discretionary LTR for dependants, me with ILR

[craghav]

I am looking for advice here and truly expect the seniors/experienced/knwoledgeable to help me out this, much appreciated.

I had been on WP/HSMP/Tier-1 before I applied for ILR( myself) and got successfully in July'2011 with the help of advisor.
My family (Wife/Kid) have always been on dependants Visa and they are in UK since 10th December'2007. I
applied for ILR through advisor who didn't advise to apply for dependants' also for ILR along with me
and just told me to sort out the family later once mine is sorted as I had some big absences.

Once I got ILR in July'2011, The advisor applied for Wife/kid's ILR but they got
discretionary leave to remain instead.
The reason I could understand from the UKBA letters to advisor that
since family's was not applied along with me and when family's ILR was applied they were no longer PBS dependants
(because I had got ILR by then), so to save and thinking on family values UKBA decided on discretionary leave to
remain for them.
The settlement path (ILR) for discretionary leave is long (3 years + 3 years) unless they (Wife and Kid)
enter again in UK on depedants' visa ( depandants/spouse of settled person in UK).
I tried to apply for their FLR(M) through PEO, but PEO rejected the application, returned Fees saying switching from
discretionary to FLRM is not possible they will either have stay on this or enter again on dependants visa.

There are alot of questions and presumptions here now .....
Has anybody came across this situation? Has someone else is successful in switch from discretionary to FLR(M) for family?
Please help me in this and let me know... much appreciated
I am very much worried now on family's settlement in UK.

The family is with me since 10th December 2007, so if they go to India and get Dependants visa (settlement visa [dependants
of settled person in UK]) and enter UK, will their (family's) earlier stay in UK (since 10th december' 2007) count?
would I be able to apply for their ILR as soon as they enter UK with dependants Visa?

The rules are fast changing for dependants coming from India as from 9th July'2012, the probationary period is increasing
from 2 to 5 years before they can go for ILR.

Warm Regards
craghav

[geriatrix]

1. one cannot switch from DL to FLR(M).
2. No. No.

Options:
1. Continue on DL until they complete 6 years on DL and then apply for settlement.
2. Return to India and apply for settlement visa before 09-Jul-12 under current rules and then apply for settlement after 2 years from date of entry.
3. Return to India and apply for settlement visa after 08-Jul-12 under the new rules and then apply for settlement after 5 years from date of entry.

[craghav]

Sushdmehta, Thank you very much for very clean reply.

About your answers 1.) I was expecting this answer. I have consulted a solicitor too who is advising about going for judicial review in family case, saying that it was error on part of the advisor who didn't apply (or advised to apply) for dependants ILR along with me and error on part of UKBA too, who granted DL when ILR applied, they should have advised the advisor to apply for FLRM.

The problem in trying to go for JD, is, it will take time and if JD doesn't do in our favour then we will miss the option of 9th July when rules are changing.

Please correct me if wrong, I have read somewhere that if dependants are in UK on valid visa then their previous stay time aggregates and requirement for ILR for dependants of settled person, states that they must be with settled person for 2 years.

Warm Regards
craghav

[Greenie]

Sushdmehta, Thank you very much for very clean reply.

About your answers 1.) I was expecting this answer. I have consulted a solicitor too who is advising about going for judicial review in family case, saying that it was error on part of the advisor who didn't apply (or advised to apply) for dependants ILR along with me and error on part of UKBA too, who granted DL when ILR applied, they should have advised the advisor to apply for FLRM.

The problem in trying to go for JD, is, it will take time and if JD doesn't do in our favour then we will miss the option of 9th July when rules are changing.

Please correct me if wrong, I have read somewhere that if dependants are in UK on valid visa then their previous stay time aggregates and requirement for ILR for dependants of settled person, states that they must be with settled person for 2 years.

Warm Regards
craghav

when you instruct an advisor then essentially their actions are your actions. You can't Judicially review the UKBA on the grounds that your advisor made a mistake (twice). Neither are you likely to suceed in JRing the UKBA on the grounds that they should have corrected your advisors second mistake and told them to make a different application. You also can't apply for JR more than 3 months after the relevent decision.

Time with leave as a PBS dependent and time with leave as the spouse of a settled person can be aggregated for the two years, but only if the spouse/dependent had leave as a PBS dependent and then applied for and was granted an extension of stay as the spouse of a settled person. Discretionary leave is not leave as the 'spouse of a settled person'.

[craghav]

Thanks Greenie and Sushdmehta. Your answers are precise and make sense.

So the only option left for my family is, as replied ealier by Sushdmehta:

2. Return to India and apply for settlement visa before 09-Jul-12 under current rules and then apply for settlement after 2 years
from date of entry.

Only one doubt, please clear it also, is, does it mean that Discretionary Leave (currently wife and kid are on ) has nullified their earlier UK stay
since 10th December 2007 (3 and half years) as dependants of HSMP/Tier1 (PBS)? and this stay will not add up when they go back to india
and come back to UK as dependants of settled person?

Warm Regards
craghav