Dependent ILR based on 2 years criteria

[globalindian]

Hello,

I have a query regarding the dependent ILR. My spouse has originally arrived in UK during Jan 2010 under Tier 2 - ICT dependent. They were here in UK till Sep 2013 but had to travel back to India for more than 1 year. In the mean time their dependent Visa expired and I have got an ILR by that time.
They returned to UK last year under partner of a person with ILR category (VAF4A).

The query is that can they apply for ILR based on their stay from Jan 2010 till Sep 2013? I guess if the dependent stayed in UK before June 2012 then for ILR it needs only 2 years rather than 5 years period. Or does everything get reset and their latest category will be considered as a starting point for ILR.

Please advise.

Regards

[vinny]

No. Everything was reset when they applied under partner of a person with ILR category on or after 9th July 2012.

[globalindian]

Thanks Vinny for your quick response.

[globalindian]

Can anybody please confirm the following:-
a) My spouse and child had entered under VAF4A and will need to apply to extension under FLR (M). Can anybody confirm what is the earliest date when they can apply? Is it 28 days before the expiry date or can the visa extension be done before that period?

b) Is there any continuous period of stay required for FLR(M) and subsequent ILR? The reason behind this is I am planning to travel outside UK on holiday for ~ 40 days continuously. Will this be a problem?

Thanks in advance.

[vinny]

a) See also Guidance.
b) an absence of 40 days shouldn't be a problem, provided that they don't apply for entry clearance from abroad again.

[globalindian]

Thanks Vinny.

[globalindian]

Quick question regarding application of further extension of my spouse and child. I am assuming as per the above notes that I can apply for FLR (M) for my dependents for further extension of their stay in UK.
As advised by Vinny I suppose I should delay the application of FLR M so that I don't have to pay for another extension before ILR.

My current query is regarding the Health Surcharge. Since my wife was in UK before 2015 do we need to apply for the NHS Health surcharge during FLR M?

[CR001]

FLR(M) is correct yes.

Your dependents will have to pay the immigration health surcharge, £500 for each dependent. No way to avoid this unfortunately.

[globalindian]

Thanks CR001 for your quick response.

[globalindian]

Dear members,

With reference to my situation given at the top of the post I would like to know some details around ILR for my family.

I have tried to visit the website .https://www.gov.uk/settle-in-the-uk. There are few questions around the sponsors situation and it checks if the sponsor was settled before the citizenship and if the route was tier 2 work visa ? The system then assess and suggests the following - "You can apply as the partner or child of a tier 1, 2 or 5 visa-holder who has settled in the UK
You may be eligible for settlement (‘indefinite leave to remain’) as the partner or child of a person who’s already settled using:

any tier 1 visa except Tier 1 (Graduate Entrepreneur) or Tier 1 (Post-Study Work)
a tier 2 visa".
Is this correct categary? Considering my situation above my spouse had their visa through family settlement and will be followed by fLR-m. Since they had a gap do we need to provide any reference to tier 2 dependent or what is the category on which my dependent to get ILR?


Thanks

[globalindian]

In continuation of my previous message I would like to reiterate that I had started through work permit from 2008 and followed by Tier 2. After continuing for 5 years I had got ILR on 2014.
Situation for my dependent:
My spouse has originally arrived in UK during Jan 2010 under Tier 2 - ICT dependent. They were here in UK till Sep 2013 but had to travel back to India for more than 1 year. In the mean time their dependent Visa expired and I have got an ILR by that time.
They returned to UK last year under partner of a person with ILR category (VAF4A) on 2014.

I would like to know through which category under the 5 year route they should apply for ILR. While I had tried to go to https://www.gov.uk/settle-in-the-uk site they had asked for few question regarding myself and if I had settled in UK before becoming citizen. Then they had asked question if I was on Tier 2 before getting settlement.
The output was following:
"You can apply as the partner or child of a tier 1, 2 or 5 visa-holder who has settled in the UK".

However since my situation is different and my family did not have continuity and had a fresh start through family dependent Visa (VAF4A) and FLR (M) which category should I apply during ILR. Any pointers will be appreciated.

Your input will be helpful.

Thank you.

[CR001]

No. Everything was reset when they applied under partner of a person with ILR category on or after 9th July 2012.

The advice given last year has not changed.

They cannot apply for ILR, they don't qualify for it, because they change visa and applied for new entry clearance as Spouse/Child Settlement visas. The time spent on Tier 2 ICT dependent is lost now.

They have to apply for ILR, when they qualify in 2019, on form SET(M) as spouse & child of person settled/BC.

Have you applied for an extension for them on FLR(M)? What are their exact dates of the visas?

[vinny]

She has leave as a partner of a settled person under Appendix FM. I think 319E(c) prevents her from applying for SET(O), as she does not have leave as the partner of a Relevant Points Based System Migrant under 319C.

Although it may be possible for her to switch back to being the partner of a Relevant Points Based System Migrant under 319C, her continuous leave was broken while she was aboard. So, she may still be subject to 5 years under 319E(d)(ii).

[globalindian]

Thanks vinny.
Basically after your initial explanation in the start of the post I am not interested in going through the points based system route for the ILR for my family.
However I was trying to enquire which category in the ILR should we be eligible.
So just to make sure that I have got it correctly:-
My wife and child would first apply for Extension - FLR (M). Rules applicable as under R-LTRP and E-LTRP. This will get them an extension for another 30 months.
At the end of 5 years period my wife and child can apply for the ILR through form SET(M) under the rules : R-ILRP and E-ILRP.

They are not covered under any rules mentioned in : Immigration Rules part 8: family members - Section 281 since it is for transitional period only.

Is that correct understanding?

Regards

She has leave as a partner of a settled person under Appendix FM. I think 319E(c) prevents her from applying for SET(O), as she does not have leave as the partner of a Relevant Points Based System Migrant under 319C.

Although it may be possible for her to switch back to being the partner of a Relevant Points Based System Migrant under 319C, her continuous leave was broken while she was aboard. So, she may still be subject to 5 years under 319E(d)(ii).

[vinny]

That's correct.

[globalindian]

Thank you CR001 and Vinny for your guidance.
Their dates for the Family Visa under VAF 4(A) Entry clearance:
a) 6th Jan 2014 but they travelled to UK on 12th Feb 2014.
b) Their FLR (M) extension is due in Sep 2016. I am yet to apply for it.

Regards

No. Everything was reset when they applied under partner of a person with ILR category on or after 9th July 2012.

The advice given last year has not changed.

They cannot apply for ILR, they don't qualify for it, because they change visa and applied for new entry clearance as Spouse/Child Settlement visas. The time spent on Tier 2 ICT dependent is lost now.

They have to apply for ILR, when they qualify in 2019, on form SET(M) as spouse & child of person settled/BC.

Have you applied for an extension for them on FLR(M)? What are their exact dates of the visas?