SET M - Greater than 180 days gap

[trueindian2013]

Hi

I am applying ILR for my wife for settlement (I got ILR in Oct 2012). She completed 2 years. She got entry clearence as Tier 2 ICT dependent in June 2010. There is no break in her leave (dependent visa).

However, she went to India on maternity and stayed there for about 10 months.

Here is the immigration histroy:

Jun 2010 - Got her Tier 2 ICT dependent Visa
Jan 2011 - Got extension for dependent visa up to Nov '12
Jul 2011 to May 2012 (10 months) - Stayed in India due to maternity. My baby was born in India
Oct 2012 - I got my ILR (Tier 2 ICT - 5 year route)
Nov 2012 - applied for ILR dependent for my wife (FLR - M)
Apr 2013 - got ILR dependent visa for my wife and baby

Questions:

1. My wife has completed more than 2 years now in UK. However, she is away from UK for a period of 10 months due to maternity. Will this result in application rejection? Note, she got continuous visa (no break in here visa duration)
2. She got ILR dependent visa (FLR - M) in Apr 2013. Will new rules apply (5 years for dependent to settle) or old rules apply (2 years for dependent to settle)?
3. My daughter born in India came to UK in May 2012. She hasn't finished 2 years in UK. Is she eligible for settlement?

Thanks in advance for your support and help. Appreciate your time.

[Amber]

You would have transitional protection thus would be under the old rules, 2 years qualifying period. Absences should be limited and for good reason, maternity for cultural and family reasons should suffice but you can explain to the caseworker upon arrival for your PEO (take flr(m) in case), your daughter would be applying at the same time as your spouse. Your wife could have continued on her PBS dep visa rather than switching to flr(m).

[vinny]

Nov 2012 - applied for ILR dependent for my wife (FLR - M)
Apr 2013 - got ILR dependent visa for my wife and baby

Did your wife get FLR(M) after Nov 2012?
Did she apply for another entry clearance in April 2013?

[Amber]

Nov 2012 - applied for ILR dependent for my wife (FLR - M)
Apr 2013 - got ILR dependent visa for my wife and baby

Did your wife get FLR(M) after Nov 2012?
Did she apply for another entry clearance in April 2013?

I do not think the spouse has been outside the UK since May 2012.

[trueindian2013]

Thanks Vinny. My wife got flr-m in Apr 2013 in UK only. You are right, she has not gone outside UK since May 2012.

Regarding my daughter, she hasn't completed 2 years in uk as she was born in Dec 2011 and came to UK in May 2012 along with her mother.

[trueindian2013]

We applied for flr-m as her pbs dependent has expired and she didnt complete 2 years in UK.

[Amber]

She could have extended as a PBS dep until qualifying, the child should apply with the mother.

[vinny]

I do not think the spouse has been outside the UK since May 2012.

Thanks Amber. The use of the word 'visa' was confusing me. Technically, a 'visa' is a type of entry clearance. It's issued only from outside the UK.

[trueindian2013]

Amber, Vinny

Thanks for your swift responses. Very helpful.

To summarise, my wife is now eligible for settlement on the basis that her stay outside UK was a genuine reasons. As baby should apply along with mother, my daughter is also eligible for settlement.

Is this correct?

Also, they having FLR-m weakens the case or works against application? Or you were just advising that they could have stayed as PBS dependent.

Thanks again.

[Amber]

Just telling you that they could have. If the caseworker deems your absence limited and for good reason, then you should be fine. The English language requirement is changing on 28 Oct 2013 so should apply before then maybe?

[trueindian2013]

Thanks Amber.

With your experience, do caseworkers treat maternity leave as a good reason and accept application?

Sorry to be pedantic but just want to understand others experiences.

[Amber]

There have been a number of recent set(m) cases where maternity absences were accepted. Only one recent set(o) application was rejected for a maternity absence. Given the fact she has been back in the UK a while, I would be surprised if it was rejected.

[trueindian2013]

Great. Much appreciated and very very helpful. Your service is amazing.