Indefinite Leave to remain- need urgent advice please

[sophaeyah]

My husband is eligible for ILR this year as per ten years rule and next year September as per five year tier one general migrant rule. I came to UK in June 2010 on tier 1 dependent visa. I completed my two years under dependent category but this visa did not allow me to work as doctor in a training post. In October 2012, I switched to tier two work permit as I managed to get a job as doctor on training. We also switched our two year old son as my dependent.

Since dependent rules have changed in July 2012, the situation has become very complicated for us. We are not sure what would be the right route for us. Since I am not a dependent anymore, do I need to switch to dependent now and under which rule I would fall. I already have completed 3 years in UK. The other problem is the fact that now if my husband applies for ILR under five years rule, does it mean that I will have to apply for his dependent on tier 1 category and then wait five years. We really dont know where exactly we count. As per two year rule, I have spent two years in 2012 but now that I am not in same visa category, its all very confusing.

Any guidance is much appreciated. Thank you so much.

[geriatrix]

You:
1. You cannot apply for leave as PBS dependant from within the UK. You'll need to apply for entry clearance from outside the UK.
2. You may switch from Tier 2 to FLR(M) (i.e.- apply for FLR(M) leave from within the UK) after your husband has received settlement.
3. In either case, the qualification residential period for settlement as a PBS dependant / spouse of settled person / British citizen is 5 years.
4. In either case, any time you have spent in UK before (PBS dependant / Tier 2) will not be counted.


Suggestion:
1. Apply for entry clearance as PBS dependant as soon as you can. Extend PBS dependant leave as and when the time comes (even if at such time your spouse has become a settled person / British citizen). Apply for settlement on the 5th anniversary of your entry in the UK as a PBS dependant (earliest 2018).

Alternatively, continue as a Tier 2 migrant and apply for settlement as and when you qualify on your own merit (earliest Oct. 2017).

Take your pick.


Child:
If the child is born in the UK, then unless travelling abroad before either parent becomes a settled person, a UK born child does not require any form of leave to stay in the UK. Read Q29-Q32.

[sophaeyah]

If I apply from UK for FLR (M), what will be the rules for me? will it be restricted visa which does not allow me to work as doctor in training or unrestricted visa?

[sophaeyah]

The other thing is if I switch to dependent visa now, I would have essentially first entered in 2010 and although there is a break but still my first visa would be starting prior to 2012 rule. Isn't there any provision to count from my entry time. Especially when I would have completed 5 years in UK in 2015.

[geriatrix]

If I apply from UK for FLR (M), what will be the rules for me? will it be restricted visa which does not allow me to work as doctor in training or unrestricted visa?

No work restrictions on FLR(M) leave.

But on a PBS dependant leave you will not be allowed to work as doctor in training, so not the best solution contrary to my suggestion in the response above. So ignore that!

For you to continue employment without restriction (training posts in NHS), best that you wait (remain on Tier 2) until your spouse has been granted settlement, and then switch to FLR(M) ..... if you (at that time) are of the opinion that continuing on Tier 2 and applying for settlement as a Tier 2 migrant is not an option for some reason. Else, continue on Tier 2 (extend Tier 2 when the time comes) and apply for settlement in your own right.

As mentioned earlier, if you take the FLR(M) route then you will be eligible for settlement (at the earliest) on the 5th anniversary of date of issue of FLR(M) leave.

Time spent in UK as a PBS dependant before your changed to Tier 2 cannot be used under any category other than long residence (10 years).

Time spent in the UK as a Tier 2 migrant can only be used if you apply for settlement as a PBS migrant in your own right.

[geriatrix]

Assuming your employing trust will have no issues with your performance and progression in training, and therefore will be willing to provide you with a CoS to enable you to extend your leave as a Tier 2 migrant, this is the quickest route to settlement (Oct. 2017).

If you go the FLR(M) route, then depending on when your spouse is granted settlement and subsequently your are granted FLR(M) leave, you are looking at becoming eligible for settlement in 2018/2019.

[sophaeyah]

Thank you so much for your response. Working as tier 2 makes it difficult to switch to other soecialty so I guess the best route would be FLR M. But we have been told that if you apply for ILR under 5 years rule then I will have to undergo tier 1 dependent route for 5 years before I get eligible to apply. And if ten yrs rule then it would be flr m. We need to be certain before we apply as ideally five year rule suits us considering that applications get processed quickly....

[geriatrix]

But we have been told that if you apply for ILR under 5 years rule then I will have to undergo tier 1 dependent route for 5 years

While I am not aware of any such restriction (that a PBS dependant cannot switch to FLR(M) route after partner is granted settlement), but this impression may have been given to you by someone assuming that you will become a PBS dependant before your spouse applies for settlement as a PBS migrant.

Once your spouse has been granted settlement and becomes a "settled person", then you (a Tier 2 migrant) need to apply for leave as "spouse of a settled person" - if you wish to continue living in the UK as a dependant (and not as a principal migrant).

[geriatrix]

In fact, for doctors / dentists who are in UK as PBS dependants and their current leave imposes restriction on working in training post, it becomes necessary for them to switch to FLR(M) after their partner is granted settlement to become free of the said restriction!!

The current immigration rules make no provision for such immigrants to become free of this restriction when extending their leave as a PBS dependant after the partner is granted "settled status" - leaving them with no option but to switch to FLR(M).

The settlement operational policy team should have addressed this discrepancy when making the changes in 2012, but it appears that they have failed to do so till date.

[sophaeyah]

Thank you so much for clarifying the situation for us.

[sophaeyah]

One more query please, from what I understand the 5 years rule has been introduced for testing genuineness of the relationship... is there a legal way to challenge the rule once I have comoleted 5 years in UK in all visas category?

[Sep08T1Applicant]

One more query please, from what I understand the 5 years rule has been introduced for testing genuineness of the relationship... is there a legal way to challenge the rule once I have comoleted 5 years in UK in all visas category?

Hi sophaeyah,

My case is not exactly similar to you but it is relevant, you can read my query here
I am planning to do that and already ask questions to seniors here. Vinny helped me so far with my queries and I have emailed UKBA and waiting for response. please read my last post read it from the beginning as well. I am also thinking to make a thread which will be people in same situation as their dependants initial Entry clearance as dependant before9th July 2012 and unfortunately got second entry clearance after 9th July 2012.

[sophaeyah]

This just means we shd stay as dependents and not train and work and contribute to taxes and be good citizens. I have friends not working who came after me who will get it quicker just because they chose not to work..... it rocks

[sophaeyah]

please keep us updated

[Sep08T1Applicant]

please keep us updated

I will certainly do that, I am still waiting for response from UKBA, thanks sushdmehta and Vinny, I am just trying to see how far I can get with it

[geriatrix]

Unlike your wife, OP is in the UK as a principal migrant (Tier 2). That resets any previous stay as dependant for settlement application under all immigration categories other than long residence.

I have already mentioned that above.

[geriatrix]

One more query please, from what I understand the 5 years rule has been introduced for testing genuineness of the relationship... is there a legal way to challenge the rule once I have comoleted 5 years in UK in all visas category?

Well, I guess when UKBA introduced the 2 year rule many moons ago, they would have deemed it sufficient to test the genuineness of the relationship. Over the years, it has become apprant to them that the 2 year period is not enough to test the genuineness of a relationship so they have increased it to 5 years.

If they could enforce the 2 year rule, they can enforce the 5 year rule. Simples!

[sophaeyah]

But I had to switch to this status due to their restrictions, which does not mean that I left my husband.

[geriatrix]

So, were you not aware of this employment restriction when you applied for leave as PBS dependant. If you were, you made a conscious decision fully knowing that you'll not be able to work in the UK in training post. Then why blame the UKBA now? If you were not aware, that's your ignorance - not UKBA's fault.

UKBA did not ask you to come to UK. Did UKBA tell you to switch to Tier 2? You switched because you wanted to work in a training post! Is UKBA forcing you to switch to FLR(M)? No, you wish to do it because you may wish to specialize in a different field.

UKBA cannot change / relax / ignore immigration rules for career aspirations of one individual. UKBA is not to blame here.

Sorry for being blunt.

[sophaeyah]

I came to UK because my husband was here. I am not blaming UKBA but just pointing out rules that essentially hinder people who are more talented and who can compete and get training posts even under restrictions. Anyways it doesn't matter in the long run.