get back to UK via employing one's own spouse?

Old Mar 13th 2014, 1:51 pm
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Default get back to UK via employing one's own spouse?

Hello
Was wondering if anyone could help out with some advice.
My husband and I are considering opening our own business in The UK, but have been really stuck as to how to get back to The UK: not enough savings for the 60k route, difficulties in meeting the financial requirements for the spousal visa route, SS changes - all these things have slowed us down a bit.
However, we suddenly wondered whether or not it would be possible and legal if I were to open the business in The UK and hire my husband as an employee and get him a work visa. Would that work? Then after that, once we were settled we could apply for the spousal visa further along the line.
I welcome any thoughts.
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Old Mar 13th 2014, 3:39 pm
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Default Re: get back to UK via employing one's own spouse?

I am not sure about work visas in the UK but I have had plenty of work visas here in the US (I'm a brit) and the general idea is that they are only issued to a 'foreigner' when no one locally can be found to do the job. The companies that I worked for hired lawyers and essentially fitted my experience and quals to meet the requirements but I am somewhat specialized in that I have a masters in robotics which made tailoring a job to me easy. I suspect uk work visas are designed in a similar way. So even if its possible you may have to get creative with job titles and descriptions?
Good luck
Cheers
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Old Mar 13th 2014, 4:41 pm
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Default Re: get back to UK via employing one's own spouse?

Work visas in the UK are issued by sponsoring companies (vetted by the Gov) and given to people who have specialist skills and where no other person in the UK can do the job.

Your one man company is not going to get sponsoring status so this is a no go route for you.
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Old Mar 13th 2014, 6:17 pm
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Default Re: get back to UK via employing one's own spouse?

Unless that company were supplying services to other countries within the EU at which point you can get an EEA family permit (although there's a higher than usual risk that the Home Office will not give you one and force you to take them to court, but that risk is there in any visa application nowadays)
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Old Mar 13th 2014, 9:40 pm
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Default Re: get back to UK via employing one's own spouse?

Originally Posted by englishguygoinghome
Unless that company were supplying services to other countries within the EU at which point you can get an EEA family permit (although there's a higher than usual risk that the Home Office will not give you one and force you to take them to court, but that risk is there in any visa application nowadays)
So how does this route work?

The husband in question in this posting is Japanese; the wife obviously British.

They are proposing setting up a company in the UK. How would he get an EEU Family permit to enter the UK and run the company? They currently live in Japan.
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Old Mar 14th 2014, 2:08 am
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Default Re: get back to UK via employing one's own spouse?

It's a Tier 2 General visa restricted COS that he would need.

It would have to be a graduate level job at the appropiate salary (both defined by the UK government).

You would have to carry out a resident market test to show that nobody else in the UK or EU can do that job.

The numbers of this visa are restricted unless you are going to pay him 153k+ per year. Only 10,000 of these visa were issued for the whole of the non-EU world last year and the same for the year before.

Plus you would need to be granted permission to sponsor someone.

Many have asked if they can do this on other forums, as they too thought they might have worked out a way to get around the spouse visa requirements.

Last edited by formula; Mar 14th 2014 at 2:28 am.
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Old Mar 14th 2014, 6:54 am
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Default Re: get back to UK via employing one's own spouse?

Originally Posted by SanDiegogirl
So how does this route work?

The husband in question in this posting is Japanese; the wife obviously British.

They are proposing setting up a company in the UK. How would he get an EEU Family permit to enter the UK and run the company? They currently live in Japan.
As I (a layman) understand Carpenter the process would be approximately:
  1. UKC (wife) creates UK Ltd company
  2. UK Ltd company signs a deal to provide services to someone in another EU country
  3. (optional) Wife (UKC) has an argument that Husband (non-EU) is needed to facilitate this deal (either by working in the company or looking after kids etc)
From point 2 onwards wife is attempting to exercise EU rights under freedom to provide services and can apply for an EEA-Family permit for husband citing the Carpenter ruling. If there is a specific justification that the husband will be instrumental to exercising those rights, then so much the better. If this were to go to (EU) court then there may well not even be a need for a signed deal, just a clear marketing and business strategy showing that service would be provided to other EU countries IF the husband and wife were in the UK.
Of course, there is no specific info or guidance on this route from the UKVI as it is far less common than Singh. Unfortunately being such a test case may be useful for the wider community in the future but only helps the individual if they have no alternative options, are able to wait for a few years before moving, or are able/willing to get to and live in the UK pending such a decision.
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Old Mar 14th 2014, 10:12 am
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Default Re: get back to UK via employing one's own spouse?

So there isn't an EU company route then.

Originally Posted by englishguygoinghome
As I (a layman) understand [*](optional) Wife (UKC) has an argument that Husband (non-EU) is needed to facilitate this deal (either by working in the company or looking after kids etc)
How would you get around the fact that the job has to go to a UK or EU citizen first? There are 500 million EU citizens. If the spouse was that specialised that he was in demand, then he would get a company to sponsor him to the UK or any country he wants to live.

For childcare. How would you get around the fact that the UK will pay benefits and childcare to the Brit if their income is low enough, therefore negating the need for the spouse to be the childs carer?

Originally Posted by englishguygoinghome
Unfortunately being such a test case may be useful for the wider community in the future but only helps the individual if they have no alternative options, are able to wait for a few years before moving, or are able/willing to get to and live in the UK pending such a decision.
Ifs, buts and maybe.

Even after those years of waiting for the results of their test case they may still be refused; or the UK might be out of the EU; or freedom of movement may be changed. Any planned changes and future changes for the UK will financially impact on the OP living in the UK with her spouse during that wait for her test case. Some are "ors" I know, but more likely to happen than the EU company route perhaps?

Originally Posted by SanDiegogirl

Your one man company is not going to get sponsoring status so this is a no go route for you.
I agree with this and it's the same conclusion on other forums with this starting a company to try to get around the spouse visa.

Last edited by formula; Mar 14th 2014 at 10:39 am.
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Old Mar 14th 2014, 10:27 am
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Default Re: get back to UK via employing one's own spouse?

Originally Posted by formula
How would you get around the fact that the job has to go to a UK or EU citizen first? There are 500 million EU citizens. If the spouse was that specialised that he was in demand, then he would get a company to sponsor him to the UK.

For childcare. How would yu get around the fact that the UK will pay benefits and childcare to the Brit if their income is low enough, therefore negating the need for the spouse to be the childs carer?
You wouldn't need to "get around" either. Firstly the situation brings with it a derived right of residence related to the individual (husband) which is based upon the wife's situation. (So no need to think about this as a work visa and show no availability of candidates on the market)
Secondly, under EU judgements such as Carpenter it is perfectly reasonable to expect a parent to be a primary care giver of a child, to the extent that said parent's absence and the need for additional child care in their absence would present a direct restriction on the EU-citizen's rights to exercise freedom of movement and/or services. Also underlined by Sharpston's latest opinion to the Dutch authorities, that a spouse's absence (even without considering child care) is enough to infringe on such rights.
Finally Sharpston also highlighted that consideration of a right to a family life must be integral to any judgements regarding EU law (such as this one) and separating spouses would be a clear breach of that.

But again, I would conceed, that the likelihood of the UKVI acepting this from an applicant rather than a judge is low, but the cost involved in trying is also minimal (probably under 100GBP)
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Old Mar 14th 2014, 11:00 am
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Default Re: get back to UK via employing one's own spouse?

Originally Posted by englishguygoinghome
But again, I would conceed, that the likelihood of the UKVI acepting this from an applicant rather than a judge is low, but the cost involved in trying is also minimal (probably under 100GBP)
Just look at how long the UK was prepared to fight MCCarthy and that failed for her.

In fact, on the back of that ruling the UK got new EU rules for the UK that went far beyond the McCarthy ruling and dashed the hopes of hundreds of thousands trying to use an EU route to live in the UK.
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Old Mar 14th 2014, 11:15 am
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Default Re: get back to UK via employing one's own spouse?

Originally Posted by formula
Just look at how long the UK was prepared to fight MCCarthy and that failed for her.

In fact, on the back of that ruling the UK got new EU rules for the UK that went far beyond the McCarthy ruling and dashed the hopes of hundreds of thousands trying to use an EU route to live in the UK.
Which ones? Are you referring to the recent tightening up on Singh applications?
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Old Mar 14th 2014, 12:54 pm
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Default Re: get back to UK via employing one's own spouse?

Originally Posted by formula
Just look at how long the UK was prepared to fight MCCarthy and that failed for her.

In fact, on the back of that ruling the UK got new EU rules for the UK that went far beyond the McCarthy ruling and dashed the hopes of hundreds of thousands trying to use an EU route to live in the UK.
I have to laugh at the way Formula always makes a drama out of it, as though the people considering Singh are the slavering Barbarian hordes clamouring outside the gate...instead of ordinary British folk trying to return to their homeland with a 'foreign' spouse.
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Old Mar 15th 2014, 10:28 pm
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Default Re: get back to UK via employing one's own spouse?

Originally Posted by WEBlue
I have to laugh at the way Formula always makes a drama out of it, as though the people considering Singh are the slavering Barbarian hordes clamouring outside the gate...instead of ordinary British folk trying to return to their homeland with a 'foreign' spouse.

The McCarthy ruling is the same as the Singh route??? That's news to me.

Last edited by formula; Mar 15th 2014 at 10:38 pm.
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Old Mar 15th 2014, 10:36 pm
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Default Re: get back to UK via employing one's own spouse?

Originally Posted by englishguygoinghome
Which ones? Are you referring to the recent tightening up on Singh applications?
No. The one where a dual national (Brit/x) now can't take advantage of their dual nationality. New EU rules that came in on the back of the McCarthy ruling.

Last edited by formula; Mar 15th 2014 at 10:40 pm.
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Old Mar 16th 2014, 6:32 am
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Default Re: get back to UK via employing one's own spouse?

McCarthy was very different to Singh, Eind and Carpenter. All McCarthy did was underline the fact that side story of active crossing of borders is needed to make use of EU rights. Supplying services across borders (carpenter) is one such possibility
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