SET(O) or FLR(M)?

[gdfk]

Need help.

I recently gained ILR based on long residency (10 years). I was on Tier 1 General visa previously. My wife has been on Tier 1 General Partner visa since June 2010 and her visa is running out next month. Can she apply for settlement on SET(O) (ticking reasons not covered by other application forms) ? or does she needs to make a switch into spouse category FLR(M) ?

Thanks

[gdfk]

Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom

287. (a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:

_(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;

[geriatrix]

and then obtained an extension of stay under paragraphs 281 to 286 of these Rules

Which can only be achieved by switching to FLR(M).

[gdfk]

and then obtained an extension of stay under paragraphs 281 to 286 of these Rules

Which can only be achieved by switching to FLR(M).

An extension is required if she has not completed 2 years

[Greenie]

It is also required if the main migrant was granted ilr under the log residency route and not after 5 years as a PBS migrant. This is because the dependent partner of a PBS migrant can only apply for ilr as a PBS dependent an satisfying the conditions of para 319E of the immigration rules which can only be satisfied if the main migrant is at the same time being granted ilr as a PBS migrant or has already done so. A PBS dependent of a PBS migrant who has applied for ilr under the long residency route does not meet this requirement and therefore has to switch on FLR(M). 319.E was changed on 5th September to make this explicit.

[geriatrix]

and then obtained an extension of stay under paragraphs 281 to 286 of these Rules

Which can only be achieved by switching to FLR(M).

An extension is required if she has not completed 2 years

I would like to know which immigration rule says so? 319E may not be applicable here because, as explained by Greenie and our understanding of 319E in the way it is worded, you did not receive settlement as a PBS migrant but under long residence. That you happened to be a PBS migrant at the time of settlement application is irrelevant.

That said, do appreciate that the changes are new and their interpretation subject to individual understanding. Hence, best to check with UKBA - ideally from the settlement ops policy team.

[gdfk]

Right, I have called UKBA enquiry office 3 times and I am being told that if she wants to apply for settlement, fill SET(O) and tick 'Other purposes or reasons not covered by other application forms' option box.

I have emailed settlement ops. Any idea as to how quick they respond ?

[Greenie]

Its all very well them telling you the form but have they told you under what rule she qualifies for settlement?

[cy2012]

Right, I have called UKBA enquiry office 3 times and I am being told that if she wants to apply for settlement, fill SET(O) and tick 'Other purposes or reasons not covered by other application forms' option box.

I have emailed settlement ops. Any idea as to how quick they respond ?

Another post by ankit0708 (http://www.immigrationboards.com/viewtopic.php?t=114173) also confirmed that SET(O) could be used for your wife for settlement. In my view, there is no point for us to clarify with HO under what rule exactly dependents can apply directly for settlement. As long as they allow this, isn't it exactly what we want? In addition, it doesn't really make sense to ask the spouse of long residence migrants to switch first, considering that they may have lived together in the UK for up to 9 or nearly ten years, and then apply again for settlement the following day after their switch. It would be purely a waste of time and money, and would also add extra workload for HO.

[Greenie]

It does matter if the rules don't allow settlement in these circumstances as applications may be refused.

See

http://www.whatdotheyknow.com/request/f ... _july_2012

[cy2012]

It looks like different departments in HO are interpreting the rules differently. As ankit0708 did not need to pay for his/her first visit and was just told to use a different form, the risk of losing application fee is little.

[geriatrix]

It looks like different departments in HO are interpreting the rules differently. As ankit0708 did not need to pay for his/her first visit and was just told to use a different form, the risk of losing application fee is little.

Only at PEOs where payment is not taken before the caseworker assesses the application!!

[faz28]

Right, I have called UKBA enquiry office 3 times and I am being told that if she wants to apply for settlement, fill SET(O) and tick 'Other purposes or reasons not covered by other application forms' option box.

I have emailed settlement ops. Any idea as to how quick they respond ?

Another post by ankit0708 (http://www.immigrationboards.com/viewtopic.php?t=114173) also confirmed that SET(O) could be used for your wife for settlement. In my view, there is no point for us to clarify with HO under what rule exactly dependents can apply directly for settlement. As long as they allow this, isn't it exactly what we want? In addition, it doesn't really make sense to ask the spouse of long residence migrants to switch first, considering that they may have lived together in the UK for up to 9 or nearly ten years, and then apply again for settlement the following day after their switch. It would be purely a waste of time and money, and would also add extra workload for HO.

No should apply Flr(m) first & apply for ILR straight away. See this http://www.whatdotheyknow.com/request/n ... ing-315577

[15Jan]

Right, I have called UKBA enquiry office 3 times and I am being told that if she wants to apply for settlement, fill SET(O) and tick 'Other purposes or reasons not covered by other application forms' option box.

I have emailed settlement ops. Any idea as to how quick they respond ?

Another post by ankit0708 (http://www.immigrationboards.com/viewtopic.php?t=114173) also confirmed that SET(O) could be used for your wife for settlement. In my view, there is no point for us to clarify with HO under what rule exactly dependents can apply directly for settlement. As long as they allow this, isn't it exactly what we want? In addition, it doesn't really make sense to ask the spouse of long residence migrants to switch first, considering that they may have lived together in the UK for up to 9 or nearly ten years, and then apply again for settlement the following day after their switch. It would be purely a waste of time and money, and would also add extra workload for HO.

No should apply Flr(m) first & apply for ILR straight away. See this http://www.whatdotheyknow.com/request/n ... ing-315577

For UKBA, this is all about making money!!!

I hope someone goes for JR on this idiotic policy.

[gdfk]

As a policy team we are unable to provide advice on individual applications. However, I can clarify the Rules and confirm that based on the information given in your email your wife will not be eligible to apply for ILR until she has applied for further leave to remain as the dependant spouse of a person who is settled in the UK.
 
There is provision under paragraph 319E of the Immigration Rules for dependant spouses/partners of PBS migrants to apply for ILR at the same time as the PBS migrant, or later when the PBS migrant obtains/obtained ILR as a PBS migrant.
 
When the PBS migrant obtains ILR under the Long Residency category their partner is no longer eligible to apply for leave as a PBS migrant dependant. The spouse/partner will need to apply to "switch" into the dependant of a person who is settled in the UK category. Those partners who are covered by the transitional provisions (those who were granted leave to enter or remain in the UK under Part 8 of the Rules before 9 July 2012 - see http://www.ukba.homeoffice.gov.uk/polic ... -8-app-fm/ ), should apply for FLR under paragraph 284 of the Rules and submit application form FLR(M). 
 
Paragraph 287 of the Rules provides for leave as the partner of a PBS migrant and leave as the partner of a person settled in the UK to be amalgamated to meet the qualifying period for ILR. Therefore, if the partner has completed 2 years qualifying leave, once they have “switched” categories they can apply for ILR on form SET(M).
 
I hope this information is useful.
 
Regards
 
Settlement Operational Policy

[gdfk]

Seems that the settlement ops team is giving consistent reply to people in similar situation. However, the staff at home office immigration enquiry seem to be clueless about this rule.

If I was to book an appointment for SET(O) lets say and get my wife to take both forms (SET(O) and FLR(M)) with both sets of supporting documentation in when she goes in, would they still accept the relevant one (be it FLR(M))?

[gdfk]

My wife was granted ILR today and she filled SET(O). So no matter what the rules say, end of the day it all depends on your individual circumstances.

[geriatrix]

My wife was granted ILR today and she filled SET(O). So no matter what the rules say, end of the day it all depends on your individual circumstances.

Not the individual circumstances but in fact how ignorant the caseworker assessing the application is about the relevant immigration rules!

Lucky you (spouse rather), congrats!!

BTW, which PEO was this at?

[cy2012]

My wife was granted ILR today and she filled SET(O). So no matter what the rules say, end of the day it all depends on your individual circumstances.

Good news for all long residence applicants! Like I said, there is no point to argue with the HO that our spouses are not qualified for settlement directly (I can't see this is in the interest of any of us). There have been a couple of cases that spouses of ILR applicant based on long residence were told by HO to use SET(O) form for settlement directly, and I hope more people will prove this by their cases.

[Greenie]

Sorry but it really isn't good news for all long residence applicants. The rules clearly do not permit settlement in these circumstances and the OP's spouse was lucky to get a caseworker who does not understand the rules. It would be unwise for anyone to rely on this example because at some point the caseworkers will get to grip with the new rules and such applications will (correctly) be refused.

[gdfk]

Sorry but it really isn't good news for all long residence applicants. The rules clearly do not permit settlement in these circumstances and the OP's spouse was lucky to get a caseworker who does not understand the rules. It would be unwise for anyone to rely on this example because at some point the caseworkers will get to grip with the new rules and such applications will (correctly) be refused.

How do you know that the caseworker did not understand the rules ? Perhaps some of us should educate them.

[ankit0708]

Hi guys,

Just wanted to let you know that my wife has ILR without switching to FLR(M). In summary, we were both on PBS (Tier 2) and while I was on PBS, I got ILR through long residence.

As she had already completed 2 years on PBS, she did not need to switch to FLR(M) but filled up SET(O) and ticked other reason and got her ILR straight away.

So I am happy because the case workers are using their common sense because it would not make sense to switch to a category and then switch again - cost money and resources.

[cy2012]

Many congratulations! I guess there won't any objection for me to say this is a good news this time?

[geriatrix]

An example of a caseworker making a decision on the basis of specified immigration rules rather than what some may call "common sense" and some "ignorance".

The good part is that ILR cannot be revoked, even if it is granted on the basis of "common sense". So, some applicants (as is evident from posted cases above) end up lucky and will be able to make hay while the sun shines.