Confused between FLR or PBS

[mabhang]

Hello Members,

My husband got ILR in April 2015. He was previously holding Tier 2 work permit (PBS). I have Tier 2 dependent visa valid until August 2017.
I am planning to go to India next month.
1. Do I need to apply for a dependent of ILR visa as I am leaving the country for couple of months?
2. If yes, which visa should I apply? FLR or PBS?
3. Can I apply for the visa from India? What is the difference?

I went through many posts and I am confused because I read -
Form FLR(M) must not be used if you are applying for an
extension of stay:
• As a dependent of a PBS migrant (who has temporary
leave or has obtained indefinite leave to remain as a
PBS migrant) - the correct form is PBS Dependent.

Thank you for reading.
Experts please advice.

Best Regards,
Anuja

[geriatrix]

Did your husband apply for settlement under the 10 year route or as a PBS migrant?

[mabhang]

Hi dear,
Thank you for your reply.

I am not sure about it. My husband submitted the SET(O) form and his ILR is valid for 10 years.
So I am guessing it falls under the "10 year route" category?

[vinny]

No. If he had applied for SET(LR), then he would have applied under Long residence.

See also Dependants of ILR (economic, 5 year route) applicants.

You may travel and remain and continue to apply for extensions shortly before expiry of leave under your current category until you are eligible to apply for ILR.

[mabhang]

Thank you for the link! It cleared most of my confusion.

So from what I understand, I can travel to India on my PBS dependent visa which is valid until August 2017 and return back without any problems?
Also for how long can I stay in India? Is there a limit for number of days I can stay?

Thank you so much for your help really.

[vinny]

Absences should be limited and for good reasons.

When did you initially apply for leave as his dependant?

[mabhang]

I applied for PBS dependent in June 2013 (from India) but I came to UK in August 2013. Then last year my husband changed his job and we both applied for new Tier 2 and Tier 2 dependent visas resp.
Is there any such possibility that my visa will be canceled if I stay for more than the "allowed months". If yes do you know how many months I am allowed to stay out of UK?
I was confused about going to India without changing my visa (from Tier 2 dependent to ILR dependent) as I read in few posts that I can go to India but I wont be able to enter UK when I come back. Is that true?
Thanks

[vinny]

There is no specified number of months that you may be absent from the UK. You should return prior to expiry of leave. When you extend, they may ask for evidence of subsisting marriage.

[mabhang]

Hello dear,

Thank you so much for all your help last time. It really made things clear for me and I took the right decisions.

I have a new situation now. I am in India right now. My husbands company had sponsered our tier 2 visas. My husband got ILR in april but I am still on the tier 2 dependent visa. My husband's company HR received email yesterday from UKBA saying that they are curtailing my visa and I have leave to remain only till 15th nov 2015. they are doing this because my husband got ILR and I haven't applied for the visa in line with my husband. as my husband got ILR, his tier 2 visa has been curtailed and so they are curtailing mine.
If I want to continue to stay then I have to apply for new visa before 15th nov.
If I leave country then automatically my visa will be invalid. But I am already out of country and they made this decision after I left.
Really worried and confused. Please suggest me what can I do.....
Thanksl you so much.

-Anuja

[vinny]

That's very odd. I am continuing to assume that your husband did not apply for SET(LR) under Long residence. Do check this to make sure. Perhaps you could write out his immigration history.

If he applied for SET(O) under the PBS, then there's no justification in the UKVI curtailing your leave.

The provisions in 319C(b)(iii) specifically permits you to apply for further leave to remain as a PBS dependant, shortly before your leave expires, after your husband is granted ILR under PBS.

As you've got leave valid until August 2017, there's no point in applying for further leave as a PBS dependant immediately after your husband was granted ILR under PBS. You would have been granted leave for a maximum period of 3 years as a PBS dependant under 319D from the date of the decision. About two years leave would overlap. So, effectively, you would only be getting one year extra leave.

If your husband was granted ILR, then it does not imply that his Tier 2 was being curtailed! It implies that the conditions/restrictions based on his Tier 2 are removed. Being granted ILR is the complete opposite of curtailment! The caseworker is very badly misinterpreting the rules and should be better trained.

Write back, pointing out 319C(b)(iii) and their Explanatory Memorandum.

[mabhang]

Hi,
Thanks for the prompt reply!
Yes thats very odd! We had also confirmed our prior situation by calling ukba.
My husband applied for SET (O) not SET (LR).
very sure about that. Is there anyway I can send you an attachment? Its their letter. It would be best if you go through it.
Let me know.

Thanks again!

-Anuja

[vinny]

Did he apply for ILR on the basis of being in work categories for 5 years? Can you give his immigration history, just to be certain?

[mabhang]

Yes he applied for ILR after completing 5 years on tier 2 PBS work permit.
His work history is as follows -
He came to UK on 7th April 2010 sponsered by a company in Manchester. He was granted tier 2 work visa for 3 years. He worked for them for 3 years.
Company 1 (Manchester) - April 2010 - December 2012
Company 2 (London) - January 2013 - July 2014
Company 3 (London, current company) August 2014 - Present.
He applied for PR in April 2015 (same day application)

- Anuja

[mabhang]

Yes he applied for ILR after completing 5 years on tier 2 PBS work permit.
His work history is as follows -
He came to UK on 7th April 2010 sponsered by a company in Manchester. He was granted tier 2 work visa for 3 years. He worked for them for 3 years.
Company 1 (Manchester) - April 2010 - December 2012
Company 2 (London) - January 2013 - July 2014
Company 3 (London, current company) August 2014 - Present.
All the three companies granted him tier 2 work visa.
He applied for ILR in April 2015 (same day application)

- Anuja

[vinny]

Then I maintain that the caseworker misinterpreted the rules.

[mabhang]

What do you suggest we should do?

[vinny]

If you have got the caseworker's contact details, then write to him/her.

Or try their general email contacts, quoting their caseworker's reference number (if there was one).

Explain as above.

Try to get a senior caseworker to look into this.

[Obie]

That's very odd. I am continuing to assume that your husband did not apply for SET(LR) under Long residence. Do check this to make sure. Perhaps you could write out his immigration history.

If he applied for SET(O) under the PBS, then there's no justification in the UKVI curtailing your leave.

The provisions in 319C(b)(iii) specifically permits you to apply for further leave to remain as a PBS dependant, shortly before your leave expires, after your husband is granted ILR under PBS.

As you've got leave valid until August 2017, there's no point in applying for further leave as a PBS dependant immediately after your husband was granted ILR under PBS. You would have been granted leave for a maximum period of 3 years as a PBS dependant under 319D from the date of the decision. About two years leave would overlap. So, effectively, you would only be getting one year extra leave.

If your husband was granted ILR, then it does not imply that his Tier 2 was being curtailed! It implies that the conditions/restrictions based on his Tier 2 are removed. Being granted ILR is the complete opposite of curtailment! The caseworker is very badly misinterpreting the rules and should be better trained.

Write back, pointing out 319C(b)(iii) and their Explanatory Memorandum.

I agree with that 101%, strange that they are going thorough the administrative burden of threatening curtailment of visa, for people who are entitled to this visa, and the ones who are not entitled are not even being called.

I will like to see the legal basis for their contention that the visa should be curtailed.

[mabhang]

Thank you so much guys for the suggestions.
In the letter though they have said that "You do not have any right to appeal" and "No administrative review". There is a reference number on the letter. Should I email on the general email address or how should I get in touch. I am really confused as they said we can't even have an administrative review...

[vinny]

No harm in trying all their email addresses that you have.

Try also Sarah Rapson.

[Obie]

Also try and get the letter from the Employer, to ascertain what the basis of the proposed curtailment was, and then try to address it.

[mabhang]

Thank you so much for your help.
I will try all possible emails.

Thanks again.

-Anuja

[vinny]

I will like to see the legal basis for their contention that the visa should be curtailed.

Indeed.

It's absurd for a caseworker to assert that husband's previous leave was "curtailed" after being granted ILR.

[mabhang]

Hi guys ,
I am attaching screenshot of the letter. Please go through it.
Thank you.

- Anuja

[vinny]

Can you attach the bit above, where the caseworker claimed that your husband's Tier 2 leave was curtailed because he was granted ILR (Indefinite Leave to Remain)?

By definition,

“curtailment” in relation to the curtailment of a person’s leave to enter or remain in the UK, means curtailing their leave such that they will have a shorter period of, or no, leave remaining.

I believe a person's leave is curtailed iff that person's leave was subject to curtailment/cancellation under 323-323C/9.23.1-9.32.1.

If they granted your husband ILR, then his Tier 2 leave was not curtailed.  Being granted ILR is completely the opposite of leave curtailed! Claiming that a person's previous leave was curtailed as a result of being granted ILR is absurd and unsupportable under the Immigration Rules.

Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).

(2A) Subject to section 8(5) above, references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.

"settled in the United Kingdom" means that the person concerned:
(a) is free from any restriction on the period for which he may remain save that a person entitled to an exemption under Section 8 of the Immigration Act 1971 (otherwise than as a member of the home forces) is not to be regarded as settled in the United Kingdom except in so far as Section 8(5A) so provides; and
(b) is either:
(i) ordinarily resident in the United Kingdom without having entered or remained in breach of the immigration laws; or
(ii) despite having entered or remained in breach of the immigration laws, has subsequently entered lawfully or has been granted leave to remain and is ordinarily resident.

(vi) if he was granted his current period of leave as the dependent of a person (“P”) and P’s leave to enter or remain is being, or has been, curtailed; or

P's leave was never curtailed. P being granted further or indefinite leave that increases P's existing period of leave directly contradicts with the definition and process of curtailment. So, to say that 323(vi) is applicable is irrational.

Therefore, 323(vi) is not applicable to you.

Moreover, the caseworker's action is also inconsistent with 319C and 319E.

Cancellation: appeal and administrative review rights

An individual does not have a right of appeal or administrative review in respect of a cancellation decision made on or after 6 April 2015. However, this does not apply where an individual comes under the EU Settlement Scheme or is an S2 Healthcare Visitor as these cohorts do have a right of appeal. For these cohorts, and additionally Service Providers from Switzerland, there is a right to seek an administrative review where cancellation decisions are made at the border only. For more information, see section: Cancellation and curtailment grounds: appendices and annexes.