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ILR - Wife on her Own HSMP currently

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

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DEAL99
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ILR - Wife on her Own HSMP currently

Post by DEAL99 » Wed Jan 27, 2010 11:26 pm

Hi,

I entered UK in Jan-2005 and due for ILR now.
My Wife entered UK as my WP dependant in Feb-2005.

However she switched to her own HSMP in Dec-2006 and had a further 3 year extention after applying HSMP extention in Dec-2008.
So she is on her own HSMP as of now.

In between I switched to my own HSMP in Feb-2007. Got further 3 Year Extention in Feb-2009.

Our UK born baby (mid-2007) is on my HSMP dependant Visa.

I am elligible for ILR since this Dec (28 days before Jan-2010)
Queries:

1. Can I include my wife in my ILR application as my dependant ?

2. If not, then whats the best & reasonable way to get atleast our Citizenship together (or nearly same time) if ILR couldn't happen together ?
[Please can you specify all possible options / routes, Thanks]

I hope baby will anyways get my ILR dependant status, considering currently being my HSMP dependant.

Thanks as always
Last edited by DEAL99 on Fri Jan 29, 2010 6:01 pm, edited 1 time in total.

geriatrix
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Post by geriatrix » Thu Jan 28, 2010 12:05 am

1. You cannot include your wife in your ILR application .. because she is not in the UK as your dependent.
2. Your born-in-the-UK child should be entitled to be registered as British citizen as soon as you get ILR. (Section 1(3))

With regards to HSMP, I and my partner are in a similar situation as yours (both HSMP on our own merit; one eligible for ILR in Apr'10 under the (JR) 4 yr. rule and the other eligible for ILR in Feb'12 under the 5 yr. rule). And we are now eager to figure out way(s) as to how we both can get ILR at the same time (in Apr'10).

In my opinion, you have the following three choices:
1. If your wife changes to HSMP dependent before you apply for ILR: If your HSMP was approved in Feb 2007 I believe your extension must have been granted under the Tier 1 (General) criteria. If so, then if your wife changes to your dependent (will have to return to home country to do so), she will have to complete 2 years as dependent in UK before she can qualify for ILR (319E(d)). When she completes these 2 years and qualifies for ILR will depend on how soon she can (re)enter UK as your dependent.
2. If your wife changes to "spouse of a settled person" category after your ILR is stamped: She can switch to spouse of settled person. She will be issued a 27 months visa and after completing 2 years in UK as spouse of a settled person she will be able to apply for settlement (287(a)(i)(a)).
3. If she continues on her HSMP: She will qualify for ILR in Dec 2011 (assuming her time of entry / switching as HSMP applicant is Dec 2006).

Given the fact that your wife will qualify for ILR in Dec. 2011 on her own merit (HSMP) BUT as a dependent / spouse the earliest she can qualify for ILR is Feb 2012 (assuming she goes back home, changes visa and returns in the next 4 days :wink: ), I guess the most convenient and quickest route to ILR for her is to continue her stay as main HSMP applicant.

As per current standard requirements of naturalisation, one can apply for naturalisation after 1 year of ILR. Looks like, at least to me, if you and your wife wish to "naturalise" together then you must either (a) defer your ILR until Dec 2011, or (b)get your ILR now but defer your naturalisation until Dec 2012.

My (very) personal opinion based on my (limited) understanding! If there is another way out, I too would like to know about it.

regards
Last edited by geriatrix on Tue Jan 18, 2011 1:32 pm, edited 1 time in total.

DEAL99
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Post by DEAL99 » Thu Jan 28, 2010 8:56 pm

Thanks for the prompt reply.

I think we will anyways go to appointment together and will take a chance (may be will fill up 2 forms - 1 with me & baby, 1 with all 3)

If they reject her ILR then - we will proceed with either of 2 options:

1 - she will continiue to on her own HSMP and will get her ILR done in Nov-2011 and Citizenship done in Nov-2012 (hopefully :wink: as I could have done mine in dec-2009. but haven't book appointment yet)

2-Or she will switch to my ILR dependant once I get it.. and will go that way (not yet sure if I have understod further processes clearly in this route though) - This helps if she decides to quit job / market conditions hits her.

A qn off the track:
- do I need to give Life in UK for my ILR if My initial HSMP application was approved under rules prior to 6 Nov 2006 ?

Thanks
Last edited by DEAL99 on Fri Jan 29, 2010 6:02 pm, edited 1 time in total.

geriatrix
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Post by geriatrix » Thu Jan 28, 2010 10:02 pm

DEAL99 wrote:do I need to give Life in UK for my ILR if My initial HSMP application was approved under rules prior to 6 Nov 2006 ?
No.
DEAL99 wrote:if My initial HSMP application was approved under rules prior to 6 Nov 2006 ?
From the earlier response it seemed that your wife might have applied before the Nov06 changes and you later on. But in case you also did apply before nov06 changes then it changes things.

Because in such case you might want to consider option 1 from my response above. If your HSMP was approved on basis of rules prior to 07 Nov 06 changes, then your dependent might not be required to fulfil the 2 year residency condition before becoming eligible for ILR ... just like dependent of an HSMP holder whose application was approved before 03 Apr 06 is not required to fulfil this requirement to be eligible for ILR (the only difference between these two dates is the change from 4 to 5 years for ILR, as per my understanding).

That's exactly what we have now starting thinking ..... after seeing posts by pre-apr06 HSMP members who have successfully received dependent ILRs without the dependent having to complete 2 years in UK.

When is your appointment? Let me know how the appointment goes .... and your course of action from thereon.

regards

pkumar
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Post by pkumar » Thu Jan 28, 2010 11:09 pm

Can you show me where this rule is mentioned that wife /partner has to be in "dependent" visa? .. marraige certificate should be enough?

My understanding is that if you wife has stayed with you for around 2-3 years and in UK also for same time ... she will get ILR.

Please show the guidance note to prove your theory?

SKUK
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Post by SKUK » Fri Jan 29, 2010 12:08 am

That's not a theory pkumar. Those are the rules.
319E. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused unless the applicant qualifies for leave to remain by virtue of paragraphs 33E to 33F of these Rules.

Requirements:
(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.

(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who is, at the same time, being granted indefinite leave to remain as a Relevant Points Based System Migrant .

(c) The applicant must have, or have last been granted, leave as the Partner of the Relevant Points Based System Migrant who is being granted indefinite leave to remain.

(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for a period of at least 2 years.

(e) The marriage or civil partnership, or relationship similar to marriage or civil partnership, must be subsisting at the time the application is made.

(f) The applicant and the Relevant Points Based System Migrant must intend to live permanently with the other as their spouse or civil partner, unmarried or same-sex partner.

(g) The applicant must have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, with reference to paragraphs 33B to 33F of these Rules, unless the applicant is aged 65 or over at the time this application is made.

geriatrix
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Post by geriatrix » Fri Jan 29, 2010 12:43 am

pkumar wrote:Can you show me where this rule is mentioned that wife /partner has to be in "dependent" visa? .. marraige certificate should be enough?

My understanding is that if you wife has stayed with you for around 2-3 years and in UK also for same time ... she will get ILR.

Please show the guidance note to prove your theory?
Wow! Looks like I ticked you off by using the words "dependent visa"!! :D
Anyhow, like SKUK said, it isn't a theory! And proof has been included the very first response of mine. I had, in my response, provided the link(s) to the relevant immigration rule(s) - which you failed to notice.

See Can I include my family on my application? to understand who can be included as "dependents" of HSMP migrants. Also see How dependants can come to the United Kingdom to understand who all can be termed as Tier 1 (General) dependents.

SKUK has already quoted the Immigration rule 319E which is applicable to dependents of both Tier / PBS system and erstwhile HSMP migrants whose approval was based as per rules introduced on 05Dec06.

Please see Immigration rule 196D which is applicable to dependents of HSMP migrants whose HSMP approval was based on rules in place until 07Nov06. In particular, read 196D(v) which states:
(v) was admitted with a valid United Kingdom entry clearance for entry in this capacity.
Come to think of it, were you under the impression that spouses are not dependents and vice versa? That could explain the confusion!!

I hope the proofs help clear the cloud.

regards
Last edited by geriatrix on Fri Jan 29, 2010 3:32 pm, edited 1 time in total.

DEAL99
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Post by DEAL99 » Fri Jan 29, 2010 8:22 am

My wife got her HSMP initial approval in Sep-2006
I got initial approval in Nov-2006. Yes Both based on rules prior to Nov-2006 But later than Apr-2006. Whats your suggestion in this case ?

Also Can't she do the in-country switching from HSMP -> HSMP Dependent ?
Last edited by DEAL99 on Fri Jan 29, 2010 6:03 pm, edited 1 time in total.

DEAL99
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Post by DEAL99 » Fri Jan 29, 2010 10:21 am

Also, if we opt for option 1 as suggetsed by you and if the home country is India then which category will be applicable for her: (below categories are from vfs-in site)


Work permit/HSMP dependant

Dependant of tier 1 general applicant

Dependant of tier 1 general applicant with HSMP approval letter (transitional arrangement)

geriatrix
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Post by geriatrix » Fri Jan 29, 2010 4:46 pm

DEAL99 wrote:My wife got her HSMP initial approval in Sep-2006
I got initial approval in N0v-2006. Yes Both based on rules prior to Nov-2006 But later than Apr-2006. Whats your suggestion in this case ?
Looks like we are in the same boat!

Send an email to IEB (Immigration Enquiry Bureau) and ask if your dependent needs to complete any residential period in UK before becoming eligible for ILR. Mention that you were on WP earlier but have current leave to remain as HSMP migrant and covered by the HSMP Forum Ltd. (extension of stay) Judicial Review 2008. No need to mention in this email that your spouse is also on HSMP - just enquire if there is any residential time restriction for your dependent to qualify for ILR.
DEAL99 wrote:Also Can't she do the in-country switching from HSMP -> HSMP Dependent ?
I don't think so because the Immigration rule (196D(v)) requires the dependent to have a vaild entry clearance in that capacity (i.e.- EC as a dependent). The best place to check this too would be IEB.

regards
Last edited by geriatrix on Fri Jan 29, 2010 5:03 pm, edited 1 time in total.

geriatrix
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Post by geriatrix » Fri Jan 29, 2010 5:00 pm

DEAL99 wrote:Also, if we opt for option 1 as suggetsed by you and if the home country is India then which category will be applicable for her: (below categories are from vfs-in site)


Work permit/HSMP dependant

Dependant of tier 1 general applicant

Dependant of tier 1 general applicant with HSMP approval letter (transitional arrangement)
I had sent emails to VFS application centres in North, South and West enquiring about which form and guidance should be used to apply for HSMP dependent and the associated application fee with the following results:
- No response from the West centre till date.
- The South centre has advised VAF2 form and fee of 17K something.
- The North centre has replied back that they are unable to advise as they do not have adequate information regarding the Judicial Review and suggested that I email my queries to British High Commission.
I will email BHC before Monday. Let's see if they respond and what their response will be.

I have also sent a message to UKVisa Services using their Enquiry Form enquiring about which application form and guidance should be used to apply for Entry Clearance as a dependent of HSMP migrant whose approval was before 03-Apr-06 and thus covered by the ILR JR. Yet to receive a response.

Given the fact the new citizenship laws will be gradually introduced by the govt. from next year on, we (I and partner) are sceptical about one of us waiting until 2012 to get ILR. So we are very keen that, if there is a way for both of us to get ILR at the same time, we get it over with.

regards

DEAL99
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Post by DEAL99 » Fri Jan 29, 2010 5:51 pm

For the very same reason, we are also thinking of switching herself to my dependant before ILR.

I called PEO in the morning. They mentioned below answers to my queries:

- there will not be such 2 year requirement (pre-ILR) if she switches to my dependant now. [ checked with 3 calls/officers ]

- I have to give Life in UK [ Checked with 1 call/officer ] -> still not able to confirm it. although home office link says I don't.

- she needs to go back and do EC.

Can you please keep me posted @ replies to all your enquiries. We are very much in the same boat mate!

By the way I got an appointment for Feb last week today - 3 persons :roll: . So in our case - we need to move very fast now. I noticed they changed description of application type - I booked for 'SET(O) excluding long residency'. Hope that's right ?

(Its very difficult to travel on such a short notice - specially when you have baby. In our case it is the worst - as we are just back from India holiday of 5 weeks - could have easily done it. Thats the reason I couldn't apply for ILR in dec)

geriatrix
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Post by geriatrix » Fri Jan 29, 2010 6:15 pm

DEAL99 wrote:I have to give Life in UK [ Checked with 1 call/officer ] -> still not able to confirm it. although home office link says I don't.
For those who applied for HSMP approval between 03-Apr-06 and 07-Nov-06, both the UKBA website and the HSMP Forum judicial review (settlement) policy document (under para 4) clearly state the following:
Whilst this group will therefore have to complete five years continuous residence before being eligible for ILR they will not be subject to a knowledge of language and life in the United Kingdom test.
To be on the safe side, carry a printout of the policy document with you when you go for your ILR appointment.

regards

geriatrix
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Post by geriatrix » Fri Jan 29, 2010 6:34 pm

DEAL99 wrote:Its very difficult to travel on such a short notice - specially when you have baby. In our case it is the worst - as we are just back from India holiday of 5 weeks - could have easily done it.
True! Even I am uncomfortable that one of us will have to undertake a 3 week trip just for this. But the benefits outweigh the risks, bigtime!

With lack of detailed information available regarding the implementation of the new citizenship laws, it is unclear what the impact will be for people who are not settled (or made an application for settlement) before the new laws kick in. From what little I have read on the subject it is my understanding that any person who's not settled (or made an application to become one) before the law is introduced it is going to be a rather long and bumpy road to citizenship. Even if people come together and file a case against implementation (just as HSMP Forum did), any resulting reconciliatory effort (if any) will take atleast 1-2 years to be introduced. So I have been asking myself time and again - is it worth waiting for all this trouble or should we take the (most) easy way that is available! It's just a matter of 3 weeks trip back home ... but saves a *lot" of trouble that we might get into in the near future.

For us, the first ILR is due in May 2010 and the earliest we can apply is mid-April. Still some time for one of us to rush back home, get the visa sorted and come back and apply for ILR.

Think it over. If your personal circumstances permit, my personal suggestion would be that you both should also consider taking this route for your wife's ILR.

All I am waiting for is to get a confirmation from UKVisas / BHC on which application form to use (VAF2 or VAF10) so that I can arrnage for the documentary evidence accordingly.

regards

pkumar
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Post by pkumar » Fri Jan 29, 2010 7:06 pm

Thanks guys .... I was wrong ... may be very reluctant to accept the fact :) ....

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Post by geriatrix » Sun Jan 31, 2010 3:48 pm

Having read through some of the old posts regarding EC for dependents of HSMP migrants, it seems to me that for a dependent EC application:
1. VAF2 form and associated fee of 17.2K (as on date) is applicable only if the main HSMP dependent had his further leave to remain granted before 01 Apr 2008 and therefore has a current "HSMP migrant" vignette on his passport at the time of dependent's EC application.
2. VAF10 form and associated fee of 54K (as on date) is applicable if the main HSMP applicant has had his further leave to remain granted after 01 Apr 2008 and therefore has a current "Tier 1 (General) migrant" vignetter on his passport at the time of dependent's EC application. In this case, the dependent is required to fulfil all criteria as prescribed in the Tier 1 dependent policy guidance (e.g.- maintenance fund).

It seems to be an international scam being run by UKBA!! UKBA in UK stamps passports of HSMP migrants with Tier 1 (General) vignette irrespective of whether they apply for FLR under JR ruling or otherwise. And then UKBA at overseas posts (BHC) demand Tier 1 application fee from the dependents of HSMP migrants when the dependents apply for EC - conveniently saying if the main applicant has a Tier 1 stamp, the dependent must pay Tier 1 fee. Does the In-country HSMP migrant asks that his passport be stamped with Tier 1 (General) Migrant instead of HSMP Migrant? No! UKBA does it .... and takes advantage of it (or so it seems). :evil:

I fail to understand understand why dependents of HSMP migrants were (and still are) being advised by BHCs to use the VAF10 form when
a) the Immigration Rules for dependents of HSMP migrants (194-196F) are clearly different from the ones for PBS dependents (319A-319K).
b) Judicial Review has determined that all HSMP migrants who received their approval as per rules in place prior to 07 Nov 2006 must be granted extension as per the old rules and that the immigration status of their dependents would follow that of the main HSMP applicant.

Given the time constraint, I don't think I would want to chase up with BHCs for long on this issue but will give it a couple of shots! But let's see what BHC Delhi and BHC Chennai have to say first. I have sent emails at both locations.

regards
Last edited by geriatrix on Wed Feb 03, 2010 7:20 pm, edited 1 time in total.

DEAL99
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Post by DEAL99 » Mon Feb 01, 2010 1:32 pm

My stamp after the extension says: Tier 1 General Migrant.
However the FLR letter says the leave is granted under the Old HSMP rules i.e.: Rules after APR 2006 but prior to 7 NOV 2006.

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Post by geriatrix » Wed Feb 03, 2010 7:26 pm

I applied for extension in Apr/May 2008 just weeks after the JR judgement. But since UKBA had not come up with the policy document / HSMP (Tier 1) FLR form then, I had mentioned in the application that I am covered by the JR judgment but had also provided evidence to prove that I met Tier 1 criteria as well. As a result, the letter I received back states that the application was approved under the Tier 1 criteria. And the passport was stamped with Tier 1 (General) vignette.

The letter, therefore, will do me no good to prove that I am covered by (extension of stay) JR! But I am hoping that the UKBA policy document will do the trick.

regards

Werner
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Post by Werner » Mon Aug 16, 2010 11:55 am

Sushdmehta

Thanks for all the selfless effort you are putting into this forum.
Because in such case you might want to consider option 1 from my response above. If your HSMP was approved on basis of rules prior to 07 Nov 06 changes, then your dependent might not be required to fulfil the 2 year residency condition before becoming eligible for ILR ...
I would like to know if you have had confirmation of the above yet, as we have case similar to yours.

I (presently on my own HSMP-Tier1) would like to apply to be a dependant on my wife's HSMP-Tier 1 (applied Jan 06), as she is already eligible for ILR.

Would I then be granted ILR (and citizenship after a year) at the same time as she is?

Thank you!

geriatrix
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Post by geriatrix » Mon Aug 16, 2010 12:36 pm

Experienced first hand!

1. Had trouble convincing BHC to accept application on VAF2 and pay associated HSMP dependent fee (significantly lower than Tier 1 dependent fee). Took me a week to convince BHC that their demand for VAF10 and Tier 1 fees was unlawful.
2. Waited for more than 6 weeks for BHC to consider the dependent application and arrive at a decision. Sent a formal complaint (email) to ECM at BHC complaining about the delay without any lawful reason (wanting dependent to apply under Tier 1 rules and pay more money). Received passport with visa stamped within 48 hours.
3. Applied for ILR with dependent at PEO Croydon within 3 days of entering UK as migrant+dependent. Read a jist of what happened on the day (in brief) here.

Moral of the story - Make yourself aware of the rules and don't let anyone take you for a ride.

See also ILR Success - 13/05/2010 Croydon. Main applicant only.. and Got ILR with family at Croydon BUT after a drama!.

Also, I can confirm that the OP (Deal99) also successfully received ILR along with all dependents within weeks of spouse + children entering UK as OP's dependents.


regards

geriatrix
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Post by geriatrix » Mon Aug 16, 2010 1:50 pm

Werner wrote:Would I then be granted ILR (and citizenship after a year) at the same time as she is?
ILR query answered (hopefully to satisfaction) but for citizenship query need more information regarding your stay/immigration history in the UK (and your spouse's).


regards

Werner
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Post by Werner » Tue Aug 17, 2010 1:09 pm

Sushdmetha

Thank you for your speedy and clear response. I will let you know how it went!

Regards
Werner

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