FLR or ILR for my Dependant

[geriatrix]

I stand to be corrected but I believe that the reference "relevant PBS migrant" in 287(a)(i)(d) is to a migrant in a PBS category that leads to settlement, and Tier 1 (PSW) is not amongst those.

Anyways, dependant(s) of someone applying for settlement under long residence cannot apply for settlement at the same time (as the main applicant) irrespective of the main applicant's immigration category before such settlement application. Such dependants should apply for FLR(M) before their current leave expires.

[Kitty]

319AA. In paragraphs 319A to 319K and Appendix E, 'Relevant Points Based System Migrant' means a migrant granted to leave as a Tier 1 Migrant, a Tier 2 Migrant, a Tier 4 (General) Student or a Tier 5 (Temporary Worker) Migrant.

Unfortunately the definition doesn't refer to paragraph 287 as well, but I can't find the term defined differently anywhere else.

It doesn't specify Tier 1 (General).

[Greenie]

I am inclined to agree with Kitty - this is the only definition of "relevent points based system migrant" in the rules (although there is a definition of 'pointws based system migrant in para 6 of the rules).

I believe there is at least one member whose wife applied for ILR with a combination of leave as a PSW dependent and spouse of a settled person. I would agree with Sushdmehta's logic as to why only dependents whose leave would ordinarily lead to settlement after two years would be included, and potentially this may have been their intention when they drafted the rules, however this is not reflected in the definition and neither did they set this out in the explanatory memorandum to the statement of changes when they amended the paragraph, therefore I think that as the rules stand other PBS dependents can rely on para 287(a)(i)(d)

[geriatrix]

Have sent an email to the relevant team seeking clarity. Will post as soon as I have a response.

[Greenie]

Have sent an email to the relevant team seeking clarity. Will post as soon as I have a response.

great, thanks sushdmehta. I am intrigued as to what they come back with. I wonder if they even know what they intended?!

[Kitty]

If we see a sneaky additional amendment to the Rules in the forthcoming statement of changes we will know that sushdmehta's correspondence has fired them to action!

[geriatrix]

Have a response from UKBA after 2 weeks of initially emailing them, followed by 2 reminders in the interim.

Enquiry sent to UKBA:
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To whom it may concern:

I am writing to you in context of the requirements for indefinite leave to remain for the spouse of civil partner of aperson present and settled in the United Kingdon, specifically the paragraph 287(a)(i)(d) and 287(a)(i)(e) which state:

__(d) the applicant was admitted to the UK or given an extension of stay as the spouse or civil partner of a Relevant Points Based System Migrant, and then obtained an extension of stay under paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here; or

__(e) the applicant was admitted to the UK or given an extension of stay as the unmarried or same-sex partner of a Relevant Points Based System Migrant and during that period married or formed a civil partnership with the person whom he or she was admitted or granted an extension of stay to join and has completed a period of 2 years as the unmarried or same-sex partner and then the spouse or civil partner of the person who is now present and settled in the UK;


Query:
My query is with regards to the reference to "Relevant Points Based System Migrant" in these two paragraphs. I would like to have clarity whether:
1. this reference is only to those PBS migrants who, prior to being granted settlement, were in a PBS category that leads to settlement in its own merit, e.g. - Tier 1 (General), Tier 2 (General), etc., or
2. this reference encompasses all PBS migrants irrespective of whether their PBS category, prior to their settlement application, leads to settlement or not (e.g. - Tier 4 or Tier 1 (PSW)).

Perhaps, scenario based examples will help understand the perceived ambiguity and the clarity I am seeking.
Scenario 1
A Tier 1 (PSW) migrant has been granted settlement under long residence. He has a dependant, now on FLR(M) leave, who has lived in the UK for 1 year as a Tier 1 (PSW) dependant and 1 year as spouse of settled person. Assuming all other relevant requirements are met, can the dependant now apply for settlement because requirement specified under 287(a)(i)(d) or 287(a)(i)(e), as the case may be, is fulfilled?

Scenario 2
A Tier 4 migrant has been granted settlement under long residence. Assuming all other relevant requirements are met, can his dependant who has recently switched to FLR(M) leave and has has lived in the UK as a Tier 4 dependant for 2 years now apply for settlement because requirement specified under 287(a)(i)(d) or 287(a)(i)(e), as the case may be, is fulfilled?
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Response received from UKBA:
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Thank you for your email.


Paragraph 319AA of the Immigration Rules confirms what a “Relevant points based system migrant” is i.e. a migrant granted leave as a Tier 1 Migrant, a Tier 2 Migrant, a Tier 4 (General) Student or a Tier 5 (Temporary Worker) Migrant. Therefore, leave as the partner of a person granted leave in one of these categories is appropriate for the indefinite leave requirements in paragraph 287(a).


Regards


Pat
Settlement Operational Policy
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[geriatrix]

For dependants of HSMP/PBS migrants applying for settlement under the economic route (5 years residence), please read this topic.
For dependants of migrants applying for settlement under long residence, please read this topic.