ILR rules change July 2012

[balaach]

Hi All,

I arrived in the UK in 2008 on HSMP. My wife and son joined me as my/HSMP dependants in the same year.
We all got converted to Tier 1 (General) and dependants in 2010, valid until Feb 2013.

However I got posted in Middle East in 2010 and travelled in and out of the UK a lot. During this time my wife and son were living abroad (from early 2010 till Jul 2013). In Feb 2013, their leave expired while they were still abroad. I applied for their leave from abroad in Jun 2013 (again as my/Tier 1 Gen dependants) and all three of us returned to the UK in Jul 2013. They have been in the UK since except for a couple of short holiday related absences.

I got my ILR in 2013 and they are still on my Tier 1 (General) dependant visa.

I would like to know if:
A) My wife can apply for ILR now since she was granted visa as my dependant in 2008 and we have been living in the UK since Jul 2013 (2 years +), even though there was a break in their visa from Feb to Jun 2013. OR
B) Must we wait for her to complete 5 years as per the rules introduced on 9 Jul 2012.

I am not sure if section 3.1.5 in the transitional doc referenced below would adversely affect me.
https://www.gov.uk/government/uploads/s ... _final.pdf



Appreciate your help!

Cheers

[balaach]

Hi All,

I arrived in the UK in 2008 on HSMP. My wife and son joined me as my/HSMP dependants in the same year.
We all got converted to Tier 1 (General) and dependants in 2010, valid until Feb 2013.

However I got posted in Middle East in 2010 and travelled in and out of the UK a lot. During this time my wife and son were living abroad (from early 2010 till Jul 2013). In Feb 2013, their leave expired while they were still abroad. I applied for their leave from abroad in Jun 2013 (again as my/Tier 1 Gen dependants) and all three of us returned to the UK in Jul 2013. They have been in the UK since except for a couple of short holiday related absences.

I got my ILR in 2013 and they are still on my Tier 1 (General) dependant visa.

I would like to know if:
A) My wife can apply for ILR now since she was granted visa as my dependant in 2008 and we have been living in the UK since Jul 2013 (2 years +), even though there was a break in their visa from Feb to Jun 2013. OR
B) Must we wait for her to complete 5 years as per the rules introduced on 9 Jul 2012.

I am not sure if section 3.1.5 in the transitional doc referenced below would adversely affect me.
https://www.gov.uk/government/uploads/s ... _final.pdf

Please note section 4.3 b of the same document.

Appreciate your help!

Cheers

[vinny]

Tricky.

There is no requirement for her to switch to FLR(M) under Appendix FM. If she doesn't switch to FLR(M), then 3.1.5 is not relevant to her.

[balaach]

Thanks vinny.

Section 4.3(b) which allows 2 years qualifying seems favourable:

Ref: The doc I shared previously

b) If an applicant does not qualify for ILR at the same time as their partner gains ILR as
a relevant PBS migrant – application for further leave to remain as a PBS
dependant:
4.3.6. If an applicant was granted an initial period of leave to enter or remain as a PBS
dependant before 9 July 2012 but had not lived together in the UK with their partner
for at least the required 2 years at the date their partner applied for indefinite leave
to remain, then, provided their partner was granted indefinite leave to remain as a
relevant PBS migrant, the applicant can apply for further leave to remain under
paragraph 319C(b)(iii)(1).
4.3.7. Provided they meet the remaining requirements of paragraph 319C, they should be
granted a further period of leave to remain of 3 years under paragraph 319D(a)(ii).
4.3.8. Once they have completed the required 2-year period living together in the UK with
their partner, who gained indefinite leave to remain as a relevant PBS migrant, they
can apply for indefinite leave to remain under paragraph 319E(b)(i), (c)(i) and (d)(i).


Also section 4.4.1 (related to 5 years wait) reads:
An applicant who is granted leave to enter or remain in the UK as the partner of a
relevant PBS migrant and has not held leave as the partner of that person before 9
July 2012,....


True, it's tricky. Based on the above two references I am inclined towards that my wife is eligible to apply for ILR now. Your views?

[vinny]

It may depend on how favourably the caseworker is going to interpret the 'continuous leave' requirement in 319E.

[balaach]

Good spot!

This will mean waiting till 2018. Her leave expires Feb 2018 so I'll have to renew her leave in Jan 2018 and then apply for ILR in Jul 2018.

And I have 3 dependants in total now who will go through the same process. £££