SET(O) for ILR as a long residence's spouse

[casonyy]

Hi I am most grateful for any advice as my husband's dependant visa is due to expire in 4 days, as a result of an unsatisfying disposal from Glasgow PEO yesterday.

Our situation and PEO experience is similar to mako's (http://www.immigrationboards.com/viewto ... 3962442e81) case but with some variations:

A. I have been employed by the same university since 2007 till now

B. 22/08/2008-31/10/2010 I was on work permit visa and my husband joined me on 03/10/2008, with a uk entry clearnce 'visa to join spounse/cp' (visa valid: 23/09/2008-31/10/2010)

C. Since work permit was abolished, in sept 2010 we made further leave to remain and from an old WP holder, I was granted as 'Tier2 (general)' leave to remain, valid till 14/11/2012, my husband is holding his 'T2 (DEP) Partner leave to remain'.

D. In April 2012 I made my ILR application as long residence and was granted settlement ILR visa on 12 Sept 2012.

By going through this forum, I figured my husband should go through FLR(M) then immediately SET(M) for his settlement, thus I made a PEO appoint at Glasgow yesterday. However, I saw some posts using SET(O) for the dependant and I phoned the UKBA home office twice the day before, explaining our situation. both occasions, I was advised that my husband should use SET(O) as he is eligible for immediate settlement, since he has been as my dependant for 4 yrs, with a MSC qualification from UK university, and 'life in the uk' certificate. I was told we should use the right form (SET(O)) for the appointment.

However, when we handed in his SET(O) yesterday, the officer disagreed with the advice. Their arguments were:
1. Since I got my ILR through long residence, it overwrites my previous T2 visa and
2. He is a PBS depdent
3. my husband's current T2(dep) visa is invalid and
4. he should apply for FLR(M) and
5. should be under the NEW rule for a further 5 year probation.

They rebooked us for next Tuesday advising us using FLR(M) new rule application, or try our luck to do SET(O) by post, which they don't think we stand a chance.

We are really confused now, as when I phoned the UKBA HO twice last Thursday, I clearly stated I had my ILR on long residence, but my husband is current holding T2(DEP) visa. The officers through the phone were positive that he should use SET(O) as his current status is a dependant of previous WP holder and he has been here as my dependant > 2yrs.

A summary of my questions are;
1. Is my previous visa & my husband's current visa in the PBS category? I fairly clear I didn't used any point calculations when I made my application, as i was under the t2(transitional) from WP.
2. Is FLR(M) then SET(M) under the NEW rule correct for my husband?

Unable to book another PEO by Wednesday somewhere else, we are thinking of post his SET(O). Since his visa is expiring in a few days and we will appreciate some clarifications from this forum.

Many thanks

[geriatrix]

According to immigration rules your husband cannot apply for settlement before switching to FLR(M) leave.

Some posts that detail approval of applications not in accordance with immigration rules, that you refer to, represent instances (according to the learned members) where the applicant has been "lucky" due to ignorance of the caseworker about the meaning and interpretation of the recent changes. Unfortunately, your spouse wasn't lucky in that sense.

Your spouse should apply for FLR(M) before his current leave expires or before he travels outside the UK, whichever occurs first. Since he has been your dependant partner since 2008 and has been in the UK throughout, he may apply for settlement immediately after being granted FLR(M) leave.

He is not and will never be subject to the new immigration rules introduced on 09-Jul-12, but he is not subject to WP rules either since he is a PBS dependant (irrespective of whether you switched from WP to PBS under transitional arrangements or otherwise).

[casonyy]

My great big thank for your helpful reply.
1. I also read the UKBA website that he should NOT apply the new 09-July rule, however the glasgow PEO cw insisted that because I switched to long residence settlement, his current and previous leave no longer valid and do not count, therefore he should go under the new rule...Apart from the clearly stated UKBA website, are there any other evidence we can show to convince them?
2. I noticed that his current visa (as T2 DEP) valid from 16-11-2010 - 14-11-2010 (2 days less than 2 yrs) and prior to that was 23-09-2008-31/10/2010 (over 2 yrs). When did his qualifying period begin?
If FLR(M) then immediately SET(M) is his route, we are thinking of two PEO appointments but we need solid evidence to persuade the cws.
Thanks again for your help and time.

[geriatrix]

Suggest that you write to SettlementOpsPolicy@homeoffice.gsi.gov.uk and seek clarification directly whether:
a) time spent in the UK as a dependant partner can be included within the probationary residence period for settlement when the applicant has been in the UK as a dependant partner since 2008 but is applying for FLR(M) after 09-Jul-12.
b) the qualifying residential period for settlement is 2 years.
Do not forget to mention that you have been granted settlement under long residence and were a PBS migrant before applying for settlement.

It is unlikely that you will receive a response before 14-11, so consider only FLR(M) application in person for now.

Whatever response you receive from the above mentioned email, please post here - as this may help others looking for similar information.

[casonyy]

Thanks again for this. I have emailed to ask this early today and we hope can receive a responce on Monday. Will post the responce here.

[Mako]

Hi there
They took 2-3 working days to reply when I emailed them. Hope you get a speedy response and a prompt resolution to your case.
Regards

[geriatrix]

casonyy, any update regarding your case / response from UKBA?

[casonyy]

My heartfelt thank you to this forum as my husband's visa journey finally reached an end, by receiving his ILR card today. I am most grateful to sushdmehta and Mako, who have been so helpful to me.

For other people who are experiencing similar situation, here is the complete story line for your information:

11 Nov, I did email settlement box as advised and went through all relevant immigration rules from the UKBA website;

12 Nov, the following reply received from UKBA, which confirmed that my husband needs to 'switch' to FLRm but indicated he could apply ILR using SETm immediately after, as his previous dependant visas all count for the probation period.

13 Nov, we went for FLRm with a copy of the letter and a brief cover letter. After handed in the application, we were kept waiting at the window for a long time, which was because the cw (different from our previous appt) was thinking he should apply ILR straightaway!...anyway, it was later clarified within his team that my husband would still require a switch and he was granted FLR.

We booked a second appt for his settlement on the 23 Nov but had to cancel it the day before, as the BRP, delivered by DX Group, didn't arrive! Although all information is stored in the UKBA system, we were told he couldn't go for the appt without his new BRP.

3 Dec, we went for his ILR appt and another cw dealt our case, who, again, questioned us why not apply ILR sooner or with my application! Our case was approved within an hour and this time, the BRP arrived 2 days later, i.e. today, 5 dec!

[casonyy]

Here is the reply from UKBA:


Thank you for your e-mail and I am sorry you were given varied advice regarding the correct form you should use to make your application.

As a policy team, we are unable to provide you with individual guidance, however I can explain the correct policy to you:

Dependants of PBS migrants, who have been granted ILR on the basis of Long Residency, are no longer considered as PBS dependants and should ‘switch’ into the spouse of a settled person category using application form FLR(M).

Those who have been granted leave in the UK as a dependant before 9 July 2012, will be covered by the transitional arrangements and will therefore have a qualifying period of 2 years. This qualifying period can be a combination of leave as a PBS dependant and a spouse of a settled person.



Further information on this type of application, and the relevant immigration Rules, can be found on our website:

http://www.ukba.homeoffice.gov.uk/visas ... you-apply/

As advised, we then emailed them again to clarify the qualifying period and the following reply was received within a few hours after sending!

The relevant Rules regarding the qualifying period for settlement is:



287(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;



Therefore, applicants must have completed the 2 years qualifying period, with leave as a dependant of the person now present and settled, before applying for ILR themselves on form SET(M). This can include leave as a dependant of a pre-PBS category (e.g. Work Permit) as long as the partner was granted an extension as a PBS migrant before gaining ILR.

Hope these will be helpful to others!

[casonyy]

Some posts that detail approval of applications not in accordance with immigration rules, that you refer to, represent instances (according to the learned members) where the applicant has been "lucky" due to ignorance of the caseworker about the meaning and interpretation of the recent changes. Unfortunately, your spouse wasn't lucky in that sense.

Unfortunately we ain't the lucky ones, but the whole process to us was such a waste of money and time! Even the last HO officer remebered us (as a result of our frequent visits) and felt sorry for us that we had to spent time and money to follow this switching rule.

Here is a brief summary of lessons and experiences we learned from our case:

1. long residence's dependant DO have to switch into FLRm
2. However, his/her previous visas as a dependant can add up to the qualifying period
3. BRP is delivered by DX Group and should arrive within a couple of days but do watch your door v closely, they dont always ring the doorbell for attention!

[Mako]

Congratulations casonny! I'm sure you're glad your ordeal is finally over.

[shoumeshd]

you transfered ur hubby visa to flr-m.did u follow the new rule for that. i mean 18600 salary threshold.

[shoumeshd]

Hi Casony!when you applied Flm for your husband, did you show any income threshold?
was your husband required for any income of 18600? pls clarify me that.

[shoumeshd]

n short my visa......
2003 September-came to uk on student visa
2009-April-got tier 1 general visa
2012 May-got tier1 geneal extension.
2013 september qulaifying for ILR on the basis of 10 yrs long residency.

in short my wife's visa.....
2010 december came as tier1 (general) dependent
2012 May extended her visa as tier 1 dependent. visa is valid untill may 2014.
2012 December completed 2 yrs in this country as my dependent .

My question is
1. when i can apply for Her Ilr?
2.do i have to transfer her visa to Flr(m) first?
3.if so do i have to show 18600 thesholld for Flr(m)?
4. Do the 9th july new rules apply for her?

please guru/moderators or anyone who are in same position like me answer me.
i am getting differnt opinion from different sources and i am really confused.please help me !!!

[casonyy]

old rule, no income threshold.