Apply for ILR as I meet req of a different route? (married 5+ years)

[forumuser250220]

Hi all,

My question is basically:
Does being on one route (eg 10 year partner route) exclude you from applying for ILR based on the requirements of a different route (eg 5 year route)?

My situation:

I came to the UK and married ("5 year route" to settlement)

When I applied for ILR at the end of 5 years, my spouse had gone recently gone self employed and hadn't been trading long enough to be able to produce 1 piece of required evidence (a document you only get if you've been trading 12 months). As such they were "unable to take his earnings", and put me on a 10-year partner route.

More than a year has now passed, which means the document they wanted at the time, is now obviously available.

Even though I am now on the "10 year route", I have been married 6 years and meet all the criteria for ILR under the "5 year route". I have spoken to a few solicitors. Some have said I can reapply for ILR right now. Another said I cannot apply for ILR until I have completed the 10 year period (I've done 6 years already)

The government website says about eligibility:
If you’re on the 10-year route, you must have been living in the UK on that visa for 10 years.

Does this preclude me from applying right now? Can I be assessed against eligibility of the "5 year route" even though I am now labelled as on the "10 year route"? I was originally on the "5 year route".

Many thanks

[zimba]

No you cannot apply for ILR. The length of your relationship is irrelevant. You cannot combine the time spent under 5 year FLR(M) and 10 year FLR(FP) to get ILR. You need to spend the qualifying period continuously: either 5 years under FLR(M) or 10 years under FLR(FP) to be eligible for ILR under SET(M)

[lilboots]

No you cannot apply for ILR. The length of your relationship is irrelevant. You cannot combine the time spent under 5 year FLR(M) and 10 year FLR(FP) to get ILR. You need to spend the qualifying period continuously: either 5 years under FLR(M) or 10 years under FLR(FP) to be eligible for ILR under SET(M)

Hi Zimba,
From what I understand from the OP’s question, s(he) isn’t trying to combine FLR(M) (5 years) and FLR(FP) 10 years.
I think the question was , she was on FLR(M) 5 year spouse visa for 5 years. At the time she applied for ILR, she couldn’t meet the financial requirement at the time and instead of ILR, she was offered extension via the FLR (FP) route.
However, her circumstances has changed and she can NOW meet the financial requirement of the ILR via FLR(M) a year after a decision ( by HO) was taken to extend her leave via FLR(FP) 10 years.
Now question is, now that she has met the requirement of her original leave , FLR(M), to apply for ILR, can she do that as it was HO that offered her FLR(FP) when she didn’t meet the financial requirement a year earlier?

[CR001]

No you cannot apply for ILR. The length of your relationship is irrelevant. You cannot combine the time spent under 5 year FLR(M) and 10 year FLR(FP) to get ILR. You need to spend the qualifying period continuously: either 5 years under FLR(M) or 10 years under FLR(FP) to be eligible for ILR under SET(M)

Hi Zimba,
From what I understand from the OP’s question, s(he) isn’t trying to combine FLR(M) (5 years) and FLR(FP) 10 years.
I think the question was , she was on FLR(M) 5 year spouse visa for 5 years. At the time she applied for ILR, she couldn’t meet the financial requirement at the time and instead of ILR, she was offered extension via the FLR (FP) route.
However, her circumstances has changed and she can NOW meet the financial requirement of the ILR via FLR(M) a year after a decision ( by HO) was taken to extend her leave via FLR(FP) 10 years.
Now question is, now that she has met the requirement of her original leave , FLR(M), to apply for ILR, can she do that as it was HO that offered her FLR(FP) when she didn’t meet the financial requirement a year earlier?

Zimbas answered remains the same. Once granted the 10byear FLR fp route, you can't apply for ilr based on 5 years FLR m. FLR m and FLR fp are two different sets of rules and you can't combine the two for 5 years ilr.

[forumuser250220]

Can I get your opinions on the answer from an immigration lawyer? Because I paid and asked and they said the following:

There is no requirement that you must complete the 60 months immediately prior to making your ILR application. As you have already completed the qualifying period of 60 months in the UK with limited leave to remain as a partner (before your current grant of leave), you can rely on this period for the purposes of an ILR application.

If the reason that you did not meet the requirements for ILR have now been overcome, and you continue to meet all of the other eligibility requirements, you can make your ILR application at any time. You do not need to wait until you are required to extend your current visa, but can make the application now, despite having more than a year left on your visa.

Obviously I do not wait to pay good money, time and effort in making an ILR application if I am not applicable to make it anymore because I am now on a 10 year route and no longer on a 5 year route. How can I be absolutely certain of this criteria?

[CR001]

For ILR on SET(M), you need to meet the requirements under Appendix FM at the time of applying. You do not hold a visa under the relevant immigration rule for the 5 year route.

Note that as far as I understand, there is only one ILR route that can be applied for based on a previous qualifying period and it is ILR based on 10 years long residence form SET(LR) and this is clearly stated for this particular route only.

Ask your 'lawyer' where in the immigration rules does it state you can rely on a previous 5 year period in the past to qualify for ILR.

You can read the immigration rules yourself to understand the difference between the 5 year and 10 year route.

https://www.gov.uk/guidance/immigration ... ly-members

Section E-ILRP: Eligibility for indefinite leave to remain as a partner
E-ILRP.1.1. To meet the eligibility requirements for indefinite leave to remain as a partner all of the requirements of paragraphs E-ILRP.1.2. to 1.6. must be met.

E-ILRP.1.2. The applicant must be in the UK with valid leave to remain as a partner under this Appendix (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded).

E-ILRP.1.3. (1) Subject to sub-paragraph (2), the applicant must, at the date of application, have completed a continuous period of either:

(a) at least 60 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1.; or
(iii) a combination of (i) and (ii);
or
(b) at least 120 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1. or D-ECP.1.2.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1. or D-LTRP.1.2.; or
(iii) a combination of (i) and (ii).
(1A) In respect of an application falling within sub-paragraph (1)(a) above, the applicant must meet all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner (except that paragraph E-LTRP.1.2. cannot be met on the basis set out in sub-paragraph (c) of that paragraph, and in applying paragraph E-LTRP.3.1.(b)(ii) delete the words “2.5 times”).
(1B) In respect of an application falling within sub-paragraph (1)(b) above:
(a) the applicant must meet all of the requirements of paragraphs E-LTRP.1.2.-1.12. (except that paragraph E-LTRP.1.2. cannot be met on the basis set out in sub-paragraph (c) of that paragraph) and E-LTRP.2.1. - 2.2.; and
(b) paragraph EX.1. must apply.
(2) In calculating periods of leave for the purposes of sub-paragraph (1) above, any period of leave to enter or limited leave to remain as a fiancé(e) or proposed civil partner will be excluded.

E-ILRP.1.4. In calculating the periods under paragraph E-ILRP.1.3. only the periods when the applicant’s partner is the same person as the applicant’s partner for the previous period of limited leave shall be taken into account.

E-ILRP.1.5. In calculating the periods under paragraph E-ILRP.1.3. the words “in the UK” in that paragraph shall not apply to any period(s) to which the evidence in paragraph 26A of Appendix FM-SE applies.

E-ILRP.1.5A. In calculating the periods under paragraph E-ILRP.1.3., any current period of overstaying will be disregarded where paragraph 39E of these Rules applies. Any previous period of overstaying between periods of leave will also be disregarded where: the further application was made before 24 November 2016 and within 28 days of the expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

E-ILRP.1.6. The applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with the requirements of Appendix KoLL of these Rules.

[zimba]

Hi Zimba,
From what I understand from the OP’s question, s(he) isn’t trying to combine FLR(M) (5 years) and FLR(FP) 10 years.
I think the question was , she was on FLR(M) 5 year spouse visa for 5 years. At the time she applied for ILR, she couldn’t meet the financial requirement at the time and instead of ILR, she was offered extension via the FLR (FP) route.
However, her circumstances has changed and she can NOW meet the financial requirement of the ILR via FLR(M) a year after a decision ( by HO) was taken to extend her leave via FLR(FP) 10 years.
Now question is, now that she has met the requirement of her original leave , FLR(M), to apply for ILR, can she do that as it was HO that offered her FLR(FP) when she didn’t meet the financial requirement a year earlier?

That is not how things work. Your current leave is also an important factor in whether you can apply for ILR. If you switch to other route, you cannot refer back to the time spent under your previous leave even if you completed the qualifying period previously before the switch unless allowed under the rules. Under the Appendix FM, you need 5 continuous years under FLR(M) and you still need to be under FLR(M)

Can I get your opinions on the answer from an immigration lawyer? Because I paid and asked and they said the following:

There is no requirement that you must complete the 60 months immediately prior to making your ILR application. As you have already completed the qualifying period of 60 months in the UK with limited leave to remain as a partner (before your current grant of leave), you can rely on this period for the purposes of an ILR application.

If the reason that you did not meet the requirements for ILR have now been overcome, and you continue to meet all of the other eligibility requirements, you can make your ILR application at any time. You do not need to wait until you are required to extend your current visa, but can make the application now, despite having more than a year left on your visa.

Obviously I do not wait to pay good money, time and effort in making an ILR application if I am not applicable to make it anymore because I am now on a 10 year route and no longer on a 5 year route. How can I be absolutely certain of this criteria?

The lawyer's advice is incorrect as it contradict Appendix FM of the rules. There are a lot of refusals reported on the forum. I am pretty confident on this one.

[forumuser250220]

Hi all,

In case it helps anyone in a similar predicament, I clarified with the immigration barrister (central london) regarding the points you (kindly) brought up. The response I got was:

The relevant legal provision is at paragraph E-ILRP.1.3. of Appendix FM to the Immigration Rules. This requires the applicant to have completed a continuous period of 60 months in the UK with entry clearance/ leave to remain as a partner on the 5 year route at the date of application. You are able to rely on the 60 month period before you were placed on the 10-year route. The route you are currently on does not matter. The advice I have given to you is also confirmed in the Home Office's published guidance to case-workers.

Keen to hear your thoughts if you'd like to weigh in. But it sounds to me like it's definitely worth reapplying.

[zimba]

E-ILRP.1.3 allows combination of visa issued under D-ECP 1.1 (which is the family visa entry clearance under 5 year route) and D-LTRP.1.1 (which is FLR(M) under 5 years route). The barrister is saying that your current leave is irrelevant as long as you already spent continuous 60 months but I am not sure that interpretation is correct. If you pay attention, you see the phrase 'continuous period' at the date of application so if you switch to D-LTRP.1.2, then you do NOT have a continuous period as per E-ILRP.1.3 requirements at the date of the application. This is because for ILR, the caseworker considers such period from the date of application and backwards.

E-ILRP.1.3. (1) Subject to sub-paragraph (2), the applicant must, at the date of application, have completed a continuous period of either:

(a) at least 60 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1.; or
(iii) a combination of (i) and (ii);

Here is what section D-LTRP.1.1 says:

D-LTRP.1.1. If the applicant meets the requirements in paragraph R-LTRP.1.1.(a) to (c) for limited leave to remain as a partner the applicant will be granted limited leave to remain for a period not exceeding 30 months, and subject to a condition of no recourse to public funds, and they will be eligible to apply for settlement after a continuous period of at least 60 months with such leave or in the UK with leave to enter granted on the basis of entry clearance granted under paragraph D-ECP.1.1. (excluding in all cases any period of leave to enter or limited leave to remain as a fiancé(e) or proposed civil partner); or, if paragraph E-LTRP.1.11. applies, the applicant will be granted limited leave for a period not exceeding 6 months and subject to a condition of no recourse to public funds and a prohibition on employment.

[forumuser250220]

Zimba, thank you very much for putting this point across so succinctly.

In this case of contention, do you think I can get final clarification of how the application would be treated, if I call the home office? I see they have an ILR telephone number.

They say they can't give advice on individual situations, but this is a question to clarify a requirement.

I would plan to ask them:
If someone completes 5 years as partner, and is switched to a 10 year partner route due to a document being unavailable at the time of application, can the person rely on the previously completed 5 year period to reapply for ILR? (And I could tell 'em an immigration barrister said this is possible, just as I would do in 'supporting notes' for the application, in case it made any difference)

Many thanks

[zimba]

There is no immigration helpline. Advice given is by third parties who often give incorrect advice. Don't rely on telephone conversations nor correspondence with the Home Office.

See advice given to changes of category after SET(M) rejection: indefinite-leave-to-remain/set-m-refuse ... l#p1868662

It is up to you to risk a refusal and loss of fees if you choose to go ahead with SET(M)

[forumuser250220]

Zimba, thank you for all your replies on this matter. Have a good week