ILR Clarification - Not on dependent Visa.

[vjs8in]

Hi,

This forum has been very helpful in understanding various queries. I've gone through a few other posts on this forum, but still would like to post m and seek some suggestions, as each case is unique.

I came to UK in October 2006 on a WP with my wife as a WP dependent.

In Jan 2008 My wife received HSMP approval, and went back to India to get an EC, However she was given a Tier1 visa in Apr 2008 with 3 years validity.

In Dec 2009, I applied for my Tier 1 via a consultant, however it was rejected due to the way offshore salary was represented, and i was told that i could not use a multiplier for offshore salary. I subsequently reapplied myself without a multiplier for the salary, and successfully received my Tier 1. Me and my wife continued to have our own Visa's and thought it was a good idea to do that at that time.

Now the issue, In Oct 2011, I would finish 5 years of residence in UK, so would my wife, however I am not sure she can apply for ILR with me, as she is not on my dependent visa. I have read some boarders saying that she would still qualify under the dependent scheme, however my query now is

1- she is due for extension of HSMP in Apr 2011, is it o.k for her to do that and then i can include her in my ILR application in Oct'11, or

should She be on my dependent visa in order for me to apply for ILR together?

2- what kind of documents do we need to show that we have been living together? I obviously have the marriage certificate, and have some council tax payment receipts, is this sufficient?

3- what is the earliest i can apply for my ILR? I hear there are some changes to rules due to come in in June'11, any idea how this might affect me?

Thanks for your responses in advance.

[geriatrix]

1. You can include your wife (as a dependent) in your settlement application only if she is present in the UK on a "dependent" leave to enter / remain (visa).

To change visa status from HSMP / Tier 1 main migrant to dependent of HSMP / Tier 1 migrant one needs to travel to home country and apply for EC.

2. Have a look at the SET(M) form (section 10, note 8 ) to understand what sort of documents are accepted by UKBA as evidence of cohabitation. (SET(M) is only for your reference, not for either of you to use for settlement application).

3. Under current rules, you cannot apply any earlier than 28 days from the 5th anniversary of your entry in the UK as a WP migrant. As of now, there is no information whether, when or in what format the new government will implement the earned citizenship law(s).


regards

[vjs8in]

Thanks for the response, after reading a few recent cases in the forum, this is getting very muddy.

What happens if and when we apply together, and for some reason as seen in this forum many times, Home office decide to not agree my wife's ILR. what is her status in that case?

She has been with me in UK all the time with me, so is it 2 years on my visa, or just on my visa at the time of applying.

I am a T1 General migrant not HSMP.

[geriatrix]

If your wife is not granted ILR at the same time as you, when applying as your dependant having lived in the UK for 2 years as your spouse, such a decision will be unlawful (319E). In such case you should consider seeking professional legal advice to challenge the refusal.

But if it does happen, as has been observed, and you do not wish to seek legal advice and / or pursue the matter legally then the next step would be that your wife applies for leave to remain as spouse of a settled person.


regards