ILR Success - 13/05/2010 Croydon. Main applicant only..

[1664]

Hi All

This is my experience..

Had an appointment today at Croydon for ILR under HSMP (JR) +1. at 8:00 am and was out by 11:00 am.

My wife is on a dependent visa Tier (1) General and I was under the impression that she would qualify for ILR too with me especially under HSMP(JR) but I was wrong. I had booked a family appointment and when I arrived at the initial screening desk the clerk mentioned that my wife would not be eligible as she has been in the UK for less than 2 years. (I know one of the moderators on this site had a similar issue) but I told the clerk about the HSMP (JR) and he said he was sure of the dependent being refused the ILR if we went ahead. Then after a long discussion we decided to strike the dependent from the form.

Then after the clerk stamping "Valid" on the docs we then went up to the 1st floor made the payment.
After this our number was called went and submitted all the docs (the case worker then asked me to submit all the "supporting documents").
After submitting she scanned through them and asked us to wait. After about 90 minutes the case worker said she was going to grant me the ILR.

It is after that point I asked her about my dependent and the told her about the HSMP(JR) also mentioned what happened at the initial screening stage. So she then asked me to wait whilst she has a chat with a supervisor. After about 5 minutes she comes back and points out at the Tier 1 (G) and the 2 year rule.

So it was a mix of emotions overall I should say I am glad I got the ILR. The next thing now remains to see what is required for the dependent to do at this stage. If any suggestions or comments please let me know.

Also if you have any questions let me know I'll answer them.

Good Luck.

[geriatrix]

There is no requirement (in the immigration law) for dependents of HSMP JR protected migrants to have spent 2 years in the UK as dependents before becoming eligible for ILR.

The problem with UKBA clerks is that all they look at is the "Tier 1 migrant" or "Tier 1 partner / dependent" on the visa without getting into the background of the case and come up with the (dictatorial) conclusion that the individual is a Tier 1 migrant (and not HSMP migrant) and the "2 year residency" condition springs up in their heads.

Unless one is aware of the immigration rules applicable to HSMP migrants protected by HSMP JR (and their dependents), it is easy to be taken advantage of or being easily misguided ..... like in your case. Dependent(s) of HSMP migrants protected by HSMP JR are covered under immigration rules 194 - 196F unlike dependents of Tier 1 migrants who are covered under immigration rules 319A - 319K. Requirements for ILR for dependents of HSMP migrants (196D) do not include any condition that the dependent must have lived in UK for 2 years as a dependent to become eligible for ILR. On the other had, ILR requirements for Tier 1 dependents clearly specify such a condition (319E(d)).

Moreover, the HSMP Forum Ltd judicial review (settlement) policy document clearly states that (para 29) "The immigration status of dependants of migrants in the categories covered by this policy will follow that of the principal applicant".

Looks like we faced the same clerk (in fact there were two of them with the same views on the day of my appointment) but I guess I had the good fortune of getting a caseworker who knew which immigration rules to apply in our case and straight-away rejected the clerk's notes on the application) and struck them off.

As I mentioned in my earlier post on the issue, in my case the dependent had entered UK (on a dependent visa) only 3 days before the ILR appointment. Prior to travelling to home country to apply for dependent EC, both I and my partner had our own HSMP visas - in our own right!


regards

[geriatrix]

Some other examples (amongst many):
Case 1 - ILR granted.
Case 2 - ILR granted.
Similar to my case (both partners on HSMP before one changed to dependent to apply for ILR at the same time), I am aware of another forum user who had his and his dependent's ILR approved within 3 weeks of dependent's entry into UK (as a dependent). This was in Feb. '10.

regards

[1664]

You think it matters on what the script says on the Visa Stamp itself?
My wife's got on hers saying "Tier 1 General Migrant Partner". Perhaps that makes the difference in judging either the 2 year rule applies or not?

This is so dissappointing for both us.

Any one have any suggestions on what needs doing next? Does she have to convert to another visa category like FLR(M)? The current Tier 1 dependent visa is still valid for another year - can she remain on that and apply for her ILR? Or does the clock start again if visa categories are changed?

Thank you all..

[geriatrix]

I believe she will have to apply for extension of leave using FLR(M) since you are no longer a HSMP/Tier 1 migrant and therefore she cannot stay on as a Tier 1 dependent (on a non-existent Tier 1 sponsor).


regards

[1664]

Thank you..

Any idea on ILR? Time frame?

[geriatrix]

It is a clear misinterpretation of the immigration rules by the UKBA staff and I believe you should submit a formal complaint.

regards

[geriatrix]

Thank you..

Any idea on ILR? Time frame?

After completing 2 years of stay in UK as dependent/spouse.

regards

[1664]

This meaning her 2 year clock restarts since FLR(M) is approved...if at all..

[geriatrix]

This meaning her 2 year clock restarts since FLR(M) is approved...if at all..

No, 2 years from the date she entered UK as your (Tier 1) dependent.

regards

[1664]

Thanks for that. It would have been frustrating if she had to wait further 2 years.
Is this a known fact or read this somewhere? I'd like to take a print out if scripted to show it to the ukba staff if they act up again...

Thank you once again!

[geriatrix]

Immigration rules 287(a)(i) - 287(a)(vi). Read 287(a)(i)(d).

regards

[farazfastian]

As i mentioned on the other thread, the UKBA said on the phone that my wife has to spend 2 years from again in order to qualify for ILR.

[1664]

farazfastian : I agree with you with what you heard from the UKBA staff over the phone as the same thing was told to my wife too when she called to find out.
However there is evidence to the contrary - First instance
After I had decided to take my wife's name off the Set(O) application as the dependent - the screening clerk at Croydon took sometime to explain that my wife would have to now apply for FLR(M) and also confirmed that she didn't have to wait for another 2 years to apply for her ILR. He clearly mentioned that she can apply for it next year (She's been on tier 1 for one year exact, and FLR(M)till may 2010 will make her 2 year resident.

Apart from this read the post above by the moderator and after reading the immigration rules it becomes clear that the 2 year rule of residence is acceptable as a Tier 1 dependent plus change in status as a spouse of a person settled in the UK.

Hope its clear...

[1664]

Something really strange happened today at PEO Croydon.
If you read the above posts this post will make sense.
After my ILR went to croydon today to apply for FLR(M) for spouse.
The screening clerk counter 3 (real sensible guy and someone who knows his stuff) looked at the application form and the passports and questioned why didn't my wife apply for ILR with me on the SET(O) Form. So I explained what had happened and he shook his head in disbelief.
To my surprise he then said that my wife will be able to apply for ILR as a HSMP(JR) but asked us to wait so he can confirm this with a senior Case worker. So he went in and coming back after 10 minutes he had a SET(O) form where we filled it on-spot. Just to add the guy in counter11 who we dealt with initially and said my wife was not eligible was at the same counter number today,perhaps he's always there so this is just for your reference you may have to educate him further depending upon your application.
And and the guy at counter 3 also mentioned that they did a similar thing last week where they had wrongly assessed the spouse of HSMP(JR) which they put it right.
So moving on paid another £1095 (will have to write into PEO croydon for the refund) met the case worker where she had the same question as why didn't she apply initially,so explained again.
She took another 2 hours to contact her senior case worker,do her checks and finally granted ILR.
This was backdated to the same date as mine...so overall with a lot of time,effort and money - double really, finally achieved what we set-out to a month ago..

Thanks especially to sushdmehta for all your comments,suggestions, and guidance.

Let me know if you guys have any questions and I'll try and answer them.

Good Luck!