As T2d do I have to apply for ILR(M) after my spouse got ILR

[jl00080]

Hi, I have searched the board and have not seen similar cases thus I put my questions here.

Need some advice on my case.

1. I came to UK since 2008

2. I became my wife's t2 dependent since March-2013. My current t2 dependent visa is valid until April-2016.

3. My wife just got ILR settlement through 10 years long residence route.


Q: Do I have to apply for ILR(M) immediately? Or I just need to apply before April-2016.

I am planning to apply ILR through 10 years long residence in 2018 (just 3 years away), and a ILR(M)'s valid period is just 2.5 years. That means If I apply ILR(M) now, I need to apply ILR(M) twice, which is a big waste to me (application fees + NHS fees).

[vinny]

If you are not travelling, then I think you may wait.

[jl00080]

Thanks vinny, great help

[Obie]

If you are not travelling, then I think you may wait.

OP may face curtailment , I hope you are aware of that?

Staying on visa to which he is not entitled may create a problem also.

[vinny]

I am acutely aware of the curtailment possibility. However, on what grounds?

323(vi) is not applicable.

Note that if 319D(b) is still satisfied, then 323(ii) is also not applicable.

Even if he was wrongly (in my opinion) curtailed, then he would have time to switch to FLR(M).

I agree that he should not travel before switching.

[Obie]

I see 319D (a)(b) as relating to the issue of Entry clearance and the duration of leave and the conditions for the grant of leave.

319D (a) will not continue to apply to the OP'S husband due to the fact that he switched to ILR on a path other than PBS migrant, therefore I fail to see why 323 (ii) will not apply.

[vinny]

As far as I can see,
319D(a) specifies the period of leave that may be granted, if the applicant chooses to apply.
319D(b) specifies the conditions of leave that is being granted.

So, I think that the OP must only continue to satisfy 319D(b).

[Obie]

Is it your position that the 319 (D) (a) will continue to apply.

That provision appears to provide the duration of leave depending on whether the PBS migrant Has ILR under PBS or British Citizenship following ILR under PBS , or has leave to remain as a PBS migrant. None of those apply to the case of a PBS migrant who changed to long residence provision.

[vinny]

No. It is not my position that 319D(a) will continue to apply. I think that it's sufficient that the OP continues to satisfy 319D(b).

319D(b) specified the conditions of his leave that was previously granted.

[Obie]

I am sure you appreciate that 319D (B) was issued in line with 319D (A) . Was it not ?
I stand to be corrected, but I don't see 319D (a) and (b) as disjunctive or not mutually exclusive.

I think 323 (ii), will be engaged , if at anytime 319D (a) cease to have effect.

[vinny]

319D(a) also ceases to be true, when the PBS holder is granted ILR alone, as a Relevant Points Based System Migrant, and the PBS dependant did not choose to apply for an extension. The PBS dependant's period of leave is unlikely to be exactly 3 years. Some may even be longer.

You may well be right. Some caseworker may choose to curtail his leave. However, it's not automatic. Written notice must be given under 4(1).

[Obie]

319D(a) also ceases to be true, when the PBS holder is granted ILR alone, as a Relevant Points Based System Migrant, and the PBS dependant did not choose to apply for an extension. The PBS dependant's period of leave is unlikely to be exactly 3 years. Some may even be longer.

You may well be right. Some caseworker may choose to curtail his leave. However, it's not automatic. Written notice must be given under 4(1).

I accept that fully.

On a good day for me,,a judge might accept my interpretation , and on a bad day for me, yours could be accepted.

Law is funny.

[vinny]

I am sure you appreciate that 319D (B) was issued in line with 319D (A) . Was it not ?
I stand to be corrected, but I don't see 319D (a) and (b) as disjunctive or not mutually exclusive.

I think 323 (ii), will be engaged , if at anytime 319D (a) cease to have effect.

(ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted; or

I believe that 319C specifies the requirements for a PBS partner's extension.

I submit that the natural meaning of 319D is that: 
319D(a) is intended for caseworkers. It determines the period of leave that caseworkers will grant when a successful application under 319C is made.
319D(b) is intended for applicants. It determines the conditions or requirements of the Rules that applicants must comply with, during the period of the leave being granted in 319D(a).

I think that 319D(a) and 319D(b) are disjunctive in the sense that they are intended for different purposes. 319D(a) is only intended for caseworkers to calculate the period of leave that they are about to grant.

If the PBS partner is not applying for an extension, then there's no requirement for a caseworker to assign an appropriate period of leave under 319D(a). Then why would a caseworker even consider 319D(a)? It doesn't make sense, especially when the PBS partner is able to extend under 319C.

Failure of 319C implies that the applicant fails to satisfy the requirements for an extension as a PBS partner. It does not necessarily imply that the PBS partner failed the conditions of leave as specified under 319D(b) that may have been granted previously. For example, the PBS Partner is not expected to maintain funds, as required under 319C(g), for the entire duration of leave as specified in 319D(a). It's based on the date of the application.

However, if the PBS partner failed 319D(b), then 319C(j) may also fail and 323(ii) may also be applicable.

Additionally, from

Purpose

This route is for the spouse, civil partner, unmarried or same-sex partner of a Relevant Points Based System Migrant (Partner of a Relevant Points Based System Migrant). Paragraphs 277 to 280 of these Rules apply to spouses or civil partners of Relevant Points Based System Migrant; paragraph 277 of these Rules applies to civil partners of Relevant Points Based System Migrant; and paragraph 295AA of these Rules applies to unmarried and same-sex partners of Relevant Points Based System Migrant.

Where:

Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 18 on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted. In these rules the term “sponsor” includes “partner” as defined in GEN 1.2 of Appendix FM.

Where:

For the purposes of this Appendix “partner” means-

(i) the applicant’s spouse;
(ii) the applicant’s civil partner;
(iii) the applicant’s fiancé(e) or proposed civil partner; or
(iv) a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application, unless a different meaning of partner applies elsewhere in this Appendix.

If the PBS partner ceases to satisfy 319A, then 323(ii) may also be applicable.

In summary, for the PBS partner,
if the PBS partner ceases to satisfy 319A, then 323(ii) may be applicable, or
if the PBS partner failed 319D(b), then 323(ii) may be applicable.

If there were other grounds that make 323(ii) applicable for the PBS partner, then both 319A and 319D(b) would be redundant.
But as 319A and 319D(b) exist, then they are not redundant.
Therefore, there are no other grounds that make 323(ii) applicable for the PBS partner.

Hence, 323(ii) is applicable only if the PBS partner fails 319D(b) or the PBS partner ceases to satisfy 319A.

Hence, from the natural meaning of the rules, it seems that:
323(ii) may be applicable iff the PBS Partner fails 319D(b) or the PBS Partner ceases to satisfy 319A.

An example of curtailment under 323(ii) is given in the case of a spouse:

Examples of where a migrant no longer meets the requirements

A migrant was granted leave to remain as a spouse of a settled person. During the period of leave, the Home Office is notified that the marriage has ended and they are now divorced. The migrant no longer satisfies the requirement of the rules they were granted under and therefore you must consider curtailment.

Another example of curtailment is given on page 107, when the sponsor dies.

Analogously, the PBS Partner ceases to satisfy 319A when the relationship between Partners ends, for example, due to divorce or death.

There appears to be no examples in their Instructions (pages 6, 27, 28, 36, 70, 84, 150, 151, 165, 167, etc.) to suggest that the PBS Migrant being granted further or indefinite leave to remain as a PBS Migrant implies that the curtailment of PBS partner's leave under 323(ii) is appropriate.

Moreover, the rules and caseworkers' instructions gives examples of other situations where a caseworker may consider curtailing a partner's leave.

This may be analogous to:

You must not curtail the leave of domestic workers who entered before 6 April 2012 when they change employers, if they continue to meet the Immigration Rules.

If a PBS migrant’s sponsor has had their licence revoked, you must not curtail their leave using the reason that they no longer meet the requirements of the rules under paragraph 323(ii). This would be incorrect because it is not a condition of the migrant’s grant of leave that their sponsor keeps their licence throughout the period of that grant of leave. In this situation you must curtail leave under paragraph 323A(b)(i) of the rules.

Moreover,

As the general grounds for curtailment are discretionary you must not automatically curtail a migrant’s leave for this reason. It may be appropriate to use discretion.

In cases where the reasons for curtailment are discretionary, you must not automatically curtail a migrant’s leave if there are reasons that suggest it may not be appropriate to do so.

I think than an older IDI made sense:

"21. Failure to comply with conditions
Although the provision to curtail exists where a person fails to observe the conditions of leave to enter or remain, it will be more usual to proceed direct to administrative removal for breach of conditions … Curtailment should therefore only be considered where the person's actions are not so serious as to merit enforcement action, but where it would be inappropriate to let him remain for the duration of his leave."

Even if the curtailment under 323(ii) is irrationally justified, contrary to opposing advice, then I think that it's inappropriate for caseworkers to curtail the PBS partner's leave when it only forces the PBS partner to prematurely apply for an extension in the same category.

However, if the PBS Migrant is granted granted indefinite leave to remain via Long residence then the PBS Migrant ceases to satisfy 319A. Then the PBS partner may also cease to satisfy 319A. Although leave to remain is valid until expiry, the PBS partner cannot extend in the same category and should switch to Appendix FM. So, there may be a slight danger of curtailment here.