch into the Tier 5 (International Agreements) Temporary Worker sub-category, provided his/her certificate of sponsorship shows that he/she is being sponsored in the Government Authorised Exchange sub-category and he/she will be continuing in employment with the same organisation.

An Overseas Government Employee is allowed to switch into the Tier 5 (International Agreements) Temporary Worker sub-category as long as they will be working for the same government organisation.

Please note that all other switching into the Tier 5 (Temporary worker) subcategories is not permitted.

4. Switching Into Tier 4 Student

Nationals of non–EEA countries may apply to switch into a student visa without leaving the UK provided they satisfy the specified criteria and have existing leave to remain as:

  • a Tier 4 (Child) Student
  • a Tier 1 (Post-Study Work) Migrant
  • a Tier 2 Migrant
  • a Work Permit Holder.

Please note that no one else is permitted to switch to the Tier 4 student category while remaining in the UK - that includes the dependants of the above mentioned.

5. Switching into Spouse Visa

a) Spouse or civil partner of a person present and settled in the UK

Almost any person (above 18 years of age) who has initially been given entry clearance or leave to remain in any capacity for more than 6 months is able to switch into being a spouse of a person present and settled in the UK (provided they are already married).  It is important to note the leave of more than 6 months has to be leave given under the Immigration Rules to enable an applicant to switch.  (English language student visitors are granted leave of more than 6 months outside the Rules, on a concessionary basis, and so cannot switch into a spouse visa.)  The only exception to this rule is a person having limited leave as a fiancee or proposed civil partner, who can switch into a spouse or civil partner visa after getting married in the UK.  Visitors (although they might have a multiple entry visa valid for more than 6 months) are given leave to enter/remain in the UK for only 6 months and they cannot therefore switch into a spouse or civil partner visa whilst remaining in the UK.

b) Spouse of a person having limited leave to remain in the UK (Tier 2, Tier 4, Tier 5 or some other leave allowing dependants to join the migrant)

Spouses of persons having limited leave to remain in some other category are not allowed to switch into becoming dependent on their spouses having limited leave to remain in the UK (except where the Points Based Migrant has, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory on the basis of having met the requirement at paragraph 245ZQ(b)(ii)).  They are required to seek entry clearance from outside the UK in order to enter and join their spouses.  Although the marriage can take place in the UK, if the applicant is not able to switch status in the UK, he/she has to seek entry clearance from the British Diplomatic post in the country of origin.

c) Spouse (Family member) of an EEA national exercising his/her Treaty Rights in the UK

As the switching between immigration categories is governed by the Immigration Rules, there are no switching rules regarding family members of EEA nationals exercising their Treaty Rights in the UK: any spouse can apply for a right of residence under European law. There is no requirement for the non-EEA national to have any sort of leave to remain or entry clearance to make such an application. People having visitors visas or even having no visa at all, can make an application to the UK Border Agency to obtain a family member Residence Card on the basis of being married to an EEA national who is exercising Treaty Rights in the UK.

However, a non-EEA national spouse would need to meet the requirements of the relevant Immigration Rule if they were to apply for some sort of leave under the Immigration Rules.

6. Switching into Unmarried Partner Visa

a) Unmarried Partner of a person present and settled in the UK

Any person (above 18 years of age) who has resided for at least 2 years with a person present and settled in the UK in a relationship akin to marriage may apply for leave to remain in the UK as an unmarried partner. It is however necessary for that person to have valid leave to remain in the UK of more than six months. There are also other relevant requirements in this type of application that must be fulfilled and again it is advisable to seek professional advice when making this sort of application.

b) Unmarried Partners of a person having limited leave to remain in the UK (Tier 1, Tier 2, Tier 5 or some other leave allowing Unmarried Partners to join the migrant)

The switching rules are the same for unmarried partners as they are for spouses except they must also meet the following requirements:

(i) any previous marriage or civil partnership or similar relationship by the applicant or the Relevant Points Based System Migrant with another person must have permanently broken down,

(ii) the applicant and the Relevant Points Based System Migrant must not be so closely related that they would be prohibited from marrying each other in the UK, and

(iii) the applicant and the Relevant Points Based System Migrant must have been living together in a relationship similar to marriage or civil partnership for a period of at least 2 years.

c) Unmarried Partners of an EEA national exercising his/her Treaty Rights in the UK

Any person who has resided together (for a minimum of 2 years) with an EEA national exercising his/her Treaty Rights in the UK, in a relationship akin to marriage may apply as an extended family member for a Residence Card as an unmarried partner.  They need to be able to show that they are in a ‘durable relationship’ and two years’ cohabitation is normally expected, although all cases should be considered on their own merits.  The applicant does not need to have valid leave to remain. It is however, strongly advised to seek professional help in making such an application.

What services can we offer?

Switching (transferring) to another immigration category may be very straightforward but could also be very complex depending on the individual`s circumstances and the sponsor`s immigration status. It is therefore strongly advised to seek professional advice and services when seeking to change or vary one’s status inside the UK.  We can fully assist with any application. 

  • We advise on the procedure of making applications on behalf of our clients to switch to the desired immigration category.
  • We can assess the circumstances and advise on the likelihood of the application being approved.
  • We can advise applicants on the supporting documents and evidence required for switching and settlement applications.
  • We can prepare applications and represent clients throughout the application process.
  • We can lodge an appeal in cases of refusal of an application and represent our clients at the Immigration and Asylum Chamber.

Whatever the case, we are here to help, assist, advise and represent our clients in relation to any aspect of the immigration matters.

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