ILR Query - Wife on her own Tier1 - Please help

[Tier1_Bristol]

Hello,

Can you please help me with the confusion?

I looked into various posts and couldn't come to a conclusion.


My details:

Oct 2005 to July 2007 Entered UK in WP
Aug 2007 to Till date - HSMP and then Tier 1 extension

I would be eligible for ILR on Sept 1st Week (28 days earlier before 5 years completion)

My Wife's details:

Dec 2005 to March 2009 - 3 Years and 4 months - as WP Dependent and HSMP Dependent
March 2009 to till date - On her own Tier 1 visa


Now,

(1) When I apply for ILR in September 2010, can I include my wife as well for ILR?
She was on my dependent visa and lived for more than 2 years.

(2) If yes for above, Should I really change her visa back to Tier 1 dependent?

Is there a requirement that states that the applicant for Dependent ILR should be on a dependent Visa at the time of application?

(3) If I shall apply for her Tier 1 dependent, can we do it in-country? (I am asking this as there were references in most of the forum threads that one should apply for dependent from home-country)



Experts, can you please guide me on this?


Cheers
Tier1_Bristol

[Markie]

Hello,

Can you please help me with the confusion?


(1) When I apply for ILR in September 2010, can I include my wife as well for ILR? NO as she has her own T1 visa...her clock was reset when she shifted to T1 She was on my dependent visa and lived for more than 2 years.

(2) If yes for above, Should I really change her visa back to Tier 1 dependent?

Is there a requirement that states that the applicant for Dependent ILR should be on a dependent Visa at the time of application? YES

(3) If I shall apply for her Tier 1 dependent, can we do it in-country? (I am asking this as there were references in most of the forum threads that one should apply for dependent from home-country)

I believe so...T1 to T1 dependant not allowed. but once you are granted with ILR you can apply for them using FLR (M). I am not exactly sure about the details...


Experts, can you please guide me on this?


Cheers
Tier1_Bristol

[Tier1_Bristol]

Thanks Markie.

I think there is bit of a confusion over here. I think the requirement for Dependent ILR is that he/she should be spouse of the main applicant and lived here for 2 Years. I dont remember seeing anywhere saying that the dependent applicant MUST BE on DEPENDENT VISA for 2 Years.

Also is there any explicit references that the applicant must be on a DEPENDENT VISA when applying for settlement (I am sure I missed seeing this point somewhere)

Can somebody please help me here?

I have given some references here:

1.From HO website - Choosing the right form:
'You told us that you are the husband, wife, civil partner or other partner of a British citizen or person settled here. If you have lived here for at least 2 years, you can apply using form SET(M).'

2.From Guidance for Set(M) :
Form SET(M) must be used if you are applying for indefinite leave to remain in one of the following categories:
- spouse or civil partner of a person present and settled in the UK

If you have not yet been given leave to enter or remain as the partner of a person present and settled in the UK, you must use form FLR(M).
My wife was given already FLR and been my dependent for more than 3 years now.


2 QUALIFYING FOR INDEFINITE LEAVE TO REMAIN
To qualify for indefinite leave to remain in one of the categories
for which you must use form SET(M), you must satisfy the requirements set out in Part 8 of the Immigration Rules, which are on our website.
One of the requirements is that you have to complete 2 years’ leave to enter or remain as the partner of the person named in your application.
Please note that it says your spouse should have completed 2 years on a dependent visa but no mention that it should be recent. In my case , my spouse completed more than 3 years on dependent visa though not recent
That period runs from
- the date on which you entered the UK with a visa in the relevant category; or, if you did not enter the UK with such a visa, from
- the date on which you were first granted leave to remain in the UK in the relevant category
If you were granted leave to enter or remain as an unmarried
or same-sex partner and are now applying for indefinite leave to remain as the spouse or civil partner of the same person, the 2-year period to be completed started when you either entered the UK or were granted leave to remain as an unmarried or same-sex partner.

3.From the immigration Rules (Part 8 )

Spouses or civil partners of persons present and settled in the United Kingdom or being admitted on the same occasion for settlement
Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
__(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

Cheers
Tier1_Bristol

[mrlookforward]

1) When I apply for ILR in September 2010, can I include my wife as well for ILR?
She was on my dependent visa and lived for more than 2 years.
No, you can't.

(2) If yes for above, Should I really change her visa back to Tier 1 dependent?
If she changes to tier 1 dependant, her clock will start ticking from the date she gets leave as T1 dependant.

Is there a requirement that states that the applicant for Dependent ILR should be on a dependent Visa at the time of application? Yes, a dependent immigrant is only a dependent immigrant when they are on a dependent visa of someone else. If they are in some other category in thier own right, then they are not dependent.

(3) If I shall apply for her Tier 1 dependent, can we do it in-country? (I am asking this as there were references in most of the forum threads that one should apply for dependent from home-country)
I think you need to apply from outside UK, but I am not too sure about this point.

[Tier1_Bristol]

Thanks MrLookForward. Basically, you have concurred with Markie.

Did you get a chance to look my queries after Markie's reply?


Experts - Can you please comment and help on this one?

Cheers

[Markie]

for all intent and purpose...the meaning of a settled person means he/she has been granted ILR already which means it is not YET applicable to you. As I mentioned before, if you are successful in your ILR application, then consider the option of applying using FLR (M) - for spouses/partners of settled individuals in the UK.

Thanks Markie.

I think there is bit of a confusion over here. I think the requirement for Dependent ILR is that he/she should be spouse of the main applicant and lived here for 2 Years. I dont remember seeing anywhere saying that the dependent applicant MUST BE on DEPENDENT VISA for 2 Years.

Also is there any explicit references that the applicant must be on a DEPENDENT VISA when applying for settlement (I am sure I missed seeing this point somewhere)

Can somebody please help me here?

I have given some references here:

1.From HO website - Choosing the right form:
'You told us that you are the husband, wife, civil partner or other partner of a British citizen or person settled here. If you have lived here for at least 2 years, you can apply using form SET(M).'

2.From Guidance for Set(M) :
Form SET(M) must be used if you are applying for indefinite leave to remain in one of the following categories:
- spouse or civil partner of a person present and settled in the UK

If you have not yet been given leave to enter or remain as the partner of a person present and settled in the UK, you must use form FLR(M).
My wife was given already FLR and been my dependent for more than 3 years now.


2 QUALIFYING FOR INDEFINITE LEAVE TO REMAIN
To qualify for indefinite leave to remain in one of the categories
for which you must use form SET(M), you must satisfy the requirements set out in Part 8 of the Immigration Rules, which are on our website.
One of the requirements is that you have to complete 2 years’ leave to enter or remain as the partner of the person named in your application.
Please note that it says your spouse should have completed 2 years on a dependent visa but no mention that it should be recent. In my case , my spouse completed more than 3 years on dependent visa though not recent
That period runs from
- the date on which you entered the UK with a visa in the relevant category; or, if you did not enter the UK with such a visa, from
- the date on which you were first granted leave to remain in the UK in the relevant category
If you were granted leave to enter or remain as an unmarried
or same-gender partner and are now applying for indefinite leave to remain as the spouse or civil partner of the same person, the 2-year period to be completed started when you either entered the UK or were granted leave to remain as an unmarried or same-gender partner.

3.From the immigration Rules (Part 8 )

Spouses or civil partners of persons present and settled in the United Kingdom or being admitted on the same occasion for settlement
Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
__(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

Cheers
Tier1_Bristol

[mrlookforward]

Thanks MrLookForward. Basically, you have concurred with Markie.

Did you get a chance to look my queries after Markie's reply?

Cheers

Yes, I looked at your queries, and can confirm what I have said is correct. She is on her own Tier1 and not your dependent, and thats it.

[Tier1_Bristol]

Thanks Markie and MrLookForward.

Markie - Thanks for the clarification. 'Settled person' means those who have got their ILR.

If we carefully read 'Part8' of immigration rules:

Spouses or civil partners of persons present and settled in the United Kingdom or being admitted on the same occasion for settlement

Does it not mean those applying for ILR can also include their spouse's ILR (SET(M))?

Further looking into it:

Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
__(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

It doesn't say that your dependent must be in dependent visa while applying for settlement.

I guess, I am certainly missing some whole point here as many of you guys think that the dependent should be Dependdent visa.

Can somebody point me to the reference where it clearly states it??

MrLookForward - Thanks for the reply. I am sure you must have read about this somewhere that you are confident about this. If yes, can you please point me where it says clearly ?

Cheers,
Tier1_Bristol

[mrlookforward]

Thanks Markie and MrLookForward.

Markie - Thanks for the clarification. 'Settled person' means those who have got their ILR.

If we carefully read 'Part8' of immigration rules:

Spouses or civil partners of persons present and settled in the United Kingdom or being admitted on the same occasion for settlement

Does it not mean those applying for ILR can also include their spouse's ILR (SET(M))?

Further looking into it:

Requirements for leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement
281. The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
__(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
__(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

It doesn't say that your dependent must be in dependent visa while applying for settlement.

I guess, I am certainly missing some whole point here as many of you guys think that the dependent should be Dependdent visa.

Can somebody point me to the reference where it clearly states it??

MrLookForward - Thanks for the reply. I am sure you must have read about this somewhere that you are confident about this. If yes, can you please point me where it says clearly ?

Cheers,
Tier1_Bristol

With due respect, you are doing research in the wrong direction. Most of what you have copied above is if your wife applies outside, so all the info you are looking at is simply irrelevant in your case. There is no way your wife can apply for SET(M) with you. I am not too sure whether she can apply for flrm from within UK.

[Casa]

Tier 1 Bristol...if you need confirmation that the information you've been given here is correct it would be wise to seek this from a qualified legal advisor.

[Tier1_Bristol]

Thanks Casa. I was just wondering if anyone has come across this situation or any advice will be given by fellow members/moderators.

Thanks mrlookforward - I think you might be correct. Can you please point me to the right direction with some references. Also, you have mentioned -
Most of what you have copied above is if your wife applies outside,.. Can you please point me the reference where this is specified?

FLR(M) has 'Applying from within UK' section.And by looking into it, I think it is possible to apply for FLR(M) from within UK.

Can somebody else please share your thoughts as well?

Cheers,
Tier1_Bristol

[mrlookforward]

I might not be correct, I am correct. Sorry mate, nothing against you, but I totally don't feel like making any more efforts to convince you. Best would be that you seek advice from an oisc advisor/solicitor.

[Tier1_Bristol]

Thanks MrLookForward. Sorry if I have offended you. ( I think I didnt offend you rather asked for some references for what you said).

Thanks for taking efforts and comments.


Was just wondering if somebody could point to references from Guide/Immigration rules etc along with their views.