Settle as partner of work visa-holder who has settled in UK

[vivek2sky]

Hello All,
My wife applied for a UK entry visa for family settlement: form VAF4A in 2013. This is post 9 July 2012 change https://www.gov.uk/government/publicati ... form-vaf4a

She was initially issued a 33 month visa. I am confused now if she has to apply for an extension on FLR(M) or would she qualify for settlement on SET(O)? Does the 5 year rule apply for family of people settled on HSMP?

My reason for doubt is when I use the Apply to settle link https://www.gov.uk/settle-in-the-uk
Question 1: What's your situation? - You're the family member or partner of someone who has settled in the UK
Question 2: How did they settle? - On a work visa
Question 3: 'What type of work visa did they settle with?'
i) If my choice is any other work visa, there is no eligibility criteria of stay duration in UK. The categories include a person who’s already settled in the UK and they settled with the last permission held:
UK Ancestry
Work Permit
Highly Skilled Migrant Programme
etc...

However if I change my answer to Tier 1,2 or 5 only then it clearly states:
You must have been given a partner visa and been living with your partner in the UK for at least:
2 years if you applied for that visa before 9 July 2012
5 years if you applied for that visa on or after 9 July 2012

I have played around with all options and the eligibility of 5 years is not mentioned at all if settled on work permit/HSMP route. On all other cases it clearly states the 5 year clause.

Also on the FLR(M) guidance it states you must not use this form to make an application for an extension of stay, as the partner of a person granted indefinite leave to remain in a work route, if you are currently in the UK as their dependant.
categories:https://www.gov.uk/government/uploads/s ... _11-15.pdf

I applied for my indefinite leave to remain in 2011 after HSMP. Is my wife eligible to apply for settlement even after having first arrived in UK after 9 July 2012?

Kind regards
Vivek

[CR001]

No, she does not qualify for ILR if she only came to the UK in 2013 as your dependent.

She needs 5 years on the spouse visa before she will be eligible for ILR based on SET(M). Set(O) is not relevant to her visa category as she is not in the UK on a PBS Dep visa.

As she is post July 2012, she will have to apply for an extension on FLR(M) and meet all the same requirements again. She will also have to pay the £500 immigration health surcharge.

When does her current visa expire?

[vivek2sky]

Many thanks for your quick response. I have always believed the 5 year rule is what applies for wife's settlement. However reading through all options on the gov.uk website is what is confusing me. More so the settle in UK link.
Why if it is settlement through 'Tier 1,2 or 5' ONLY does it state:
Eligibility
You must have been given a partner visa and been living with your partner in the UK for at least:
2 years if you applied for that visa before 9 July 2012
5 years if you applied for that visa on or after 9 July 2012

However if it is 'any other work visa' it doesn't state anything.

I did call the visa & immigration office today morning and they were equally confused too and didn't give me an answer, asking me to call back again later after they have discussed.

[CR001]

If she had applied for her spouse visa before 9 July 2012, she would be on the two year route. The same rule applies to Tier 1, 2 dependents and spouse settlement visas. There were transitional provisions in place for PBS dependents who switched to spouse settlement visa but these were removed in April 2014.

Was your wife a PBS Dep before she applied for a spouse settlement visa?

[vivek2sky]

No she was not on a PBS dependent visa. Her first visa to the UK was on the UK visa for family settlement: form VAF4A. Applied in May 2013 and arrived in UK in August 2013.
Her current visa expires in May 2016.

[CR001]

Then ignore anything that talks about Tier 1 & Tier 2 dependents. It has no relevance to your spouse as she has never held a visa in that category.

5 years on current visa. She needs an extension on FLR(M).