Set(M) Qualifying period and continuing residence

Posting for a friend, she is Indian and husband is Brit.

She was on Spouse Visa (5 year route) since Sept 2016. Five years for Set(M) finishes in Oct 2021. But she was with parents in India due to family emergency with her mother during COVID-19. She couldn’t apply for ILR from India. So she applied for entry clearance which was granted as a spouse again from October 2021. She had been in the UK since. Her 30 months are up this month. I suggested to apply for Set(M) now as she has spent 60 months and then some as spouse of a British citizen.

She thinks she can’t.

Questions:
1. Can she combine her total time since 2016 till 2024 on spouse visa for qualifying period? Because she was here on 30 months entry clearance, then further 30 on leave to remain (where almost a year was in India) and then got 30 on entry clearance as spouse again. So two separate entry clearances as spouse of same person.

2. Will her long time away (~300 days) in 2021 play against her in terms of continuous stay in the UK?

She meets all other requirements. Is there a guidance on how qualifying period, continuous stay etc are calculated for spouse to ILR?

Thank you!

I believe when she applied again from outside, her residency has been broken.

Please note that there's no absence limit on how long the spouse of a settled person/British can spend outside the UK. However, the idea is to make the application from the UK (FLR) , not outside (LE). She reset her clock when she did that.

so in my opinion, she has another 2.5 years to go FLR then ILR.

Ticktack wrote: ↑

Mon Jul 15, 2024 2:48 pm

I believe when she applied again from outside, her residency has been broken.

Please note that there's no absence limit on how long the spouse of a settled person/British can spend outside the UK. However, the idea is to make the application from the UK (FLR) , not outside (LE). She reset her clock when she did that.

so in my opinion, she has another 2.5 years to go FLR then ILR.

This is incorrect. This issue is not about applying from inside or outside the UK. Her continuous residence is only broken if her visa ran out while being outside the UK and she failed to apply for a new entry clearance within 14 days of her visa expiring. If she held a valid visa or applied for entry clearance before visa expiry or within 14 days of expiry, then her continuous residence is maintained.

zimba wrote: ↑

Mon Jul 15, 2024 4:35 pm

Ticktack wrote: ↑

Mon Jul 15, 2024 2:48 pm

I believe when she applied again from outside, her residency has been broken.

Please note that there's no absence limit on how long the spouse of a settled person/British can spend outside the UK. However, the idea is to make the application from the UK (FLR) , not outside (LE). She reset her clock when she did that.

so in my opinion, she has another 2.5 years to go FLR then ILR.

This is incorrect. This issue is not about applying from inside or outside the UK. Her continuous residence is only broken if her visa ran out while being outside the UK and she failed to apply for a new entry clearance within 14 days of her visa expiring. If she held a valid visa or applied for entry clearance before visa expiry or within 14 days of expiry, then her continuous residence is maintained.

Thank you both. Got more info:

She applied from outside UK, 2 weeks before her previous spouse visa expiring. This was in person biometric appointment. The outcome was 2 months later as a new entry clearance as Spouse of British citizen again.

So in total she has spent including this month, 90 months in the UK as a spouse. First 30 were FLR(M)? she switched from PBS dependent to spouse in 2016. Then 30 months later did extension (FLR(M) again?) and then had to get entry clearance as above and spent 30 months as spouse (leave to enter) this time. Between second FLR(M) finishing and new LTE as spouse, she was outside UK for ~300 days due to family stuff.

Does this help? Change anything?

If she spent 60 months under the 5 year route, she can apply for ILR now. The family route has no absence limits at all and it seems she maintained her continuous residence

Thanks Zimba! Would you happen to know if the “clock” on 60 months is counted from when she was on spouse category or you go reverse from the date of application to 5 years?

I can’t find any guidance notes on this. The only category where it’s so difficult to see guidance in plain text!

Butterflyeffects wrote: ↑

Mon Jul 15, 2024 8:30 pm

Thanks Zimba! Would you happen to know if the “clock” on 60 months is counted from when she was on spouse category or you go reverse from the date of application to 5 years?

I can’t find any guidance notes on this. The only category where it’s so difficult to see guidance in plain text!

Figuring out when the qualifying period started is not the same as figuring out how the qualifying period is calculated when ILR is being considered. The qualification period starts from the point your spouse switched in the UK in 2016. This means she has been eligible for ILR since 2021.

However, at the date of the ILR decision the caseworker will count her qualifying period by counting backwards. That is because the rules require that she has had 60 months of continuous lawful period up to that point.