Spouse qualifying period for ILR

[kna872]

Dear Members,

I have a query regarding the ILR for my wife.
The reason for this query is that we have been given contradictory answers by UKBA about my wife's duration of stay as a dependant.

My query revolves around determining whether my wife qualifies to apply for ILR. She has been in UK under two visa categories ie HSMP dependant until I got my HSMP changed to ILR in April 2011 and my wife consequently had to apply for spouse visa which she got in September 2011.

Situation 1:
When I called UKBA to confirm when would be the earliest my wife could apply for ILR. Twice UKBA told us that she has to complete her duration of 2 years on a spouse visa until September 2013 before she could apply for ILR.

Situaton 2:
Whereas, on the other two accounts, we have been informed that her status as HSMP dependant would be counted towards her qualifying period, until April 2011.( that is when I got my HSMP changed to ILR), making it 14 months. But then her stay from April 2011 to September 2011 would not be counted, because her visa status had become void according to UKBA, even though she was in UK. Her duration from September 2011 onwards will be counted until she completes her 24 months qualifying period to apply for ILR.

I know this is a very tricky question, but would be really grateful for any help in this regard. Obviously it would be great if we can apply asap, but help on the right direction would be appreciated. Once again, I would be thankful for doing the needful.

Ali.

[Greenie]

Did she have leave as an hsmp dependent or a tier 1 dependent?

[kna872]

My initial visa was HSMP and she arrived in UK as HSMP dependant. Then in January 2010 I had to extend my HSMP to tier 1 and then she became a tier 1 dependant.

Just to add, we have a daughter who has been registered as a UK citizen.

Also, could anyone please advise as to which form should I be applying in for my wife's ILR.

Thank you once again for your response.

Ali

[Greenie]

Set(m) is the form to use. Your wife can accumulate time spent as a PBS dependent and time as the spouse of a settled person for the two years as per para 287(i)(a)(d) of the immigration rules. I wouldn't agree that the time after you got ilr and before she was granted further leave as the spouse of a settled person is 'void' and therefore doesn't count.

[kna872]

Thank you so much for your response. Its just that so many contradictory statements have been given to us by UKBA. Thank you for pointing out to 287(i)(d). I am in the process of making sense out of 287(i)(d).

I am just waiting for two or three more gurus like yourselves to chip in, and then I would have the confidence to apply straight away. These applications are quiet expensive!

I've been making note of the phone calls to UKBA. Do you think if i refer to the date and time of call in my application, would that make a difference?

Thank you.

Ali

[ban.s]

@kna872 - when did your wife apply for status change from HSMP dependent to Spouse of a settled person?

@Greenie - Is there any time limit for the status change?
AFAIK, FLR as spouse of a settled person needs be submitted as soon as practical once the main applicant receives ILR. So any significant gap may break the continuity.

[kna872]

She applied for the spouse visa by the end of August 2011 because she had to wait for her English test result. I would imagine that this would constitute as a genuine reason.

[Greenie]

@kna872 - when did your wife apply for status change from HSMP dependent to Spouse of a settled person?

@Greenie - Is there any time limit for the status change?
AFAIK, FLR as spouse of a settled person needs be submitted as soon as practical once the main applicant receives ILR. So any significant gap may break the continuity.

Whilst i would always advise on switching on form FLR M as soon as possible there is nothing in the law that states it is a requirement to apply as soon as possible and certainly nothing that makes the leave 'void' it is up to the ukba to curtail it if they see fit. If you disagree please refer to the relevant law.

[kna872]

Hi,

I am a bit confused again. I came across the following on UKBA and settlement checking service's website regarding the qualifying period for ILR.

Two year probationary period

If you have an entry clearance visa (issued abroad) the two year probationary period starts from the date your visa was stamped, by the Immigration Officer, when you entered the UK.

If you have a residence permit or a biometric residence permit the two year probationary period starts from when you were granted two years leave as a spouse or partner (even if you previously had leave in another category, for example as a student).

Here are the important dates regarding my wife's stay :

29 Nov 2009 HSMP Dependant
25 Jan 2010 Tier 1 Dependant
15 Sep 2011 Spouse Visa ( issued biometric residence permit)

According to the above mentioned paragraph, my wife cannot apply until September 2013, when she would have completed two years on a biometric residence permit.

I was about to fill in the application form, and would really appreciate if knowledgeable members could clarify this paragraph for me, please.

Thank you.

Ali

[Greenie]

Hi,

I am a bit confused again. I came across the following on UKBA and settlement checking service's website regarding the qualifying period for ILR.

Two year probationary period

If you have an entry clearance visa (issued abroad) the two year probationary period starts from the date your visa was stamped, by the Immigration Officer, when you entered the UK.

If you have a residence permit or a biometric residence permit the two year probationary period starts from when you were granted two years leave as a spouse or partner (even if you previously had leave in another category, for example as a student).

Here are the important dates regarding my wife's stay :

29 Nov 2009 HSMP Dependant
25 Jan 2010 Tier 1 Dependant
15 Sep 2011 Spouse Visa ( issued biometric residence permit)

According to the above mentioned paragraph, my wife cannot apply until September 2013, when she would have completed two years on a biometric residence permit.

I was about to fill in the application form, and would really appreciate if knowledgeable members could clarify this paragraph for me, please.

Thank you.

Ali

the web pages do not set out the law in its entirity. The rule I have quoted confirms that your wife can accumulate time spent as a PBS dependent and following her FLR(M) application.

[goody09]

when I got my ILR, my wife was a work permit dependant and because she did not pass the Life in the UK test I did not include her in my ILR application , her visa at that time was work permit dependant which was valid for another 9 month, 6 month later from getting my ILR I applied through Solihull PEO for my wife two years spouse leave to remain

I remember very well that the Case worker told me that your wife current visa is still vaild for another 3 month if she can pass the life in the uk test she can apply for ILR but if she prefere to apply now for two year spouse visa she will not be eligable to apply for the ILR untill 28 days before ending of the two year as a spouse

[Greenie]

when I got my ILR, my wife was a work permit dependant and because she did not pass the Life in the UK test I did not include her in my ILR application , her visa at that time was work permit dependant which was valid for another 9 month, 6 month later from getting my ILR I applied through Solihull PEO for my wife two years spouse leave to remain

I remember very well that the Case worker told me that your wife current visa is still vaild for another 3 month if she can pass the life in the uk test she can apply for ILR but if she prefere to apply now for two year spouse visa she will not be eligable to apply for the ILR untill 28 days before ending of the two year as a spouse

work permit dependent is not the same as PBS dependent. In addition to the rules were changed last year to make it clearer in order for PBS dependent leave and leave as the spouse of a settled person can be combined. there also numerous examples of posters on this forum going down this route.


I have quoted the relevent rule for the OP. I would suggest if the OP is still unclear to seek and pay for legal advice.


See FLR or ILR for my dependent and please read the relevent immigration rule 287(i)(d)

[mohd24]

Congrats! goody09 ,its seems that sulihull PEO officers are more helpfull then others......can you tell us how did you pay ur fee and do you have to pay in advance before casewoker call you or after they had seen you? it will be great help.
Thanks