Highlands & Islands

Brain family visa: What happens next?

Brain family with Nicola Sturgeon Image copyright PA
Image caption First Minister Nicola Sturgeon has called on the Home Office to allow the Brain family to stay

An Australian family living in the Highlands could face deportation if they fail to complete their visa application by midnight on 1 August. Kathryn and Gregg Brain have been trying to comply with visa requirements so they and their seven-year-old son Lachlan can remain in the UK.

Why did the Brain family come to Scotland?

The Brains first visited Scotland in 2001, while they were on their honeymoon. The pair both have Scottish roots and said they fell in love with the country.

They began to plan then how they could return to Scotland to live.

Their visa application for Mrs Brain to study at the University of the Highlands and Islands was accepted in 2010.

After graduation, Mrs Brain intended to move onto the two-year post-study visa, which would give her time to find work and then apply for a longer term work visa.

However, the scheme was cancelled in 2012, so when Mrs Brain graduated she had to start looking for suitable work that would allow her to apply for a Tier Two visa.

What's a Tier Two visa?

As a general work visa, the principal requirement is the offer of a job. It is this offer that would allow Mrs Brain to lodge an application.

But it also has to be a skilled job that pays a minimum of £20,800 per year - a regulation introduced in 2012.

And the employer must be a Home Office registered sponsor with the correct documentation. Without this, the job offer does not count.

The Brains come from Australia and so are exempt from sitting the tests to prove that they have a good knowledge of English.

But they may need to demonstrate that they have some savings before the application is allowed.

Home Office rules state that Tier Two applicants must have £2,205 if they also want to bring a partner and one child to the UK - which would be the situation for the Brains.

Could the family receive a further extension?

Even with a willing employer, one immigration law expert told the BBC it would be "extraordinarily difficult" to get everything in place by the midnight deadline - although he said that rules could be "bent" if there was sufficient publicity and political pressure.

For example, if a correctly registered employer came forward and offered a skilled job paying enough money, the family could be offered another short extension to get the application lodged.

But this may well be refused if the Home Office want to make a "statement of power", he added.

What happens when the deadline passes?

It is unlikely that the Brains will receive a knock at the door of their home in Dingwall from immigration officials at midnight, even if no visa application has been lodged.

Passing the deadline will put the Brain family in the same position as tens of thousands of others in the UK who are here without current leave to remain.

But it kicks off an administrative process that could eventually lead to their removal from the country.

Brain family visa timeline

  • 2010: Kathryn Brain is granted a student visa with husband and son as dependents. She intends to later move onto post-study work visa
  • March 2011: Announcement of cancellation of post-study work visa
  • June 2011: Brains arrive in Scotland
  • 2012: Post-study work visa scrapped. Brains say they became aware of this just months before the change
  • May 2015: Mrs Brain applies for leave to remain under tier 4 (student) visa. Granted till December
  • December 2015: Family makes application for leave to remain made under article 8 of the European convention on human rights, the right to a family life. Refused in March
  • April 2016: Immigration Minister James Brokenshire extends family's "grace period" to remain in UK until 11 May. It is later extended until the end of May
  • 30 May 2016: Family given new deadline of 1 August 2016

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