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Options when a PBS dependent makes a mistake and applies FLR

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).


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marcnath
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Options when a PBS dependent makes a mistake and applies FLR

Post by marcnath » Fri Jul 28, 2017 4:54 pm

Starting this as a separate debate topic (not a question)'from a different post (indefinite-leave-to-remain/eligibility- ... 36018.html)
CR001 wrote: @marnath, the OP has FLR(M) now and therefore no longer possible to switch back to PBS dependent visa. A person cannot combine PBS dep and FLR(M) time to make up 5 years.
You are not reading the rules correctly.
This could be an interesting discussion. Happy to be pointed out that I am wrong :)

From the immigration rules Section 319C:
Requirements:
(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:
(iv) has become a British Citizen where prior to that they held indefinite leave to Remain as a Relevant Points Based System Migrant and where the applicant is applying for further leave to remain, or has been refused indefinite leave to reamin solely because the application has not met the requirements of paragraph 319E(g), and was last granted leave:
(1) as the partner of that same Relevant Points Based System Migrant,
==> The OP in the referred post meets this requirement

Then,
(h) An applicant who is applying for leave to remain must not have last been granted:
(i) entry clearance or leave as a:
(a) visitor, or
(b) short-term student or short term student (child); or
(c) parent of a Tier 4 (child) student
(ii) temporary admission; or
(iii) temporary release.
==> None of these disqualifications apply

Based on the above, a FLR(M) holder could switch back to PBS dependant. What am I missing ?

Once he/she gets a PBS Dependent leave, then Section 319E applies for ILR.
Requirements:
(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.
==> So this is applies
(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):
(ii) If (i) does not apply, the specified period is a continuous period of 5 years, during which the applicant must:
(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,
(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e), and
(c) have spent the remainder of the 5 year period, where applicable, with leave as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules.
==> So, as per 319E(d)(ii)(c), there is no restriction on combining categories - just that has to have been the partner of the same person throughout. So, FLR(M) can be counted towards ILR based on PBS dependant - am I reading this wrong ?

Of course, the earliest someone can switch is 28 days before a leave expires.

But what this seems to indicate is that if a PBS dependent accidentally applies FLR(M) (I wish HO/UKVI would advise them to vary rather than grant it), rather than wait of 5 years of FLR(M), they could switch back to PBS dependent at the end of three years and then apply for ILR as a PBS dependant - getting ILR two years earlier.

It seems odd that it is possible, but that is my reading of the rules.
My comments are in no way meant to be advisory. I have no professional knowledge of immigration. These are based on my own experience, convictions and personal interpretation of publicly available information.

secret.simon
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Re: Options when a PBS dependent makes a mistake and applies

Post by secret.simon » Fri Jul 28, 2017 5:41 pm

Prima facie, your interpretation does seem possible. I will have to read the text in more detail before I comment further. But I will highlight two caveats in case your interpretation gets some people's hopes too high.

a) The main applicant must have obtained his ILR through a PBS application. That rules out spouses of people who got their ILR via ILR(LR). They are obliged to go through the FLR(M) route.

b) An applicant who is on the FLR(M) route can only get ILR via the spousal route by spending five years on the FLR(M) route. That is specified in Section E-ILRP.1.3 of Appendix FM of the Immigration Rules.
E-ILRP.1.3. The applicant must at the date of application have completed a continuous period of at least 60 months with limited leave as a partner under paragraph R-LTRP.1.1.(a) to (c) or in the UK with entry clearance as a partner under paragraph D-ECP.1.1.; or
So, your interpretation would only apply to the PBS dependent spouses whose applicants subsequently acquired ILR via the PBS route and then who accidentally applied for or were incorrectly issued an FLR(M) visa.

You may be quite clear on this, but just spelling out in summary for people who get their hopes too high too quickly.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

Anjali87
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Re: Options when a PBS dependent makes a mistake and applies

Post by Anjali87 » Mon Aug 21, 2017 12:54 am

Pleas help, I am in exact same situation as quoted

I was a PBS dependent and unknowingly applied for FLR (M) instead of extending by PBS route. My partner acquired ILR via the PBS route. How can I switch back to PBS, any advice please?

KenBossini
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Re: Options when a PBS dependent makes a mistake and applies FLR

Post by KenBossini » Wed Aug 23, 2017 5:34 pm

marcnath wrote:
Fri Jul 28, 2017 4:54 pm
Starting this as a separate debate topic (not a question)'from a different post (indefinite-leave-to-remain/eligibility- ... 36018.html)

This could be an interesting discussion. Happy to be pointed out that I am wrong :)

Hi Experts,

Can you please provide links to:

a. PBS dependent application form
b. eligibility criteria to apply as PBS dependent

Thanks,
K.

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CR001
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Re: Options when a PBS dependent makes a mistake and applies FLR

Post by CR001 » Wed Aug 23, 2017 6:33 pm

KenBossini wrote:
Wed Aug 23, 2017 5:34 pm
marcnath wrote:
Fri Jul 28, 2017 4:54 pm
Starting this as a separate debate topic (not a question)'from a different post (indefinite-leave-to-remain/eligibility- ... 36018.html)

This could be an interesting discussion. Happy to be pointed out that I am wrong :)

Hi Experts,

Can you please provide links to:

a. PBS dependent application form
b. eligibility criteria to apply as PBS dependent

Thanks,
K.
Please start your own topic if you don't already have one and post in the correct sub forum. This is a discussion topic, not a seeking advice topic. Google is helpful too.
Char (CR001 not Casa)
In life you cannot press the Backspace button!!
Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

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