To switch wife from Tier 2 ICT (LT) to dependent of ILR(T2G)

[drewsings]

hi

we are non-EEA national, from india

My wife is currently in the UK on Tier 2 ICT (Long term visa) but her company's project is getting over, so her COS would expire (though her visa is valid till 2016). I was on Tier 2 General earlier and now have ILR. Would anyone of you be able to tell us our options on how to make my wife stay here and which route would be the one applicable to us :

1. Apply FLR(M) route
2. PBS dependent for a settled person in Tier 2 General

I am not even sure if I have 1 as an option, as policy guidance states that even for a NOW settled person, a dependent has to continue applying leave in the original category the primary person has had leave in (that is Tier 2 general)

So I am thoroughly confused which route to go for, do I apply for her to switch into FLR (M) OR use PBS Dependent route to switch her to tier 2 general. And, would either of these require her to go back to our country

we also have a young one, who is born in the UK and is now a citizen, not sure how that is useful for her, but given the choices we're trying to see what is the best course of action

any help is greately appreciated.

thanks a lot

[CR001]

1. Apply FLR(M) route

This option is the only one she can do. It will reset her clock for ILR to zero and she will need to wait 5 years. She can apply in the UK and there is no need to apply from her home country.

She doesn't have the option of pbs dep as she was and is not in the UK as a pbs dep. The rule you quote is for spouses on pbs dep of the Tier 1 or 2 main applicant.

Do you meet the financial requirement?

She will have to pay the IHS surcharge.

[drewsings]

1. Apply FLR(M) route

This option is the only one she can do. It will reset her clock for ILR to zero and she will need to wait 5 years. She can apply in the UK and there is no need to apply from her home country.

She doesn't have the option of pbs dep as she was and is not in the UK as a pbs dep. The rule you quote is for spouses on pbs dep of the Tier 1 or 2 main applicant.

Do you meet the financial requirement?

She will have to pay the IHS surcharge.

Thanks for your reply,

Her ILR is already not possible with the visa she is on, she came to the country in 2010 June (after April) on an intra company transfer visa and it is unfortunate after spending 5 years we realize she was never entitled for ILR. So now we plan to switch when her project is getting over anyway.

The switch as per the gov.uk website seems contradictory to the popular opinion which you mentioned here too (and its the same I've heard from other knowledgable ppl too) which is why it leads to real confusion. Please take 2 minutes to see this :

1. https://www.gov.uk/remain-in-uk-family/overview :

"You need a ‘family of a settled person’ visa if you want to stay (‘remain’) with a family member or partner (eg spouse) who’s living in the UK permanently and you’re: already in the UK

You can apply if you’re eligible and you need to:

switch to a ‘family of a settled person’ visa
Your family member or partner can:

be a British citizen
have settled in the UK

then it lists exceptions :

Exceptions
You may need to apply in a different way if:
your partner originally had a temporary visa as a worker"


and when we click on exceptions, it says

2. https://www.gov.uk/remain-in-uk-family/exceptions

Your partner originally had a temporary visa as a worker
If your partner was in the UK on a temporary visa before settling or becoming a British citizen, you may have to apply as a ‘dependant’ (partner) in their original visa category.

it is taking us to the same Tier 2 general dependent route, and asking us to apply online for it.

I am completely confused which way to go. Also, how do I go to the FLR(M) route now, could you please give a link?

[CR001]

Please see point 2 on page 1 in the link below

https://www.gov.uk/government/uploads/s ... e_0415.pdf

Particularly the second bullet point.

She has not been your dependent on your Tier 2 visa prior to you receiving ILR so she does not qualify for a PBS dep visa.

She can apply for FLR(M) as spouse of person settled (ILR)

[drewsings]

Please see point 2 on page 1 in the link below

https://www.gov.uk/government/uploads/s ... e_0415.pdf

Particularly the second bullet point.

She has not been your dependent on your Tier 2 visa prior to you receiving ILR so she does not qualify for a PBS dep visa.

She can apply for FLR(M) as spouse of person settled (ILR)

I am quoting the point 2 :

2. You can apply as a PBS Dependant if you meet the criteria set out in this guidance and the
Immigration Rules, and you are:
•the family member of a person with, or applying for, leave under Tier 1, 2, 4 or 5 of the Points
Based System; or
•the spouse or partner of a person with indefinite leave to remain or British Citizenship who last
held leave in Tier 1, 2, or 5 of the Points Based System and you do not yet qualify for indefinite
leave to remain; or
•

The second bullet point does not state that you have to be a dependent to begin with, to continue being a dependent.

I completely agree with you that this used to be the case, but I am not sure if that is still the case anymore. The gov.uk website is clearly stating you can not apply in 'family of settled person' but it would fall under exception to go to Tier 2 General PBS still even if I am on ILR

I am not questioning your statement, as I again reiterate that this used to be the case (looks like) but now does not seem to be the case anymore. Can anyone confirm here please? Thanks a lot and hope you do not take this the wrong way CR001, I can imagine you know 100s of times more than I do but the rules are changing quite a bit and is causing confusion in respect to what was common knowledge, against what is out there in the print right now.

[CR001]

•the spouse or partner of a person with indefinite leave to remain or British Citizenship who last
held leave in Tier 1, 2, or 5 of the Points Based System and you do not yet qualify for indefinite
leave to remain; or

Meaning they need to apply for a pbs dep extension until they meet the criteria for ILR because they were already in the category of pbs dep and so that there is not a requirement to switch to FLR(M) due to main pbs applicant obtaining ILR.

They are both 5 year routes and would both require extensions mid point.

[drewsings]

ok, what about bullet point 1 just above it : as an OR that makes it valid for my wife to apply : (as a family member)

2. You can apply as a PBS Dependant if you meet the criteria set out in this guidance and the
Immigration Rules, and you are:
•the family member of a person with, or applying for, leave under Tier 1, 2, 4 or 5 of the Points
Based System; or

Also, what happens if I apply online for PBS (for example) which you say is not valid, would I be asked to redo the application and lose the visa application money?

[CR001]

Also, what happens if I apply online for PBS (for example) which you say is not valid, would I be asked to redo the application and lose the visa application money?

You could lose the fee yes.

You also have to pay the NHS surcharge for her which is roughly £500-£600 payable upfront at point of application.

I have made my point, the rules are fairly clear, if she was not a PBS dep prior to you receiving ILR, then it is not the appropriate application for her to make and the piece you are quoting relates to a family member joining the main PBS applicant and if they don't qualify for ILR while a PBS dep, they can continue to extend on PBS dep without having to switch to FLR(M) which would reset their clock to zero for ILR.

[drewsings]

Also, what happens if I apply online for PBS (for example) which you say is not valid, would I be asked to redo the application and lose the visa application money?

You could lose the fee yes.

You also have to pay the NHS surcharge for her which is roughly £500-£600 payable upfront at point of application.

I have made my point, the rules are fairly clear, if she was not a PBS dep prior to you receiving ILR, then it is not the appropriate application for her to make and the piece you are quoting relates to a family member joining the main PBS applicant and if they don't qualify for ILR while a PBS dep, they can continue to extend on PBS dep without having to switch to FLR(M) which would reset their clock to zero for ILR.

I think you're wrong on this one. Point 38 in the SAME document you sent me is stating why she can apply still :

Additional evidential requirement for dependants of PBS migrants whose last
grant of leave was not in this capacity. what would this clause be for if what you are saying was true?

38. If you are applying as a family member of a PBS migrant and your last grant of leave was
not as their dependant or you are a child born in the UK, you will need to demonstrate your
relationship.
Where you are married or in a civil partnership to a PBS migrant, you must provide your marriage
or civil partnership certificate to support your application
Where you are applying as the partner of a PBS migrant but are not married or in a civil
partnership with them you will need to provide documents to show that you have been living in
a relationship akin to marriage/civil partnership for a period of at least two years - documents
should therefore cover the whole of this period. Documents will only be accepted where they are
from official sources such as utility bills or NHS registration:

[CR001]

It would be relevant if you were still a PBS migrant, which you are not. So if she had applied as a PBS dependent even 1 month before you applied for ILR, this would be applicable.

Tier 2 General earlier and now have ILR.

According to your other posts, you are not on ILR as your BC application has been approved. Which means you have held ILR for well over a year.

I think you're wrong on this one

Then by all means apply for PBS dependent if you wish.

But I can assure you, FLR(M) is the correct application due to the fact that your spouse has not been resident in the UK as a dependent on your Tier 2 visa status.

[drewsings]

OK if you say so, then why is this page throwing me off the natural course of action :

image 1.png

1.png (109.43 KiB) Viewed 1428 times

Clearly says she can not apply as FLR(M) if I was a temporary worker (which I was, as Tier 2 Gen and now I'm on ILR)

then

image 2.png

2.png (156.19 KiB) Viewed 1428 times

which is a subsection of remain-in-uk-as-family/exceptions : says she would need to treat her as a PBS dependent even though I've ILR.

Since you're so thorough, you could be right but I just dont see how it could be so glaringly contradictory, your point and whats in here in the screenshots.

[CR001]

Was she or has she ever been a dependent on your Tier 2?
No

Are you currently a Tier 2 migrant?
No

Are you settled or British?
Yes, British

Is she therefore a spouse of a British Citizen?
Yes

= FLR(M) - spouse visa of person settled

http://www.immigrationboards.com/indefi ... ml#p971966

http://www.immigrationboards.com/indefi ... l#p1126559

http://www.immigrationboards.com/indefi ... l#p1126559