Extension of a Spouse Visa - Spouse is now UK Citizen

[gau27]

Hi there,
Posting my query under the same thread since the topic post also happens to be very similar to my case:
1. I held 5 years work permit visa 2007-12, obtained ILR in late 2012
2. I continued on ILR in late 2013 when I got married. Wife immigrated to the UK in early 2014 on spouse settlement visa (33 months validity expiring in Oct 2016)
3. I continued on ILR until 2016 as I was undecided., then finally got British citizenship in March 2016.

Questions are:
a) Should my wife visa be extended under category FLR(M) for further 2 years?
b) Will she be eligible for naturalisation in March 2018 given that she would have been spouse of British citizen for 2 years then?

Appreciate your replies.
Thanks

[vinny]

I came to UK last July 2011 under a spouse visa of a domestic worker (private household)

What is stopping you from applying for SET(O) under 196D, 196E? Perhaps 196D(iii) - KoLL?

1. I held 5 years work permit visa 2007-12, obtained ILR in late 2012

Same question as above for wife. Naturalisation requires ILR.

[gau27]

Thanks, Vinny for clarifying.

Just 1 more question - How early should one apply for extension of the FLR(M). I read that someone mentioned above :

If your current visa doesn't expire until Oct, don't apply for FLR(M) too early, or you will fall short before the end of the qualifying term for ILR and will need to extend again.

Please clarify should I actually calculate the period keeping in mind the ILR application?

[vinny]

If you were granted ILR immediately after you were on a non-PBS work permit under Part 5, then I believe that your wife may apply for SET(O) at anytime, subject to KoLL.

However, if she chooses to apply for FLR(M), then it should be granted for 30 months from the date of decision. She may apply for SET(M) no sooner than 28 days before her 5th anniversary of her initial entry as the spouse of a settled person and preferably before her leave expires. If she chooses to apply for SET(M) rather than SET(O), then she should time her application so that she has sufficient leave for SET(M).

[CR001]

If you were granted ILR immediately after you were on a non-PBS work permit under Part 5, then I believe that your wife may apply for SET(O) at anytime, subject to KoLL.

Spouse immigrated to UK on Settlement visa in 2014, when gau27 was already on ILR. Set(O) is not relevant to gau27's case.

[CR001]

Have split gau27 posts from the original topic where he posted to avoid confusion.

http://www.immigrationboards.com/immigr ... 07400.html

[vinny]

I think it could be relevant, if he was a non-PBS work permit holder immediately prior to getting ILR.

Which parts of 196D, 196E do you think would exclude her?

[CR001]

Will have to read up on the old work permit rules, not overly familiar with them.

As the OP got ILR in 2012, then married and his spouse entered the UK for the first time on spouse settlement visa in 2014, I based my comment on the fact that the spouse is on a 5 year route settlement route from 2014 to get ILR.

[vinny]

Strangely, it doesn't seem to be an impediment under 196D, 196E.

[gau27]

Appreciate your efforts and time to comment on this.. trying to ascertain what's the correct way to extend the visa- FLR(M)?
Also, will she be eligible for naturalisation directly after another year as mentioned here? (spouse of British citizen & 3 years residence)
https://www.gov.uk/government/uploads/s ... r_2015.pdf

[gau27]

Sorry, I just re-read the AN guide and it is clear:
"spouse needs to be free of immigration time restrictions on the date of application"
So, then naturalisation comes only after securing ILR.

Question now is only visa extension or ILR?
Thanks in advance.

[vinny]

If you were granted ILR directly from your work permit under Part 5, without switching to the Points Based Systems under one of the Tiers under Part 6A, then I believe that your wife may also apply for SET(O) directly, subject to satisfying KoLL, etc.

Were you ever subject to the Points Based System? If you had switched to the Points Based System, then she cannot apply for SET(O).

She may also extend on FLR(M) under Appendix FM.

[gau27]

Thanks, Vinny for digging into it.
Yes - I got my ILR straight after 5 years of WP (didn't convert into PBS visa)
Indeed, we're surprised that my wife can actually apply for ILR under SET(O) subject to KoLL

However, reading through the SET(O) guidance PDF, I can't see how the "5 year qualifying period" will not apply for my wife's case? Kindly clarify.

[vinny]

Do read 196D, 196E, etc, very carefully.

[gau27]

Hi folks,
Just started going through the SET(O) application form, had a quick question on the below:

Section 3 - Which category?
Section A
Tier 1 categories list
Section B

Work permit holder (only tick if you are a pre-Points Based System work permit holder)
Work permit holder dependant
Employment not requiring a work permit
.....
Based on the above info I understand , my wife has to apply as "Work permit holder dependant". However, on second thought, I feel should she apply as "Other purposes or reasons not covered by other applications forms"
Since I'm no longer work permit holder ??
Please advise

[CR001]

Her applications is based on your previous immigration status.

"Other purposes or reasons not covered by other applications forms

This is for people on Discretionary Leave to Remain or rules outside of the immigration rules.

[gau27]

Hi all,
I had called the UKVI contact centre on the number provided just to hear out what they would say about my case. As expected, they said my wife has to only apply for visa extension on FLR(M) and no chance for SET(O). The advisor didn't have time to go over the part-5 196D,E rules which I mentioned and just kept repeating my wife has has to complete 5 years stay before applying for ILR. I left it at that.
However, having seen examples of a few case links pointed out here by the experts, I am confident SET(O) will be successful.
With the KoLL requirements satisfied, we will begin our application shortly and book a PSC appointment.

[gau27]

Hi all,
I got this reply below for the query I had emailed a while back stating the same case as I have on this forum.

You wife will need to complete 5 years in the spouse category before she is eligible for settlement. She will therefore need to make an application on FLR(M) before her current visa expires. She will be applying under the rules found in Appendix FM, which are the same rules she applied under for her entry clearance application.
Senior Operations Manager
Premium Service Delivery Team | Cardiff PEO

can I still go ahead with SET(O) for my wife or should I re-consider FLR(M)?
Please advise

[vinny]

The advisor didn't have time to go over the part-5 196D,E rules

That says it all.

[Obie]

Vinny's advise is legally sounded than your so called adviser.

I will go with her views any day.

I will go as far as saying, that very few adviser will match the level of thoroughness and detail in VInny's advise.

[gau27]

Thanks for the reassuring replies, Obie & Vinnie.
I have read the forum cases similar to mine that have been successful based on Vinnie's advice here , so I am still hopeful. I will prepare the cover letter and application appropriately.
Thanks, again!

[gau27]

Hello again, wonderful advisers on here..
Almost about to book an appointment, 2 question still worry me-
1. Part 5 of the rules, specifically196D, 196E does seem to apply. However, does this 'Part 5' not pre-suppose that my wife first entered under these conditions? This will then not be true as my wife applied via the Appendix FM, filling out a VAF4 form from India and she will have to follow the family member rules.

2. Appointment at PEO requires specific application. Can she possibly apply for SET(O) and also keep the FLR(M) application ready, so if the case worker rejects the former, we can safely try the latter? (of course, there is the bit about paying the NHS surcharge in the latter case)

Appreciate your thoughts on the above.

[vinny]

1.

Note 196D(i)(2), etc. Moreover, 196D(ii) doesn't require 194(i) nor 194(viii)!

She also satisfies 196D(iv), etc.

[andyccm21]

Hi gau27, just interested to know if your wife's ILR application based on paragraph 196E was successful?