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Dependant of ILR (long residence) applicant on PBS leave

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geriatrix
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Dependant of ILR (long residence) applicant on PBS leave

Post by geriatrix » Fri Aug 23, 2013 1:14 pm

(Spouse / Partner) Dependant of someone applying for settlement under long residence cannot apply for settlement at the same time (as the main applicant) irrespective of the main applicant's immigration category before such settlement application.

Long Residence and Points Based System Dependants wrote:
4.5.1. Where a relevant PBS migrant gains indefinite leave to remain under paragraph 276B on the basis of Long Residence, their partner will not be able to extend their leave or gain settlement as a PBS dependant and will be required to switch into the partner of a settled person category and apply for limited leave on that basis.

4.5.2. A person granted leave to enter or remain as a PBS dependant before 9 July 2012, whose partner who was a relevant PBS migrant gained indefinite leave to remain on the basis of Long Residence, could have made an application before 6 April 2014, under the transitional provisions in paragraph A280(c), for further leave under Part 8 of the Immigration Rules.

4.5.3. From 6 April 2014, all those granted leave to enter or remain as a PBS dependant, who then wish to apply for leave as the partner of a settled person (including where their partner who was a relevant PBS migrant gained indefinite leave to remain on the basis of Long Residence) are required to apply for leave under Appendix FM.

4.5.4. This is because paragraphs 284 and 295D of the Immigration Rules were amended to restrict switching by PBS dependants who have leave as the partner of a relevant PBS migrant. From 6 April 2014, they are not able to switch into the Rules for partners of settled persons under Part 8. The PBS dependant will either need to apply for indefinite leave under the Points Based System if they can qualify, or apply for limited leave to remain as a partner under Appendix FM.

4.5.5. PBS dependants who have already switched to being the partner of a settled person under Part 8 (or have applied to do so before 6 April 2014) can continue under Part 8 and apply for indefinite leave to remain under paragraph 287 or 295G. Their period of leave as a PBS dependant can be combined with their leave as the partner of a settled person to meet the required qualifying period.




Does a dependant need to apply for FLR(M)?
vinny wrote: Note that both 319C(b) and 319E(b) (also 319H(b) and 319J(b) ) fail because the partner was not granted indefinite leave to remain as a Relevant Points Based System Migrant.
PBS dependant without enough current leave to become eligible for settlement under LR on own merit: Dependant must switch to FLR(M) leave, should do so as soon as possible and definitely before his/her current leave expires.

PBS dependant with enough current leave to become eligible for settlement under LR on own merit: Since a person's leave remains valid until it expires, or is curtailed or the person travels outside the UK subsequent to change in circumstances (PBS partner having gained ILR under non PBS route), the dependant may choose not to switch to FLR(M) and apply for SET(LR) directly as and when eligible. If taking this route, do not travel outside the UK until SET(LR) is submitted.





When to apply for FLR(M)?

1. If dependant's leave is due to expire at the same time as the main migrant or within a short time after main migrant applies for settlement - Apply for FLR(M) at the same time as the main migrant applies for settlement. See Obie's advice to use FLR(FP) form and then vary to FLR(M) later.

2. If dependant's leave is due to expire before main migrant expects to receive a decision on his/her settlement application - You may wish to wait until reference number of the settlement application is received, so that the same can be referred to in the FLR(M) application. See Obie's advice to use FLR(FP) form and then vary to FLR(M) later.

In either case, make sure that it is mentioned in a covering letter that the main migrant is applying / has applied for settlement and provide necessary personal details of main migrant - name, dob, nationality, passport no., settlement application reference no. (if dependant applies after ref. no. has been received - to help UKBA tag the dependant's FLR application to the main migrant's settlement application.

3. If dependant has enough current leave that a decision on settlement application is expected to be received before expiry - You may choose to follow 1. or 2. above or wait for partner's settlement to come through. But do note that your ILR count will start only when you are granted FLR(M) leave - see red text below.





Effect of changes to immigration rules introduced on 06-Apr-14 and qualifying residence period for settlement

PBS dependants of such migrants cannot apply for settlement without switching to FLR(M). Anyone switching to FLR(M) route on or after 06-Apr-14 will be required to spend 5 years on FLR(M) leave with the same partner to be eligible for settlement. In other words, any time spent in the UK prior to grant of such FLR(M) leave will not contribute towards qualifying residence period for the purpose of settlement. More simply, the dependant's ILR count is reset to zero.


Category A: Applied for first PBS leave before 09-Jul-12
If you applied for the first PBS leave before 09-Jul-12 and then switched to FLR(M) before 06-Apr-14: then you are covered by Part 8 of the immigration rules (A280(c)) and the qualifying period for settlement is 2 years. Make sure you fulfill all the requirements for settlement (e.g. - English, LITUK) before expiry of current leave as another FLR(M) application (extension) after 06-Apr-14 will reset your ILR clock.

Category B: Applied for the first PBS leave after 08-Jul-12
If you applied for first PBS leave after 08-Jul-12 and then switched to FLR(M) leave, then you are covered by Appendix FM of the immigration rules and the qualifying period for settlement is 5 years.






When can the dependant apply for settlement?

Category A applicants
1. If main migrant's immigration category before settlement was under PBS - The dependant may be eligible for settlement when the dependant completes the qualifying residential period (2 years) in the UK including stay as dependant of PBS migrant and stay as spouse of settled person (i.e.- on FLR(M) leave) (287(a)(i)(d) and 287(a)(i)(e)).

Category B applicants
The dependant may be eligible for settlement when the dependant completes the qualifying residential period in the UK (5 years) as the spouse of a settled person / British citizen. The period of stay in the UK as a PBS dependant cannot be included in the qualifying residential period for settlement (E-ILRP.1.3).





Which form to use to apply for settlement?
If you switch to FLR(M), use SET(M) to apply for settlement.





Some Category A applicants have been lucky with SET(O)/SET(M) at a PEO.

Dependants under part 5 (e.g. of old work permit (non-PBS) holders) subsequently granted ILR may apply for SET(O) directly.





Child(ren)
Born-abroad child(ren) - Include child(ren) in the FLR(M) and SET(M) form(s), as dependant(s) of adult applicant. The child(ren) will be eligible for settlement only when the FLR(M) parent is.
UK-born child(ren) - Read Q33 - Q38.

There is no residence requirement for minor (under 18 ) children.
Dependent children over 18 may ?? use SET(F) or FLR(O).





Some Cases:
IA355152013 [2014] UKAITUR IA355152013 (30 May 2014)
IA261892013 [2014] UKAITUR IA261892013 (21 February 2014) (seems wrongly decided as there wasn’t a requirement at the time for the applicant to satisfy Appendix FM, just adequate maintenance was sufficient under 284)

Click on the links given above for more / detailed information.
Last edited by geriatrix on Fri Aug 23, 2013 1:49 pm, edited 1 time in total.
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vinny
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Re: Dependant of ILR (long residence) applicant on PBS leave

Post by vinny » Wed Mar 19, 2014 9:20 am

This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

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