Settlment of a Dependant

[members]

Dear Senior Members,

I need some advice on current immigration rules/policies regarding the settlement of Relevant Point Based System ("RPBS") migrants' dependants.

Dependant of a RPBS migrant:
According to part 8, paragraph 319AA of the immigration rules, RPBS migrants include Tier 1, 2, 4(General) and 5 (Temporary Worker).

Requirements for indefinite leave to remain:
According to part 8, paragraph 319E(d)(i)(a) of the immigration rules, a dependant of the RBPS migrant must have been living together in the UK in a marriage or civil partnership for at least 2 years if the applicant was granted leave as the spouse of that RPBS migrant under the rules in place before 9 July 2012.

Combination of paragraphs 319AA and 319E(d)(i)(a):
If one read both the paragraphs together, it woud appear that ANY dependant (of a RBPS migrant) granted leave to remain, as a dependant of such a RBPS migrant before the 9th of July 2012, will be exempted from the new rules and subject to the rules in place before 9th of July. Further to that, ANY RBPS dependant would undoubtedly include dependants of Tier 1( PSW), and Tier 4 (General).

The given scenario:
The main applicant is going to apply for settlement under the '10 years long residency' route. He has a wife staying with him (in the UK) since 2006 and the wife's leave to remain will expire at the same time as the main applicant/husband; the wife extended her stay on several occasions (all before 9th July 2012) as a dependant of Student (pre PBS), Tier 4 (General) and finally as Tier 1 (PSW) dependant . All these categories [Tier 1 (PSW); Tier 4(General)] fall under the RPBS definition prescribed by paragraph 319AA above. I know that the 'long residency' category does not allow dependant to be included and thus the wife need to apply for an extension using FLR(M) along with the main applicant's/husband's application for settlement . According to paragraph 319E(d)(i(a), the wife can apply for settlement using SET(M) as soon as she is granted FLR(M) leave because she has already lived longer than 2 years with her husband.

The confusion:
However, the confusion that collides with my understanding is this: from 6 April 2013, "the partner of a points based system migrant not on a route to settlement cannot switch into the partner route and amalgamate their leave as a partner under both routes towards the qualifying period for settlement". As per my understanding, "the partner of a points based system migrant not on a route to settlement" would mean a (former) Tier 1(PSW) and (current) Tier 4 (General) partners. The wife in our given scenario would fall under this category of "partner of a points based system migrant not on a route to settlement".

Is not this conflicting with paragraph 319E(d)(i)(e)?


Please answer the following:

1) Does the wife fall under the old rules in place before the 9th of July 2012?
2) Can the wife use her already-spent 8 years with the husband as a qualifying period of settlement [using FLR (M) first and then SET (M) straight after FLR (M)]?

Your help is, as ever, greatly appreciated.