spouse of ILR on long residence

[mirzaashraf]

Dear Members / Moderator,

I am currently on ILR (got June 2014) and got it on the basis of Long Residence (10 years) and my wife is due to apply for Settlement as my dependent.

She will be completing her 5 years stay in UK in Feb 2015.

She has been my dependent on
- Tier 1 - Post Study (Feb 2010 - Jan 2011)
- Tier 1 - General (Jan 2011 - to date)
- Her Tier 1 dependent visa is valid until Jan 2016.

Please advise whether she needs to apply for FLR(M) or SET(M) to begin the settlement process.

We have been told by one solicitor that...

"due to the fact that Main Applicant gained ILR through Long Residence, the time your wife has already spent at your dependant does not count towards ILR. She will need to switch into the spouse category using FLR(M) and will need to complete 5 years in this category before she will be eligible for ILR herself "

Please advise if she can apply directly for SET(M) Directly or what are the options available.

Many Thanks

[Amber]

You should have settled as a T1 applicant. The solicitor is correct.

[mirzaashraf]

Thanks Amber.
Do we have any other option to reduce this time from 5 years to 1 or two years?
Can we apply for her FLR(M) over the counter?
Many Thanks

[Obie]

Is there any requirement that you will not meet under the PBS in Jan 2015, if you apply under that provision. Under Paragraph 245CD.

If you continue to meet all the conditions, then you could make an application in order to engage 319E(b)(ii) .

I see nothing in law that prevents that, although it may cost a few penny.

It is an utterly bizarre situation. The rules cannot have the effect of disadvantaging you, for taking advantage of a provision in it that benefits you.

I don't think there is anything in law that prevents you from doing what i am suggesting. I know people with ILR are not subject to immigration control, so the conditions under the PBS system don't bind you, but it does not mean you cannot take advantage of it.

Other than that or you wife will have to wait for 5 years, provided you meet the financial requirements.

If you have child/children, this may boast your case.

[Amber]

The OP's spouse can only now switch to FLR(M) Obie, and as it's after 6 April 2014, it will be a 5 year route to settlement under Appendix FM, with an English and Financial Requirement. The OP settled as a Long Residence applicant so the dep can not settle as a PBS dep.

[Obie]

That aspect is not in dispute. I don't challenge it at all.

I am actually thinking in another aspect.

Similar case occurred with an Australian chap I advised few year back under the Ancestry route, where the rules say they should be applying at the same time for ILR or the spouse had obtain ILR under the Ancestry route.

The lady realised she was in fact a British and did not proceed with her an ancestry visa.

The time for settlement came for the husband, and that rule was creating an obstacle for the husband. I told him to write a letter, and he succeeded. I said it was ridiculous for her to apply for ILR, and i think the PRO agreed.

The court has ruled several times that the rule should not be interpreted as strictly as a statutory provision. That it is not a legislative provision.

I see not justifiable reason other that the fact that the spouse is settled under the long residence provision, why the wife's position should not be assimilated to that of a PBS migrant , who met all the rules over the period of their residence.

The SOS has a residual discretion, and they are required to act and exercise fairly. Perhaps O P'S case could provide the court with an opportunity to examine the lawfulness of the withdrawal/changes after 6th April 2014.

The wife had a legitimate expectation that after 5 years she will be settled, she came with the view to settlement.

The Secretary of state recognised this, which was why they left that provision in place, and suddenly it was changed in April.

A student did not have such expectation, a PSW did not have such expectation, but the O P'S wife did.

It is worth an argument. I don't go Any further than that.