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What are your rights?

what are your rights

If you need leave to stay in the UK, help with living expenses and housing or medical treatment then one of THT Direct’s generalist advisors may be able to help you.

There are several categories you can claim leave to remain in the UK.

  1. Study
  2. Asylum
  3. Partner
  4. Work
  5. EU

Study

To get leave to study in the UK, you must be enrolled on a full time course and show that you are able to pay your fees, support and house yourself.

As a student you are not entitled to welfare benefits but you can get free treatment under the National Health Service as long as you are on a full time course of study which lasts for at least 6 months. You can also work for up to 21 hours per week.

For those of you already in the UK, the rules around switching to a student visa are quite complicated and you should call THT Direct and we’ll put you in touch with a local advice service. ALternatively you can look up your local CAB.

You can get further information on studying in the UK from the UK Border Agency.

Asylum

If you are in the UK and have a 'well founded fear' of being persecuted because of your race, religion, nationality, membership of a social group or political opinion, if you were to return to your country of origin then you might be able to make an asylum application.

This is an extremely complex area of law and you would need the assistance of an immigration specialist, who THT Direct can help you find. If your application is successful you will be granted refugee status and given permission to stay in the UK.

If you do not qualify for asylum but the UK Border Agency thinks there are humanitarian or other reasons why you should be allowed you to stay in the UK, you may be given temporary permission to remain here.

For more information see the UK Border Agency website.

Humanitarian protection

Some of you may be able to apply for leave to remain in the UK under the Human Rights Act 1998. The most important rights, in so far as people living with HIV, are Article 3, which aims to give protection against torture and inhuman or degrading treatment and Article 8, which confers the right to respect for private and family life.

However, you should note that since the decision in the case of N, only cases in the 'exceptional' or 'very exceptional' category is likely to succeed under Article 3. In the case of N, the House of Lords dismissed the appeal of a Ugandan woman living with HIV/AIDS on the grounds that there would be no breach of Article 3 of the Human Rights Act in requiring her to return to Uganda. The applicant’s condition must have reached such a critical stage (i.e. he is dying) that it would be inhuman to deprive him of the care he is receiving’.

Again, more information can be found on the UK Border Agency website.

Partner

If you intend to get married or enter into a civil partnership to a UK national, a EU national or someone who is resident in the UK, you should first check whether you are allowed to 'switch' or change into the category of wife, husband or civil partner.

Those of you who are not allowed to switch will have to return to your country of origin and apply to enter the UK as a fiancée or a proposed civil partner.

Since 9th May 2011 you do not need to obtain a Certificate of Approval before you marry or register your Civil Partnership. Find out more.

Those of you from abroad, who have been living with a British National or someone who is settled in the UK for at least 2 years, you may be able to apply to get leave under the same sex concession. This applies for heterosexual and same sex partners. Find out more.

Work

If you are a skilled or highly skilled worker then you may be able to get leave to remain under this category.

The UK Border Agency can give you further information.

EU

If you are a European Union (EU) National you do not need permission to travel to the UK. However, there may be restrictions if you want to claim benefits and you may not be eligible for Local Authority housing or for assistance if you become homeless.

In order to get assistance you would need to either satisfy the 'habitual residence test' or be exempt from that test. Additionally, from 1 May 2004, claimants have to show that they satisfy the 'right to reside test'. You can call THT Direct and be directed to advice services if you are told that you do not satisfy one or both of these tests, because they are quite complicated in practice.

You are exempt from the 'habitual residence test' as long as you are employed in the UK and doing 'genuine and effective' work and you would also have a 'right to reside'.

Those of you who are from Iceland, Norway, Liechtenstein and Switzerland, which along with the other EU countries form part of the European Economic Area (EEA), are also exempt. For those of you who can support yourself or who are self-sufficient students you may also be exempted from those two tests.

A2 Countries

If you are an EU national from Bulgaria and Romania, who joined the EU on 1 January 2007, and you want to work as an employee in the UK, you will need permission from the UK Border Agency before you start work. Find out more. However you do not need permission to enter or remain in the UK.

Bulgarian and Romanian nationals (known as 'A2' nationals) have limited rights to work in the UK. Until 31 December 2013, A2 nationals are broadly in the same position as they were before the countries acceded to the EU on 1 January 2007. 

This means that A2 nationals can only work for an employer in the UK with prior authorisation. 

Once an A2 national has worked legally in the UK without interruption for a period of twelve months, s/he will no longer be subject to worker authorisation. This twelve-month period must be either entirely after 31 December 2006 or must include some period of time after that date. S/he can then apply for a registration certificate in the same way and under the same rules as any other European national. 

A2 nationals who worked legally in the UK for twelve months before 1 January 2007 are workers exercising Treaty rights without restriction.