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ankit0708 · Junior Member Joined: 29 Nov 2011 Posts: 11

Hi all,

Just wanted to check something. Here's my background:

I was on the Tier 2 (General) visa which expires in September 2013. However, in April 2012 i got my ILR on long residence (10 years) basis.

My wife was dependent on my Tier 2 visa (which expires in Sept 2013) until I switched to ILR. Now I am applying for her to be my dependent on ILR as we are planning to travel soon. I know that once she leaves the UK, her dependent's visa is cancelled. I wanted to ask the following:

1. Is FLR(M) the correct form to use?
2. She already has a biometric residence card as she was my dependent on Tier 2. I have a premium appointment on Friday. Does she need to go in person or can i go on her behalf? Because I am presuming they will transfer the biometric card rather than redo the whole process which will require her.
3. If she cannot attend on Friday, what is the process for premium appointments?

Many thanks.

Ankit

Greenie · Guru Joined: 21 Aug 2008 Posts: 6946

1. Yes
2. She has to attend to submit the application and give biometrics again.
3. If she can't attend she will need to cancel the appointment.

ankit0708 · Junior Member Joined: 29 Nov 2011 Posts: 11

My wife went for her appointment today and she has been told that she has to use SET (O).

Just thought I'd share this with this forum.

sushdmehta · Posted: Fri Sep 28, 2012 11:55 am Post subject:

SET(O) for extension?
Or was she told that she qualifies for settlement and should use SET(O)?
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ankit0708 · Junior Member Joined: 29 Nov 2011 Posts: 11

She was told she qualifies for settlement and should use SET(O).

So as long as a dependent has done 2 years on PBS and in the meantime, the spouse changes from PBS to ILR, then the dependent qualifies for ILR as well.

sushdmehta · Posted: Fri Sep 28, 2012 2:29 pm Post subject:

As per the immigration rule 319E, this is only possible when the principal migrant:

(i) has indefinite leave to remain as a Relevant Points Based System Migrant; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.

The general understanding (at least mine) is that "indefinite leave to remain as a Relevant PBS migrant is different from "indefinite leave to remain under long residence by a migrant who happened to be a PBS migrant at such time".

To ensure that a different caseworker doesn't refuse a SET(O) application on the next visit, for the reason I have suggested above, suggest that you contact UKBA to get a clarification on the matter. Do appreciate that the changes are new with no consistency in interpretation as yet.
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Greenie · Guru Joined: 21 Aug 2008 Posts: 6946

Agree with the above. It appears that caseworkers and enquiry line advisors are being very inconsistent with this but one member definitely had a response from settlement ops which said that settlement was not possible before switching on FLR(m)

sushdmehta · Posted: Fri Sep 28, 2012 8:16 pm Post subject:

What do they know
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ankit0708 · Junior Member Joined: 29 Nov 2011 Posts: 11

Guys, I am really confused as are the UK Border Agency staff as well, I think.

I am very unsure as to what form I need to fill in.

Please advise me.

Many thanks.

Ankit

sushdmehta · Posted: Fri Sep 28, 2012 9:56 pm Post subject:

Why not write yourself to the settlement operational policy team explaining your experience and enquire what the immigration rules state with regards to your wife's circumstances and which form should she be using?

Not long ago, the same caseworkers / staff at PEOs were refusing settlement application of dependants of HSMP JR and WP migrants for not meeting the "2 year requirement" - a requirement that never existed and is, to date, only a figment of someone's imagination.
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cy2012 · Junior Member Joined: 10 Aug 2012 Posts: 19

Another link posted by our guru Greenie (http://www.whatdotheyknow.com/request/flrm_or_setm_after_9_july_2012) also confirms the use of FLR(M). But that will probably bring you back to square one, as your wife used FLR(M) in her first visit. I guess that your wife could book another PEO visit with both forms if that is convenient for her. If your wife first give them the SET(O) and explain to them that she were told to use it in the last visit, and if they accept it, she got the ILR straightaway. If they don't, give them the FLR(M). She could print out one of the links and bring it with her in case of need.

ankit0708 · Junior Member Joined: 29 Nov 2011 Posts: 11

Thank you for your email.

As a policy team we are unable to provide advice on individual applications. However, I can clarify the Rules and confirm that based on the information given in your email your wife will not be eligible to apply for ILR until she has applied for further leave to remain as the dependant spouse of a person who is settled in the UK.

There is provision under paragraph 319E of the Immigration Rules for dependant spouses/partners of PBS migrants to apply for ILR at the same time as the PBS migrant, or later when the PBS migrant obtains/obtained ILR as a PBS migrant.

When the PBS migrant obtains ILR under the Long Residency category their partner is no longer eligible to apply for leave as a PBS migrant dependant. The spouse/partner will need to apply to "switch" into the dependant of a person who is settled in the UK category. Those partners who are covered by the transitional provisions (those who were granted leave to enter or remain in the UK under Part 8 of the Rules before 9 July 2012 - see http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part8/transitional-pt-8-app-fm/ ), should apply for FLR under paragraph 284 of the Rules and submit application form FLR(M).

Paragraph 287 of the Rules provides for leave as the partner of a PBS migrant and leave as the partner of a person settled in the UK to be amalgamated to meet the qualifying period for ILR. Therefore, if the partner has completed 2 years qualifying leave, once they have “switched” categories they can apply for ILR on form SET(M).

I hope this information is useful.

Regards

Settlement Operational Policy

ankit0708 · Junior Member Joined: 29 Nov 2011 Posts: 11

So guys, it has been confirmed and this seem consistent at least.

If a person, while on PBS visa, obtains ILR because of long residence, then the dependent has to swtich to FLR(M) before applying for ILR.

The email above was received from UKBA and seems to be consistent with what is on the forum.

However, the staff at home office seem to be clueless about this rule.

Anyway, I am getting my wife to take both forms with both sets of supporting documentation in when she goes.

cy2012 · Junior Member Joined: 10 Aug 2012 Posts: 19

It is not surprising that you get the same reply from the same team, but it is still possible that the staff in PEO may have different understanding. Just explain to them that your wife were told in the last visit to use SET(O), and then hopefully your wife would get her ILR straightaway. Let us know the good news when it is done.

I had a similar case once when I applied PBS dependant visa for my UK born child (I knew I didn't have to, but we had to travel abroad soon, so I applied dependant visa for my child). The immigration advisor in my uni checked the immigration rule and told me that my child probably would have to use a different form (with much higher application fee) rather than the PBS dependant form. He explained to me that, according to the immigration rule (I can't remember exactly what he said, but something like the following words), when applying for an extension of visa together with dependants in the UK, PBS dependant form is only to be used when the dependant was last given entry clearance or leave to remain which my child wasn't. But I filled in the PBS dependant form for my child and asked the staff in a PEO office if that was the right form, a lady clarified with her manager and accepted it, and we got the visa straightaway.

Certainly my case is different, but just to encourage you that there is a chance that your wife could have her ILR straightaway. You won't lost anything when you try it. Good luck!