SET (o) or SET (m) - switching from Tier 1 (general)

[bra123]

I am a British citizen but my wife is currently on a Tier 1 (General) visa on her own right (not as a dependent).

She has now been living in the UK for 5 years and would, in theory qualify for ILR. However, she travels a lot on both work and personal capacities. Even after excluding the days spent out of the country on work she will end up with 240 days out of the country in the 5 years.

She has never taken unpaid leave, and the longest time spent out of the country was 22 days – we do however do many short trips out of the UK during bank holidays and weekends that add up to more than 180 days.

My first question is: is it worthwhile trying for the ILR under SET(o) if she is above 180 days (after excluding work travel, and with no other exclusions to claim)? Would there be any flexibility considering she is married to a UK citizen?

My second question is: I see that the time spent outside of the UK under the spouse settlement rules is 270 days in 3 year. Could my wife apply under SET(m) directly considering that I am a British citizen and that she has been in the UK for 5 years?

If not, would it be possible to do a 2 stage process: Tier 1 (General) > FLR (M) > SET (m) ? Could she do each step immediately after the other or would she need to wait for 2 year between FLR (M) and SET (M) ?

We are in a real dilemma here, we know that considering our normal travel she will never be below 180 days in 5 years so if we need to switch visas, we would prefer to do it sooner rather than later.

The rules are also mind boggling sometimes, I have found reference to time spent as a dependent spouse of a Tier 1 visa holder being counted towards SET (M) requirements but there is no mention to Tier 1 visa holders on their own right being able to offset the time.

Any guidance would be deeply appreciated.

[Greenie]

The rules are also mind boggling sometimes, I have found reference to time spent as a dependent spouse of a Tier 1 visa holder being counted towards SET (M) requirements but there is no mention to Tier 1 visa holders on their own right being able to offset the time.

Any guidance would be deeply appreciated.

there is no mention because time spent as a tier 1 general migrant can't be counted towards the probationary period as the spouse of a British citizen. If your wife were to switch on FLR(M), she would need to spend 5 years in this category (two lots of 2.5 years) in order to qualify for ILR on SET(M).

[bra123]

I feared that answer. So if she converts from Tier 1 (general) to FLR (M) the time count starts again from zero....

I was told otherwise by a lawyer in the end of 2011, would this be a change introduced by the new rules in July 2012?

[vinny]

Yes.

[bra123]

Many thanks! This is unfortunate.

Do you have any views on if it is worthwhile trying for the SET (o) even being above 180 days or if it would be a waste of money?

[vinny]

Did you count only whole days as being absent?

During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months. The absences must be for a reason that relates to the purpose of your leave in the UK, or for a serious compelling reason (such as a serious illness). Your sponsor must confirm the reason for the absence if it was related to your work. You must confirm the reason if it was for a serious or compelling reason.

See also Indefinite leave to remain - calculating continuous period in UK and Chapter 6A - Settlement.

FAQs

[bra123]

yes, only whole days.

[anniecc]

Just checking that you're aware that the continuous residence requirement is for no more than 180 days absence in any one year, not 180 days total over the 5 year period?

[bra123]

To be clear, my wife did not have over 180 days in any single year.

However, while it is hard to find official information on it, it seems by that UKBA requires also a total of less than 180 days out of the country in the whole qualifying period of 5 years. Am I wrong in having this understanding?

[anniecc]

Yes, you're wrong in your understanding; the rules changed a few months ago:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

p.77 of the above reads:

"The Rules are being amended to clarify the absences that are permitted from the UK during the continuous period of lawful residence required for indefinite leave to remain in all these categories. Up to a maximum of 180 days in any of the 12 calendar month periods preceding the date of the application for indefinite leave to remain may be spent outside the UK, provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence."

Under the old rules you could have no more than 180 days absence over 5 years, but the calculation was complicated e.g. absences due to employment and associated annual leave were excluded. Now it's 180 days per year but you have to include all your absences, including the work related ones.

If your wife didn't exceed 180 days in any 12 month period she should be ok. The 12 month periods are counted backwards from her application date.

[bra123]

Thanks so much !

That is great information! Considering this criteria I think all will be fine and my wife will be able to get the ILR.