Post July 2012 PBS dependant

[Dantean]

If a spouse entered the UK with a PBS dependant visa which was applied for after 9 July 2012 (end of August 2012), would there be any discretion for an application for settlement to be considered under the pre 9 July rules if the 2012 PBS dependant application was delayed due to circumstances beyond the applicant's control? The main applicant will be eligible for ILR soon.

Would it be useful to write a letter of explanation requesting that with a SET(M) ? Or is there just no leeway for a caseworker to consider it that way?

[geriatrix]

Is the person in question dependant of a migrant applying for settlement under LR?

[Dantean]

Yes, main applicant will be eligible for 10 year Long Residence.

[geriatrix]

I believe there is discretion allowed when a leave to remain application could not have been made in-time due to compelling reasons, but am not aware of any guidance to allow such discretion in entry clearance applications.

[CR001]

Sushd, would it not be a moot point as the PBS Dependent would need to switch to FLR(M) once the main applicant obtains ILR based on long residence and therefore a new 5 year route to ILR?

[geriatrix]

I asked the question about LR for this very reason but failed to mention in my subsequent response!!

Time to go to bed I guess!
And, thanks!!

[CR001]

And thanks for pointing out the discretion for in country leave to remain applications etc, I did not know this.

[Dantean]

OK, thanks both. It looks like this post by vinny has the details about the change in April 2014 which makes it irrelevant when the original PBS dependant visa was applied for with regard to LR based ILR dependants.

[Dantean]

If the spouse of a settled person with ILR gained by Long Residence was admitted to the UK as a PBS dependant, but their last leave was dependant of a Turkish Worker (ECAA1), would they be able to apply with SET(M), would they have to use FLR(M) or would it be something else, since the last period was not as a PBS dependant?

In some cases, the Turkish Worker dependant is treated as a PBS dependant, but I am not sure if that applies with regard to FLR(M). The dependant has been in the UK for 3 years starting with a PBS dependant visa granted in 2012. Arrived early 2013 and switched to ECAA dependant later in 2013.

[Dantean]

Is there anything similar to paragraph 196E which might apply in the case of a Turkish Worker dependant?

I noted that on this page, the description of the document includes the phrase indefinite leave to remain:

https://www.gov.uk/government/publicati ... form-ecaa3

Application for an extension of stay or indefinite leave to remain in the UK and biometric immigration document as a dependant of a Turkish national who has limited leave to enter or remain as a businessperson or worker under the ECAA with Turkey

Though I can't see on the application itself where this is possible. Perhaps it's just a typographical error?

[vinny]

...
Does this category lead to settlement (indefinite leave to remain)? No
...
Under article 6(1) of decision 1/80 of the Association Council there is no provision for a Turkish employed worker to be granted settlement in the UK after completing four years legal employment in the category, only the freedom to take up employment with any employer.

If there are no provisions for the Turkish worker to apply for ILR in the category, then I doubt that the dependants may apply for ILR in the category as well.

However, a Turkish businessperson may be eligible for ILR.

[CR001]

She needs to apply to switch to FLR(M) which will be a 5 year route (2 x 2.5 year FLR(M) visas) before qualifying for ILR.

[Dantean]

Thanks Vinny and CR001

Something I noticed in that internal guidance document:

After three year’s lawful residence a family member will get their own right of access to the labour force, set out in the first indent of article 7 and with it a right of residence protected by European Union (EU) law.

Would that mean the non-EAA dependant could apply for a UK residence card?

I suppose that would have some advantages over FLR from FLR(M) (including access to certain benefits and no income requirement), but it's not clear to me that after 5 years of living in the UK, the UK residence card holder would be eligible to become a permanent resident.

[vinny]

I don't think that would be applicable as the Turkish businessperson or employee is no longer in the category, after having been granted ILR under Long Residence.

I agree with CR001, unless the dependant is also eligible for ILR under Long residence.

Even having leave as a dependant of a Turkish businessperson does not seem to help:

(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who is, at the same time, being granted indefinite leave to remain as a Turkish ECAA businessperson.
(c) The applicant must have, or have last been granted, leave as the Partner of the Turkish ECAA businessperson who is being granted indefinite leave to remain.

[Dantean]

But the family member's "own right of access to the labour force" built up after 3 years residence wouldn't be lost because the worker switched categories, would it?

Page 33 says:

Rights gained by family members under article 7 can only be lost on the following grounds:

• 
• public policy
•  public health
•  public security (as defined in European Union (EU) law), or
•  if the family member leaves the UK for a significant length of time (two years or more)
  without legitimate reason.

I looked at that CHAPTER 6 SECTION 6, IMMIGRATION DIRECTORATE INSTRUCTIONS and the only version I could find online is from 2011. Other later versions have been withdrawn, so I wonder if that was supplanted by some other document.