SET(m) or FLR(m)

[Kestane]

Hello everyone,

I'm in a bit of a complicated situation and I wanted to ask for guidance on whether I should go for ILR or extend the the visa I currently have (spouse 2years). The reason for my hesitation to apply for ILR is because of my abscences from the UK which are a total of 189 days with 1 long strech of 104 days. I know that SET(M) should succeed if 287 is satisfied but I was originally thinking of applying for another further leave to remain rather than risk being refused for ILR and then go for settlement once my long stretch of 104 days was 2 years behind me however with the recent proposed changes coming to effect on 9/07/12 I don't know what to do anymore.

My questions are;

1)If I apply for ILR on november this year (when my current visa ends) and get refused would I then be considered a brand new applicant for FLR under the new law?

2) If I go for FLR without applying for ILR would that be considered an extension of the current leave to remain and based on the old(current) law or would that still be considered under the new law.

3) Is it possible for me to apply for another FLR(m) (before 9/07/12) 5 months before the current one ends?

Any guidance will be greatly appreciated.
Thanks

[geriatrix]

Why do you think that your settlement application will be refused because you have total absences of 189 days including a single absence of 104 days?
See also Time spent outside the UK.

1. No, an out-of-time FLR(M) application will not succeed.
2. Current rules.
3. It is your choice when you wish to make another FLR(M) application.

[Kestane]

Thanks for your reply sushdmehta, 189 days is the only reason why I think my application might fail I've tried to asses whether it will be a problem or not but no one seems to be able to give me a definate answer because the home office is quite vague about time spent abroad and I really don't want to waste the money and time stressing about it. Thats why before I was inclined to think I'd be better of just going for another FLR when its time...

1) I didn't really understand your first answer since it won't be an out of time FLR(m) application at november when my current visa will be within 28days of its expiry date. I either have to go for settlement or another FLR, my question was what happens if set(m) fails and I have to go for FLR(m) in terms of the law change. Would I come under the new law like someone who just got married and applied for their first set(m) ? or would it be considered a countinuation of my old visa under the old rules?

2)so just to confirm you are saying If I don't apply for ILR and go for FLR my application which will be made at november/2012 (its due time) would be under the law used before july 9th?

3) I am free to apply for another further leave before the one I have, has 5months to expire? So you can apply for a visa under the same category before its expiry date?

Thanks your your patience

[cs95tdg]

Why do you think that your settlement application will be refused because you have total absences of 189 days including a single absence of 104 days?
See also Time spent outside the UK.

Thanks for your reply sushdmehta, 189 days is the only reason why I think my application might fail I've tried to asses whether it will be a problem or not but no one seems to be able to give me a definate answer because the home office is quite vague about time spent abroad and I really don't want to waste the money and time stressing about it. Thats why before I was inclined to think I'd be better of just going for another FLR when its time...

Have you read the information provided under the "Time spent outside the UK." hyperlink Sushdmehta has provided? If not I suggest that you do so, as the information needed to answer this particular question is available there.

The answer provided for Q16 under the following sticky will also be useful:
http://www.immigrationboards.com/viewtopic.php?t=79378
"....Only principal migrant is subject to these (absence) requirements, not dependant(s). "

[Kestane]

Yes cs95tdg I've read the time spent outside the UK link before it says
"Your application to settle here will be judged on its merits, taking into account your reasons for travel, the length of your absences, and whether you and your partner travelled and lived together while you were outside the UK."

-My reasons for travel is holidays and health (had a not so serious operation during the single stretch of 104 days, have a docs line as proof)
-My wife was with me 53 days out of 189 while abroad and ofc we lived together.

What do you think about my chances of geting ILR with the above reasons and abscences?

Thanks

[geriatrix]

The answer provided for Q16 under the following sticky will also be useful:
http://www.immigrationboards.com/viewtopic.php?t=79378
"....Only principal migrant is subject to these (absence) requirements, not dependant(s). "

Well, the sticky contains information relevant to applicants under the economic route (as the subject suggests) and therefore the information contained therein is not necessarily relevant to applicants under family route.
Under family route, the applicants are the "principal migrant", and the settled person or British citizen a sponsor.


Kestane,
there is no restriction on absences for people applying for settlement under the family route - other than what is stated on the linked webpage. If worried, I believe a brief explanation of the specific circumstances (e.g. - ill health) and of the absences when you and the sponsor were together outside the UK will definitely help.

And, applicants are allowed to be absent from UK without the sponsors at their tail all the time!

[Kestane]

Thanks for your reply Sushdmehta

So very briefly am I to understand from your comments that 189 is not a big deal under family route and I should just make my ILR application at due time with a cover letter explaining the abscences with relevant proof and hope for the best ?

and don't consider applying for FLR before the new immigration gets in affect (which I'm still a bit unclear as to whether I can make an application under the same category before the existing visa runs out)?

[cs95tdg]

The answer provided for Q16 under the following sticky will also be useful:
http://www.immigrationboards.com/viewtopic.php?t=79378
"....Only principal migrant is subject to these (absence) requirements, not dependant(s). "

Well, the sticky contains information relevant to applicants under the economic route (as the subject suggests) and therefore the information contained therein is not necessarily relevant to applicants under family route.
Under family route, the applicants are the "principal migrant", and the settled person or British citizen a sponsor.

Thanks Sushdmehta for the clarification & correction. A lapse in my attention to detail here, apologies if it caused any confusion to the original poster.

I'd agree that a cover letter (with any available supporting docs) would suffice for the absences mentioned, purely for ease of mind (& clarity/justification for the CW) as I haven't seen anything to suggest that a spouse of a settled person is subject to any explicit absence restrictions.

While not relevant to the question posted here, just FYI there are however absence restrictions if and when the applicant subsequently applies for naturalisation.

[Kestane]

Yes cs95tdg, I know that there are restrictions for naturalisation, that is why I think 189 days is a bit much, if you apply the same sort of restrictions for ILR (although there no written law about the number of days).

Thank you Cs95tdg and Sushdmehta, for answering my question.