Is SET(M) the right form to use?

[AndrewNi]

My wife needs to apply for ILR shortly, but we are now very puzzled on which form should we use for the application.

She initially came to the country as a Tier 1 General dependant in 2012, and extended her visa using FLR(M) the same year after I got my ILR as Tier 1 General migrant. She has now spent 2 years with me, and we natually thought she should use SET(M) for her ILR application.

However, we noticed the following paragraph in the SET(M) guidance notes: "If you are applying as partner of a person who last had leave as a Work Permit Holder, a Relevant Points Based System Migrant, on the basis of UK Ancestry or in any other temporary work related category and they now have indefinite leave to remain or have been granted naturalisation this is not the correct form to use". It didn't point out which form should we use either.

Please could you help? Should we use SET(M), or if not, what is the correct form? Thanks.

[CR001]

If she has FLR(M) then Set(M) is the correct form.

[Amber]

When was your spouse granted PBS dep leave initially in 2012?

[AndrewNi]

My wife's PBS Dependant was granted after 9 July 2012, but the application was made on 3 July 2012, before the rule change.

Am I right that Rule A280(c) should be valid for our case, and thus we can rely on Rule 287(a)(i)(d) for the ILR application?

I was quite sure SET(M) is the right form until I saw the abovementioned paragraph in the guidance note. But after a second thought, I think CR001 is right, and the guidance note is probably referring to those applied under Rule 319E (who never applied FLR(M)), as it make sense for them to use SET(O) instead of SET(M).

Please could you confirm? Thanks

[Amber]

No, I'm afraid that if a PBS dep leave was first granted leave after 9 July 2012, then it's a 5 year route to settlement.

As:

An applicant who is granted leave to enter or remain in the United Kingdom as a
partner of a relevant points based system migrant after 9 July 2012, must provide
evidence that they have been living together in the United Kingdom in a marriage
or civil partnership, or in a relationship similar to marriage or a civil partnership for
a period of 5 years under paragraph 319E (b) (ii), (c) (ii), (d) (ii).

I would assume your spouse's FLR(M) leave was granted for 2.5 years and you had to meet the Financial requirement?

As:

Applicants who were granted leave to enter or remain as a PBS dependant
after 9 July 2012, whose PBS partner gained indefinite leave to remain on the
basis of long residence will be required to apply to extend their leave as a
partner under Appendix FM.

Although, 3.4 relates to Long Residence I think the same is applicable.

It is worth noting that this is different had the dep applied originally as the spouse of a settled/British person, in such case, an application made (not granted) before 9 July 2012 would allow that person to be subject to the provisions of Part 8 of the immigration rules and not Appendix FM. When your wife does qualify for settlement, it will indeed be on SET(M).

[AndrewNi]

Hi Amber,

Thanks for your reply and this becomes really worrying now if she needs to wait for 5 years for ILR. I fully appreciate what you’ve quoted in the Immigration Directorate Instructions, but what is your opinion on my logic below? Does it stand any ground at all?

The key question is whether an application under PBS Dependant, made prior to 9 July 2012 but granted after 9 July 2012, allows the applicant the transitional provision set out at Paragraph A280(c) of Part 8 of Immigration rules.

Paragraph A280(c) of Part 8 of Immigration rules reads that “the provision of Paragraph 281-289of Part 8 continue to apply on or after 9 July 2012, (i) to persons who have made an application before 9 July 2012 under Part 8 which was not decided as at 9 July 2012; and (ii) to applications made by persons in the UK who have been granted entry clearance or limited leave to enter or remain under Part 8 before 9 July 2012 and where this is a requirement of Part 8, this leave to enter or limited leave to remain is extant.”

As such, the question becomes whether a PBS Dependant application is considered as an application under Part 8 of the Immigration Rules. I think it should be, because Paragraph 319 was used for the initial PBS Dependant application, which sits under Part 8 of the Immigration Rules. (What is your view on this please?)

If this stands, then should my wife be allowed to apply under Paragraph 287(a)(i)(d) of Part 8 of Immigration rules for her ILR, for which only 2 years are needed?

Thanks in advance

[Amber]

Was your spouse given 2 or 2.5 years leave under FLR(M) and did you have to meet a financial requirement?

Also look at the wording

(c) The following provisions of Part 8 continue to apply on or after 9 July 2012, and are not subject to any additional requirement listed in

(b) above:

(i) to persons who have made an application before 9 July 2012 under Part 8 which was not decided as at 9 July 2012; and

(ii) to applications made by persons in the UK who have been granted entry clearance or limited leave to enter or remain under Part 8 before 9 July 2012 and where this is a requirement of Part 8, this leave to enter or limited leave to remain is extant:

281-289
289A-289C
290-295
295A-295O
297-316F
317-319
319L-319U

319V-319Y

[AndrewNi]

She was given 2.5 years leave under FLR(M), and the letter said the decision was made under Appendix FM. So if they made that call right at that time, it would be 5 years I guess.

Now, I am thinking of writing to them and complain that they had applied the incorrect rule for that application, based on the reasoning I said above. Is there any harm to do that? Any chance for success?

To the wording bit you mentioned, I think my wife satisfied Paragraph A280(c)(i) that her application was made before 9 July 2012 and not devided as at 9 July 2012. It reads only one of points are needed to satisfy A280(c), unless I misunderstand the wording?

I guess point (i) cover those applied but not yet decided before 9 July 2012, and point (ii) cover those both applied and decided before 9 July 2012. The net effect is what is said in Transitional instruction 2.1 for "Applicants granted or who applied for leave under the Rules before 9 July 2012".

What's your thought my friend?

[Amber]

I'll think they put you in c(ii) in that you had to be granted leave before July 2012 thus a 5 year route to settlement. Vinny, what's your take?

[AndrewNi]

Yes, they must have chosen point (ii), as the FLRM was granted under Appendix FM.

But I do not think it is appropriate, as this would mean even one applied for spouse visa (not pbs dep)before 9 july and granted after 9 july, she will need 5 years to get ilr if she needs to extend FLRM before getting ILR?

[Amber]

No as they'd fall under C(i).

[AndrewNi]

No as they'd fall under C(i).

Sorry to be stubborn, but if they fall under C(i), why my spouse needs to be under C(ii)? Both of them applied for family routes before 9 july, and both were granted after 9 july. Both have since applied for one extension.