ilr for tier 1 dependent

[flower2012]

Hi there, i am new user of this forum. I have confusion whether to include my wife in set o form for ilr or should apply for flr(m) for extention plz help.
My route is hsmp 11.09.2007
G tier 1 in 11.09.2009
Now due for. Ilr in aug my visa ex on 11.09.12
My wife have G tier1 dependent. Stamp 10.10.2010
She came to uk on 31.10.10
Her visa expire with me same date on 11.09.12
in this case when i will apply for ilr she will be about 1 to 2 months short from 2 years.
I call ukba they said that she need to apply for extension first then when her 2 years completed then she can apply for ilr.
But one of the solister said that she can apply with me for ilr.
Plz help me. Thanks

[Lucapooka]

She came to uk on 31.10.10

.......and therefore is eligible for ILR at the beginning of October 2012. After you are granted ILR she mush apply for leave to remain using FLR(M). Then she can apply for ILR in October.

The UKBA are correct and your solicitor is incorrect (perhaps it was not made clear that you are now Tier 1 rather than HSMP)

[geriatrix]

There has been a case posted recently (and the only one till date) where a dependant was granted settlement at the same time as the main migrant even though the dependant was falling short of the 2 year qualifying period by 10 days.

If my calculations are correct, your wife will be short by approx. 80 days if you decide to apply 28 days before your 5th anniversary (11-09-2012).

The law states 2 years and the guidance doesn't specify any concession in this regard for dependants, so "how much less than 2 years" is good enough to be acceptable for settlement (at the same time as main migrant) is essentially down to caseworker's interpretation.

It can be argued that when main migrants can apply for settlement 28 days before completing the 5 year qualifying period, then why can't dependants be included in the settlement application if they fall short by no more than 28 days of completing the 2 year qualifying period. A valid argument (IMHO) but whether a caseworker will agree to it or overrule you, is down to him/her or, if referring to a senior caseworker / manager, what instructions he receives.

Some people may argue on the same lines to put forward a case where there is a delayed entry of dependants by no more than 3 months from date of issue of dependant EC. IMHO, this one is unlikely to succeed.

In a nutshell, there is a risk of being refused / being told that the dependant is not eligible. Your decision whether you wish to take the risk.

[flower2012]

Thank you very much for your reply. I will appricate if some one share experiance of same case. Just 1 month short any chance to cut cost of applyi.g again..

[geriatrix]

Hi there,

I am in the same boat but by the time i will apply for ILR my will short about 1 and half month. Is it okay to first apply myself on same day basis and then post her case. then the time will be short by 1 months..

Thanks in advance please advice

[geriatrix]

PBS dependants cannot apply for settlement separately using SET(O). If the dependant does not qualify for settlement at the same time as the main migrant or is not included in the settlement application for any other reason, then the dependant must switch to FLR(M) leave and apply for settlement, as and when eligible, using SET(M).

(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.

[flower2012]

Thanks for reply.

In this case what is the best and money save option. Can I include my wife with me on same day . Are they going to hold my application or will refuse it.

and second option can i post it last day

[geriatrix]

If applying in person, it may be best if you attend the PEO at Solihull where, based on the information posted on the forum, caseworkers first check the eligibility and then ask the applicant(s) to pay the fees.

Alternatively, consider applying by post. Given that postal settlement applications can take a few months to decide, it may be sometime before CW sees your application and may decide to ignore the date of application and base his decision with regards to your dependant's time in the UK on the "date of decision" rather than "date of application".

[flower2012]

thank you very much for your detail reply.

If i apply same day and include my wife in my application if they refuse then in this case can I apply only for me on that day for ilr or

will see if i can post it. i think post is best option.

but i am just wondering if they refuse me for postal application what will happen.

thanks again

[geriatrix]

When does your dependant's current leave expire?

[flower2012]

with me 11/09/12
pleas find all datils in strat of this post.
thanks

[geriatrix]

If a decision on your dependant's application for settlement is reached after 11-09-12, then she will be given the right to appeal. Appeal may be submitted within 10 days of receiving the refusal. If dependant appeals, the PBS dependant leave will remain extant until all appeal options are exhausted.

If you do not wish to appeal, then dependant will become an overstayer in the UK on the 11th day since receiving the refusal. Any stay in the UK as an overstayer for more than 28 days will affect entry clearance application(s) in the future.

Since you'll be a settled person by then, dependant will not be eligible to apply for leave to remain as a PBS dependant. And FLR(M) application requires valid leave, i.e.- out-of-time application will be refused.

[flower2012]

Thanks again mate

if i post application 10.09.12 they will recvd 11.09.12 and i think by the application reached for decision should be the eligible time for my dependent to apply for ilr as she will be eligible to apply for ilr after 19.9.12 cz her leave expire with me on 11.09.12. I know u cannot give 100% gurantee but i need your advice . I think she short 7 days for that time it will be unusual to refuse! . But i have no idea by law they cab . Please advice.

[geriatrix]

Reading these posts may be useful.