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sushdmehta wrote:As Vinny has already stated, the reference to "spouse or civil partner, unmarried or same-gender partner" in 319E(d)(ii)(c) refers to the "immigration status" of the person as "spouse or civil partner, unmarried or same-gender partner" rather than just their "relationship" as "spouse or civil partner, unmarried or same-gender partner".
She can continue to extend her leave as a PBS dependant before her current leave expires - even if you apply for and are granted settlement in Oct. 2013). No need to switch to FLR(M) unless she is a doctor / dentist aiming to work in a training post.
So, the question remains whether she can apply for settlement (at the earliest) in 2013 or after 5th anniversary of her entry as a PBS dependant in 2012.
AIUI, continuous leave = continuous immigration leave either as leave to enter or leave to remain. And your wife had "no leave" between 2011-2012, which is the ambiguous area in context.under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years
I appreciate your concerns and thanks very much for your time sushdmehta, you are quoting reference for the rule before 9th July 2012 which does stress on "continuos leave" - so far this is not in 319E(d)(ii) , please kindly refer discussion I hadsushdmehta wrote:I have read it through and responded only after that.
319E(d)(i)(b) statesAIUI, continuous leave = continuous immigration leave either as leave to enter or leave to remain. And your wife had "no leave" between 2011-2012, which is the ambiguous area in context.under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years
Take a case of a PBS dependant who enters UK first time as a PBS dependant on 01-July-08 and returns home within a week. That person remains outside the UK for (almost) 2 years, applies for entry clearance in May-10 and returns to UK on 01-June-10 just before the main migrant gets ready to apply for settlement. Now, do you think UKBA will grant the dependant settlement just because "he/she has been married" to the main migrant during his/her absence from the UK? They will refuse it ..... but it may be overturned by a judge in an appeal.
I have tried to find the definition of "continuous leave" in context but have been unable to (just as Vinny) and my query to the Settlement Operational Policy team soon after the new rules were published has remained unanswered. But my personal understanding is as I have mentioned above.
Absence of clarity in such (supposedly ambiguous) immigration rule means that the end result is down to how the case worker will interpret the rule (in absence of any clear guideline available to him). If he thinks like me, the application will be refused. If he has the same opinion as you, the application will be approved.
The risk is yours.
Thanks very much, I really appreciate your time and responses.sushdmehta wrote:Has your wife ever applied for leave as a dependant in any immigration category other than as a "PBS dependant"?
Do note that HSMP between Nov-2006 and 2008 is considered "PBS category".
So 319E(d)(ii)(c) does not apply anyway - she has never had leave as dependant in any other (non-PBS) immigration category.Sep08T1Applicant wrote:No, she was Tier 1 dependant since 2009 and before that student visa not my dependant
Yes, I am aware of this and that's the basis of whole discussion, I would really like to thank you sushdmehta for your responses. My initial thoughts and interpretation of the rule is exactly what you have mentioned and got more clarification when UKBA replied but when I saw some discussion in the forum about initial entry clearances as PBS dependant and that gives me a bit of hope but still do appreciate your valuable inputs and at the same time I would like to thank Vinny as well. I did mention this in my old posts that its but unfair and UKBA should accommodate people not on dependant for 1-2 week as in your example quoted above, they could have made some provision for people who lived, worked and contributed towards society and would have considered their previous legitimate PBS dependant stay counted towards 5 years probation period and that is simply not the case.sushdmehta wrote:So 319E(d)(ii)(c) does not apply anyway - she has never had leave as dependant in any other (non-PBS) immigration category.Sep08T1Applicant wrote:No, she was Tier 1 dependant since 2009 and before that student visa not my dependant
The term "dependant" is generally used to refer to spouse or civil partner, unmarried or same-gender partner, and child(ren) of "PBS" migrant, which is covered by 319E(d)(ii)(b).
and refuse the application.Although your wife was granted leave under paragraph 319 before 9 July 2012, she left the UK and allowed that leave to expire. She then re-entered the UK with new entry clearance under paragraph 319 after 9 July 2012, therefore she cannot count her previous leave towards the qualifying period. Under the new rules, she will not be eligible to apply for ILR until she has held continuous leave in this category for a period of 5 years from her last entry clearance date.
You can now understand why UKBA has given you the response they have given - because it is based on their policy guidance.five years – for applicants granted leave as the partner of a PBS migrant under the rules in place on or after 9 July 2012, who have since had continuous leave in that category and, during that period, have met all the requirements of paragraph 319C (a) to (e).