ILR refused for dependent

[ilr_uk]

Hi All,

I had applied for ILR in Tier 2 Category (WP & Tier 2) at Liverpool PEO today with my wife as my dependent. Even though i got ILR, my wife's ILR was refused saying she has not completed 2 years in UK as my dependent. We got married in August 2008 and she came to UK in September 2008 on intra company transfer work permit. She went back to India in May 2009 and came back to UK as my dependent in September 2009. So the assessing officer said she would qualify only by September 2011 and was refused ILR. My wife had posted her case in this forum before and the suggestions she got was that she would be eligible as well. So was that really the case? or is it just her bad luck? Also it would be great if you can provide us some guidance on what has to to done now. I think she should be applying for FLR(M), but how soon should she change her visa? Her visa as Tier 2 dependent is valid until Feb 2012. Also please provide some guidance on English test requirement as well, as I'm not sure which is the quickest one she can take.

I really appreciate the amout of help/information we get from this forum. Thanks everyone.

Regards,
Shibu

[geriatrix]

As per immigration rules, there is no requirement for the dependant of a Tier 2 Migrant to be living in the UK as a "dependant" to be eligible for settlement.

(c) The applicant must have, or have last been granted, leave as the Partner of the Relevant Points Based System Migrant who is being granted indefinite leave to remain.

(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for a period of at least 2 years.

What actually happened?
1. Were you advised that she doesn't qualify so you should exclude her the application. And then you applied (and paid fees) for self only, and were granted?
or
2. Did you pay fees for joint application but the caseworker refused to grant settlement to your wife on the basis that she doesn't fulfil the "2 year living in the UK as a dependant" requirement and only granted settlement to you.

Nothing but incompetence of UKBA staff!


regards

[geriatrix]

An example of similar experience by a HSMP JR migrant and the person's good luck on later date.

Another example of unlawful refusal / inaccurate advice.


regards

[ilr_uk]

Initially I paid the fees for both of us, but when our case was considered, the caseworker checked my wife's passport and said she doesnt qualify as she hasnt completed 2 years in UK as my dependent. So as you have qouted in your post, we tried to explain to her that we read in the UKBA site that she has completed 2 years but was initially on work permit. So the caseworker told that sicne my wife applied for dependent visa from outside UK (India), its considered as new entry clearence and the dates count from that day onwards. She gave us an option either to wait till September, and we both can apply together or I go ahead for mine now and she apply for FLR later. Since there were so many things happening in my NHS trust, we didnt want to take a risk. SO she said she will refund me the £350 and considered only my application. To be honest we were quite taken aback as we didnt expect this to happen. And afterwards we checked with her by when she should aply for FLR and she said within 6 months, and also added sooner the better. I am no sure if she can stay in UK with her Tier2 dependent visa for 6 months, so thought of chekcing with the much more informed people we have in this forum.

[geriatrix]

The caseworker was wrong in his/her interpretation of the immigration rules / requirements.
A successful case.



regards

[geriatrix]

With regards to FLR(M) application, I would suggest that your wife switches as soon as possible, since the time spent in UK as Tier 2 dependant cannot be included when applying for settlement as spouse of settled person / British citizen. This means that your wife will be eligible for settlement, under current rules, only after 2 years from the date her FLR(M) leave is effective (287(a)).


regards

[ilr_uk]

The caseworker was wrong in his/her interpretation of the immigration rules / requirements.
A successful case.



regards

Thanks a lot for your replies sushdmehta...
so just curious, is there something we can do about it? I have the fees refund receipt with me. Would it be of any help if we consult a immigration lawyer?

[geriatrix]

Do consult a competent solicitor to understand if and how UKBA can be held responsible for their mistake, and what options you have to pursue the matter in this regard.


regards

[xyz123]

The caseworker was wrong in his/her interpretation of the immigration rules / requirements.
A successful case.



regards

Thanks a lot for your replies sushdmehta...
so just curious, is there something we can do about it? I have the fees refund receipt with me. Would it be of any help if we consult a immigration lawyer?

If i were you, i would write to UKBA first explaining everything and sending copies of relevant rules, copies of passport, details of case worker etc. Send by recorded delivery and keep proof.

You appear to have a case so i would hesitate to consult a solicitor and pay their fat fees for almost doing nothing (other than writing a letter)!

Once you have a reply from UKBA then you could consult solicitor if required.

[ilr_uk]

If i were you, i would write to UKBA first explaining everything and sending copies of relevant rules, copies of passport, details of case worker etc. Send by recorded delivery and keep proof.

You appear to have a case so i would hesitate to consult a solicitor and pay their fat fees for almost doing nothing (other than writing a letter)!

Once you have a reply from UKBA then you could consult solicitor if required.

Thanks for all your replies.
To be honest, I had posted in UKresident forum as well, and a solicitor in that forum replied saying that her refusal is right. So I'm all the more confused. And also, can someone tell me how long she can stay in UK legally with her Tier 2 dependent visa? I mean just concerned that if she would be considered as overstayer, if i go with consulting a lawyer/ write to UKBA directly.

[Greenie]

If i were you, i would write to UKBA first explaining everything and sending copies of relevant rules, copies of passport, details of case worker etc. Send by recorded delivery and keep proof.

You appear to have a case so i would hesitate to consult a solicitor and pay their fat fees for almost doing nothing (other than writing a letter)!

Once you have a reply from UKBA then you could consult solicitor if required.

Thanks for all your replies.
To be honest, I had posted in UKresident forum as well, and a solicitor in that forum replied saying that her refusal is right. So I'm all the more confused. And also, can someone tell me how long she can stay in UK legally with her Tier 2 dependent visa? I mean just concerned that if she would be considered as overstayer, if i go with consulting a lawyer/ write to UKBA directly.

she will not be an overstayer if she has leave until 2012.

The alternative is to apply for FLR(M) by post now and make detailed representations as to why you think she should be granted ILR instead.

[ilr_uk]

Hi All,

Just to update you on my wife's visa status..Even though we got response from this forum that she will not be considered overstayer as she her Tier 2 dependent visa is valid till Feb 2012, we thought of preparing for FLR(M) to be on the safer side. So we had been to London yesterday to write English test. So after the test, we thought we will go to Croydon office and check about her visa in the homeoffice enquiry office. And the response we got from them was an entirely different one. The guy at information centre told us that we need not apply for FLR(M) and since she will complete 2 years in September, she can apply for ILR directly in September. And we were quite surprised to hear that, and so we checked with him which form to use and he said SET(O). Since we were not very satisfied with his answer, he called up someone and then later confirmed that even the officer he was talking to confirmed that she can apply for ILR in September. But as i said, we really didnt want to take any risk, so called up UKBA twice and both the times, their responses were different. One person told she can apply for ILR, other person said she has to switch to FLR ASAP. Anyways we are now thinking of writing a letter to UKBA, at the same time booking an appointment for FLR. I havent written before to UKBA, but i don't expect to get a response soon. Just trying our luck, if we get it in writing, that would be substantial, rather than saying "he said", "she said". If we dont get any response, may be we would just take the copy fo the letter sent along with our application. Any suggestions? and I would be more than happy to hear. I will keep you posted, in case its of help for someone else in our situation.

Thanks,
Shibu

[eager2learn]

Usually they just look for last 2 years cohabitation. It can be that in your wife's case, the case worker considered the gap between May09 and September09 is too large.

In my case, my wife got ILR along with me few days ago and she just converted into my dependent around 15 days ago from our home country. However she originally came to UK as my dependent early 2007 and then converted to wp later in the year and we lived together in UK all along.

[geriatrix]

my wife got ILR along with me few days ago and she just converted into my dependent around 15 days ago from our home country.

If your wife was granted ILR with you then why did she have to become your dependant from your home country (after being granted ILR)?

[Greenie]

my wife got ILR along with me few days ago and she just converted into my dependent around 15 days ago from our home country.

If your wife was granted ILR with you then why did she have to become your dependant from your home country (after being granted ILR)?

I think he is saying that his wife got ILR a few days ago and got the dependent visa beofre that about 15 days ago (i.e. before the ILR?)

[eager2learn]

my wife got ILR along with me few days ago and she just converted into my dependent around 15 days ago from our home country.

If your wife was granted ILR with you then why did she have to become your dependant from your home country (after being granted ILR)?

I think he is saying that his wife got ILR a few days ago and got the dependent visa beofre that about 15 days ago (i.e. before the ILR?)

Greenie, thanks for solving the complex puzzle of sushdmehta.

[geriatrix]

Oops! the Inglish brush up I need.

[geriatrix]

ilr_uk,

7.13 .....
Technical changes are being made to the provisions for indefinite leave to remain applications by dependants of Points Based System Migrants. These amendments allow dependants who are not applying at the same time as the main applicant to qualify for indefinite leave to remain as dependants of Points Based System Migrants, rather than as dependants of persons present and settled in the UK. This is consistent with indefinite leave to remain provisions for dependants in all other economic migration categories. These amendments also add this provision for other relevant Tiers of the Points-Based System (The pre-existing rules refer to dependants of Tier 1 Migrants only).

According to this statement, it seems clear that (presently) dependant(s) of PBS cannot apply for settlement without switching to FLR(M) beforehand. But this restriction is being removed from 06-Apr-11 (as per above).

So, perhaps it will be wise to defer the switch until 06-Apr-11 ... to know what the new immigration rule(s) will exactly state.

[ilr_uk]

ilr_uk,

According to this statement, it seems clear that (presently) dependant(s) of PBS cannot apply for settlement without switching to FLR(M) beforehand. But this restriction is being removed from 06-Apr-11 (as per above).

So, perhaps it will be wise to defer the switch until 06-Apr-11 ... to know what the new immigration rule(s) will exactly state.

Thanks a lot Sushdmehta..anyways we have booked the appointment for FLR(M) on 25th of March. I will have a thought about it anyways. In the meantime, we were filling the FLR(M) form today and have a couple of doubts. I will post it in the "Immigration for family members" forum. Thanks once again.

[ilr_uk]

Hi All,

As I mentioned earlier, we had been to PEO to apply for FLR(M) for my wife. We had included a covering letter stating all the facts and different responses we got from UKBA. After reading the covering letter, he went to discuss our case with his senior caseworker. And to our surprise, he said that the response we got from Croydon Public enquiry office is correct. ie We have 2 options - either to continue on Tier 2 Dependent visa and apply for ILR in September (by when she will complete 2 years on dependent visa) or to apply for FLR(M) now and wait for 2 more years to apply for ILR. We again showed him the print out of the email from UKBA which said she had to apply for FLR(M) now and then can apply for ILR in September. He again went to discuss with his senior and said they went through all the policy documents and that I can apply for ILR directly in September. So we withdrew our application for FLR(M). When asked, if he can provide a letter stating that her current leave to remain is valid, he said they cannot provide anything in writing. We had planned for a trip to India next month, now confused if we should cancel it as we never know what the immigration officer at UK Border would be saying when we enter the UK.

[eager2learn]

Oops! the Inglish brush up I need.

or maybe it was the fault of my indo-lish and common sense(after my wife got ilr, i have to make her my dependent ofcourse!)