Spouse of ILR who was initially a PBS dependant then Tier2

[el_dr]

Hello,
I'ld be grateful for some advice on my current situation.

I am eligible for ILR through 10 year long residence next year. My spouse originally came to the UK in 2010 as a Tier 4 PBS dependant, then subsequently switched within the UK to Tier 1 PSW dependant. Since she is a doctor and PBS dependants are not allowed medical specialisation posts within the UK, she has had to switch onto Tier 2 (main applicant) after receiving a specialisation job offer.

So my questions are, Once I have obtained ILR through Long residence next year:

1. Will she be able to apply as dependant of a settled person? (i'm aware she is not to apply at the same time as I will because of the long residence restriction)
2. If yes, since she came to the UK initially before July 2012, will the 2 year rule apply to her or the 5 year one? ( Remember she has already spent more than 2 years as my dependant when I was a PBS migrant but subsequently changed to her own Tier 2). Below is a small summary of her Immigration history

mid 2010- mid 2011: Tier 4 PBS dependant
mid 2011- mid 2013: Tier 1 PSW PBS dependant
mid 2013 onwards : Tier 2 Main applicant

3. Which form should she be applying on?

[vinny]

See also ILR as a dependant of long residence rule.

[el_dr]

Thanks. This doesn't clarify the situation if my spouse used to be my dependant then swapped onto her own tier 2 though. Would time spent initially as dependant count and hence pre-July 2012 rules apply?

[vinny]

No, because she is currently a Tier 2 holder and not a dependant.

[Amber]

If not a PBS dep then will not benefit from transitional protection and will be subject to the new rules, financial requirement and 5 years to settlement.

[el_dr]

Many thanks for your replies. Would time spent initially as PBS dependant count towards the 5 years entitlement?

[vinny]

No (E-ILRP).

[el_dr]

If not a PBS dep then will not benefit from transitional protection and will be subject to the new rules, financial requirement and 5 years to settlement.

Many thanks for all of your replies. The guidance is a bit unclear (or may be I'm not reading it right) - From the extract below from the transitional immigration law, I understand that for the pre-July 2012 rules to apply, the spouse needs to:
1. have applied as a dependant before July 2012 (as mine did)
2. not have had an expiry of his/her leave by more than 28 days (her residence in the UK is continuous).

From this, I understand that she needs to have applied as a dependant before july 2012 and not have had any expiry of leave of more than 28 days. I can't see that she needs to have been a PBS dependant at the time of application. COuld you please clarify??

2.1 Applicants granted or who applied for leave under the Rules before 9
July 2012
A person who meets the following criteria, in one of the categories
specified below, will remain subject to the Immigration Rules in force as at
8 July 2012 until settlement (the grant of indefinite leave to remain) even
where the application is granted on or after 9 July 2012:
(i) to a person who made an application before 9 July 2012 under Part 8 of
the Immigration Rules which was not decided by 9 July 2012; and
(ii) to applications made by a person who is in the UK and had been granted
entry clearance or limited leave to remain under Part 8 following an
application for initial entry clearance or leave to remain under Part 8
submitted before 9 July 2012 and this leave is extant where this is a
requirement in Part 8.
NB - Where Part 8 requires extant leave a person will be able to access a
consideration if their leave has expired by 28 days or less. If a person‟s
leave has expired by more than 28 days they will not qualify under
transitional arrangements).

[el_dr]

This post from Greenie (Guru)- (available at http://www.immigrationboards.com/viewtopic.php?t=105363) also supports my opinion above. What do experienced members think?

2. If you applied for and were granted either leave as the spouse/partner/fiance of a settled person/British citizen or as a PBS dependent before 9th July 2012, you will still be subject to the two year probationary requirement and not the new 5 year probationary requirement. When you apply for ILR the current rules in your category will apply for you. This is the case even if you have to make another application for 'leave to remain' before qualifying for ILR for example

- PBS dependent needs apply for further leave so that their spouse can complete his or her 5 years as a PBS migrant,

- a fiance has to apply for further leave as a spouse once the marriage has taken place,

- a spouse of a settled person does not pass the Life in the UK test so needs to apply for further limited leave before applying for ILR

In all of the above scenarios as long as the application which resulted in the original grant of leave as a spouse/partner was made before 9th July 2012, the 2 year probationary period, and (for partners of settled persons) the current accomodation and maintenance reqiurements, will continue to apply.

[vinny]

The transitional provisions are not applicable because Tier 2 is not under Part 8.

[el_dr]

Many thanks for this vinny. Makes more sense now. What if she was to switch back onto Dependant of a PBS migrant just prior to applying for ILR. Would the pre-July 2012 rules apply given that her initial Leave to remain as a PBS dependant was before July 2012 and that she then completed 2 years?

[vinny]

No (319E(d)).