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gdfk · Newbie Joined: 10 Apr 2012 Posts: 9

Need help.

I recently gained ILR based on long residency (10 years). I was on Tier 1 General visa previously. My wife has been on Tier 1 General Partner visa since June 2010 and her visa is running out next month. Can she apply for settlement on SET(O) (ticking reasons not covered by other application forms) ? or does she needs to make a switch into spouse category FLR(M) ?

Thanks

gdfk · Newbie Joined: 10 Apr 2012 Posts: 9

Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom

287. (a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:

_(d) the applicant was admitted to the UK or given an extension of stay as the spouse or civil partner of a Relevant Points Based System Migrant, and then obtained an extension of stay under paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here;

sushdmehta · Posted: Thu Sep 27, 2012 11:22 pm Post subject:

gdfk · Newbie Joined: 10 Apr 2012 Posts: 9

Greenie · Guru Joined: 21 Aug 2008 Posts: 6949

It is also required if the main migrant was granted ilr under the log residency route and not after 5 years as a PBS migrant. This is because the dependent partner of a PBS migrant can only apply for ilr as a PBS dependent an satisfying the conditions of para 319E of the immigration rules which can only be satisfied if the main migrant is at the same time being granted ilr as a PBS migrant or has already done so. A PBS dependent of a PBS migrant who has applied for ilr under the long residency route does not meet this requirement and therefore has to switch on FLR(M). 319.E was changed on 5th September to make this explicit.

sushdmehta · Posted: Fri Sep 28, 2012 11:49 am Post subject:

gdfk · Newbie Joined: 10 Apr 2012 Posts: 9

Right, I have called UKBA enquiry office 3 times and I am being told that if she wants to apply for settlement, fill SET(O) and tick 'Other purposes or reasons not covered by other application forms' option box.

I have emailed settlement ops. Any idea as to how quick they respond ?

Greenie · Guru Joined: 21 Aug 2008 Posts: 6949

Its all very well them telling you the form but have they told you under what rule she qualifies for settlement?

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

Greenie · Guru Joined: 21 Aug 2008 Posts: 6949

It does matter if the rules don't allow settlement in these circumstances as applications may be refused.

See

http://www.whatdotheyknow.com/request/flrm_or_setm_after_9_july_2012

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

It looks like different departments in HO are interpreting the rules differently. As ankit0708 did not need to pay for his/her first visit and was just told to use a different form, the risk of losing application fee is little.

sushdmehta · Posted: Fri Sep 28, 2012 6:40 pm Post subject:

faz28 · Member Joined: 12 Feb 2011 Posts: 77 Location: MANCHESTER

15Jan · Junior Member Joined: 31 Aug 2011 Posts: 33

gdfk · Newbie Joined: 10 Apr 2012 Posts: 9

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

gdfk · Newbie Joined: 10 Apr 2012 Posts: 9

Seems that the settlement ops team is giving consistent reply to people in similar situation. However, the staff at home office immigration enquiry seem to be clueless about this rule.

If I was to book an appointment for SET(O) lets say and get my wife to take both forms (SET(O) and FLR(M)) with both sets of supporting documentation in when she goes in, would they still accept the relevant one (be it FLR(M))?

gdfk · Newbie Joined: 10 Apr 2012 Posts: 9

My wife was granted ILR today and she filled SET(O). So no matter what the rules say, end of the day it all depends on your individual circumstances.

sushdmehta · Posted: Thu Oct 25, 2012 8:05 pm Post subject: Re: ILR successful

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

Greenie · Guru Joined: 21 Aug 2008 Posts: 6949

Sorry but it really isn't good news for all long residence applicants. The rules clearly do not permit settlement in these circumstances and the OP's spouse was lucky to get a caseworker who does not understand the rules. It would be unwise for anyone to rely on this example because at some point the caseworkers will get to grip with the new rules and such applications will (correctly) be refused.