Long Residence and PBS deps

[gmaruf]

Dear Amber,

I have been following you for long time and really got benefited from your answer which was given to others in several threads. Specially I can remember on thread and queries of Ms Aerial. [ source: http://www.immigrationboards.com/immigr ... 43210.html]

After seeing all your answers and great assistance I thought you could help me in my situation. I have got my ILR on 7th March 2014 for which I applied on 29th of November 2013. On the same day my wife applied using the form FLR(M) and requested the home office to hold her application until my case is decided. According to our request home office hold my wife's FLR(m) and I notified the Home Office that I got my ILR [though home office was well aware of it]. But yesterday I received a letter from HO saying that my wife's application falls to be refused solely because she does not fulfill the requirement of 18600GBP as she showed her earning of 13955GBP P/A and I did not showed any income in her application as I was unemployed that time.

My wife was granted visa as my dependent for the first time since 2010 [ She came in the UK in 2004 and she was student till 2010] though from 2010-2011 she was a PSW dependent as my visa category was PSW. But from Jan 2011 to December 2013 she was a Tier 4 dependent as my visa category was Tier 4 student.

I strongly rely on Chapter 8- Immigration rule A280(c) which explains transitional arrangements as Home Office granted Tier 4 Dependent visa for my wife before 9th July 2012.

1) Aren't Home Office in a big mistakes to put her under 18600 GBP P/A threshold? she does not fall under this rule in the first place, Isn't it?

2) Should we write to home office notifying this particular Immigration rule as the case worker also suggested me to write to him by 21st of May if I have anything to say regarding his decision? [He also gave a green sticker where his name is marked and advised my wife to stick this label while sending]

3) He also notified my wife that, he is not gonna issue a formal refusal letter yet as a case on 18600GBP issue is still pending in appellate division to be decided and he will keep holding my wife's application until the verdict is announced.

4) Moreover, at the first time she showed her income is 13955 and we showed that we are giving one room sublet and also earning for them. I have a 3 years old son and not sure whether this income is suffice. At this moment I am receiving housing benifit+Child benifit+WTC+CTC+ Contribution based JSA. should I give all this information while we draft a letter to case worker?

5) we are receiving WTC &CTC under her name though I applied for it and put my wifes name as she is working at this moment and I am still looking for job. Does this WTC and CTC have any effect on her application as she is not supposed to take public fund. I called to the HMRC they said its fine as you have got ILR and we count this as jointly and it will not breach any law. Is this explanation of HMRC is correct?

I will be so grateful if you could answer my questions please.

[Amber]

If you were given the right to appeal, appeal within 10 days.

Also write to the HO and ask them to reconsider, explain that as you made the application before 6 April 2014 you should be considered under Part 8 of the immigration rules, thus Appendix FM would not apply and thus you only have to show adequate maintenance and accommodation rather than a Financial Requirement.

As:

(c) With regard to the other changes, if an applicant has made an application for entry clearance or leave before 6 April 2014, the application will be decided in accordance with the Rules in force on 5 April 2014.

[gmaruf]

Dear Amber,

Thank you very much for taking time and reply my queries. Out of curiosity,

1) has HO changed the A280(c) Rule [Transitional Arrangement under Immigration Rule,Part 8] on or after 6th April 2014? Isn't it a retrospective effect? is it a traditional practice in UK legal history?

2) Do I have to show my income from benefits as mentioned earlier for further safety in case HO officer tries to find another fault?

[Amber]

Do actually read what I wrote, retrospective law is not a traditional practice in the English legal system. Transitional protection is offered for those who submitted applications before 6 April 2014.

[gmaruf]

Do actually read what I wrote, retrospective law is not a traditional practice in the English legal system. Transitional protection is offered for those who submitted applications before 6 April 2014.

Dear Amber,

Thank you for your help. I will draft a letter according to your instructions. Will update it in this forum if I get any reply. I have also seen a thread where Mr. Maan143 mentioned a letter which was sent to him from home office. I am copy and pasting that letter which I think also the same thing what you told me earlier-

maaan143 wrote:

hi I send an email got this response from home office,


Dear Sir,

Thank you for your further email.

As outlined in our previous email, on 6 April 2014 there will be a change to the Immigration Rules that will mean PBS dependants who are applying to ‘switch’ into the Partner of a Settled Person route will have to apply under Appendix FM of the Rules, and will not be able to combine any leave they have accrued as a PBS dependant with leave as a Partner under Appendix FM. This change will apply to all applications made on or after 6 April 2014.

However, those who make an application to switch into the spouse of a settled person category before 6 April 2014, and who were granted leave to enter or remain as the dependant of a PBS migrant prior to 9 July 2012, can be considered under the transitional Part 8 rules for further leave to remain under Paragraph 284. A person meeting these rules would be granted 2 years further leave to remain.

Those who are granted under Part 8 can combine any leave as a PBS dependant, with leave as the partner of a settled person granted under Part 8, to meet the qualifying period under paragraph 287 of the Immigration Rules, which is 2 years. They will need to satisfy all the requirements of these rules, including the English language requirement. Further information on this is available on our website at the following address: https://www.gov.uk/remain-in-uk-family

A person meeting the above requirements can consequently apply for settlement at any point after they have competed 2 years in a combination of these 2 categories (PBS dependant and spouse of a settled person).

Our website will be modified on 6 April 2014 to reflect the changes in the Immigration Rules relating to PBS dependants that come into effect on that date.
Kind Regards,

Karen.

Karen Joynt | Family Migration Operational Policy | Immigration and Border Policy Directorate | Home Office