ILR (10 year residence) for wife and daughter

[kb_leeds]

Dear All

I had submitted in April 2013 an application for indefinite leave to remain (ILR) under the 10 year long residence category. At the time of applying, my wife and my daughter (born in India) and I had all completed 10 years continuous and lawful residence in the UK.

However, I had, in error, submitted their application as my dependants in the long residence category. As a consequence, while I was granted ILR, my wife and daughter were refused the same as their application fell out of immigration rules. They were instead granted a 30 month limited leave to remain under Appendix FM, exceptions paragraph EX.1(a) and (b). The wording in the notice "the decision has been taken to grant you limited leave to remain for a period of 30 months, thus entering a 10 year route to settlement" has us confused.

Questions:
a) what does the sentence below mean?

"the decision has been taken to grant you limited leave to remain for a period of 30 months, thus entering a 10 year route to settlement"

b) have their stay so far (since 2002, which makes it 12 years) been reset? Do they have to complete 10 years all over again?
OR
c) is it a case of them resubmitting their applications using form SET(LR).

I had spoken to an immigration lawyer who said:

However, from your previous correspondence, I note that all of you have been in the UK in excess of 10 years. Although your family has been granted leave which does not enable them to apply for ILR in the next 10 years as stated their refusal notice. I believe it is possible for us to assist you to vary your wife’s and daughter’s visa for ILR on the basis of long residence in their own right despite having been passported to a new category of the immigration rule. The process can be slightly complex but I believe this will be achievable.

The lawyers have asked for a fee of £2000 to take up our application, which is rather steep for me.

Could the experts here advise on what my options are?

Regards
KB

[quantum1]

I know this sounds lika a tautology but If your wife and daughter qualify on their own merits, then they can apply for 10 years straight away because they qualify. Lawyer is trying to make it complicated so you pay him but its a straight forward case. The letter from the home office is irrelevant. It changes nothing and it confirms that they can apply for the 10 year route when they qualify. Which they do!

[kb_leeds]

Dear quantum1

Thanks so much for your response. Much appreciated!

I have come across some posts in this forum that state that your previous stay is "reset" (see this link:

http://www.immigrationboards.com/immigr ... t#p1100874 by CR001

And

http://www.immigrationboards.com/indefi ... t#p1102676

I understand these may be different cases, but what is this thing about your time being reset? Is that even possible. After all, you have lived continuously and lawfully. Just because you have now been moved from a dependant category to a new visa category are there specific provisions that nullify your previous stay?

Sorry I am repeating this question, but I am caught between a rock and a hard place. On paper what you say makes sense and that is what I thought so, but suddenly self-doubt has creeped in and I am pretty much like a deer stuck looking at oncoming headlights. Anyone who can throw light on this wording?

"the decision has been taken to grant you limited leave to remain for a period of 30 months, thus entering a 10 year route to settlement"

[Obie]

I believe UKBA is wrong and you should taken issue with that.

If the children qualify for ILR in their own right, then ILR should have been granted.

SET(LR) does not provide for dependents so i suspect it was Set (O) that you put.

If you used SET O, and all the people on the SET O have lived here for 10 years at the time of application, then ILR should have been issued.

Circumstances where it would not be issued is when only a primary applicant meets the requirement of 10 years lawful resident, but the family members don't.

This was however not your case.

[kb_leeds]

Dear Obie

Thanks. At the time, the form was SET(O), which we used. The wording in the form (at the time) was not clear to us. We naively assumed that since my wife and daughter had been dependents so far, we should submit their applications as dependents. My mistake. Hindsight is a great thing. Basically, we should have submitted three SET(O) applications.

Are there any qualified OISC advisers here who can provide a telephone consultation about our case?

Regards
KB

[Obie]

I can assist you with your application if you like.

What is your contact details, just in case UKBA wants to act funny.