ILR by SET(O) for someone already on 5 year route

[rkay]

Hello,

I got my Settlement in 2004 through Work Permit route and then got my citizenship in 2005. But my wife and children moved to UK only in 2014 (yes, after 10 years!) based on 5 year route to settlement.

I was checking rules to apply for their extension FLR(M) and bumped into this:https://www.gov.uk/settle-in-the-uk/y/y ... -work-visa. It appears that my family could apply for settlement using SET(O) based on the fact that i had Settled in the past? This particular paragraph gives me some hope as this is not a blanket rule for all Settled persons and they have listed Work Permit as the eligible category.

If your partner or parent settled in another way, for example because they’d been in the UK for 10 years (‘Long Residence’), you can’t settle because of their work visa

It sounds too good to be true but i can't find any further information and not able to relate this to anything in SET(O) guidance.
There's no probation period too, other than saying 2 years relationship?
If this is true i could apply SET(O) instead of FLR(M)?

[rkay]

It looks like 196D validates my question above:https://www.gov.uk/guidance/immigration ... -in-the-uk

[vinny]

Possible.

[rkay]

Thanks Vinny, this is really exciting as i have found it only accidentally. But it doesn't look like my children can apply under the same rule as Paragraph 199(i) 2 is only in present tense? If this is the case what would happen to my children visa? can they still get FLR(M) even if my wife changes to ILR? My children and wife all came through the 5 year route at the same time? Or is it safe to get FLR(M) for everyone and then attempt for SET(O) for wife? That'll cost more obviously.

[vinny]

You are right! 199(i)(2) has omitted "or has become a British citizen,", that is present in 196D(i)(2). It's probably an oversight.

Alternatively, after spouse is granted ILR, children may separately apply for SET(F). They have discretion to regard British citizens as "present and settled".

How old are the children?

[rkay]

The settlement wizard says dependent children are eligible to apply but i am struggling to find corresponding rules. Perhaps 199 is applicable only for children on their own and changes when applying as a dependent of someone applying. Can't be sure. One of my child is over 18. She was under 18 when we applied for current visa (5 year route, first entry) but was over 18 when it was granted. The wizard says

If your child has turned 18 since they were given that visa they can still apply

, so another confusing part whether applied date or grant date will be considered. Did anyone already applied under this rule for their children?

[rkay]

Called UKVI to double check this rule, she said for spouse visa only 5 year route is possible since 2012. Asked her why not based on this rule, she checked with supervisor but still said, 5 year minimum stay is mandatory. She couldn't point me to how/based on what rule, she couldn't tell but amendment and said i'll be wasting money if i do SET(O). I called again and spoke to someone else, he checked the rules and said yes, it's possible - still he didn't know upfront but based on what i have shown/explained he said it's possible. Spoke to a solicitor but he is not aware of this rule, but again after reading the rule he thinks it could be possible. Is it possible to get clarifications from UKVI via emails? i think that will some confidence to take it to the appointment.

[vinny]

Don't rely on telephone conversations nor correspondence.

Rely on the Immigration rules.

196E for wife.
A280(b), 299 for children.

KoLL required for applicants over 18.

[rkay]

Vinny, thanks again for further resources. I only wanted some sort of confirmation from at least one of their sources which would atleast make them think twice before blatantly saying 'settlement for spouse is only after 5 years', just like the lady told me over the phone without really taking my point.
A screenshot of Settlement wizard (not sure how else to refer this to!) will add any value? Also, thinking of making a freedom of information request but not sure whether there will be a timely reply.

196E for wife.
A280(b), 299 for children.

Vinny, this means getting ILR first for wife and then applying for children? I am not really able to follow what A280B means but can see 'present and settled' in 299 Since Settlement wizard shows dependents can also apply, are we missing some rules? Or should we take it as they could only if I am still on ILR? I wish that site adds a link to relevant immigration rule.

Applying only to wife first seems less risky in terms money (one applicant, rather than three) but i am worried that they may not give the decision the same day and send it off for review - if this happens my childrens visa could run out before i could get a decision. My children can they apply on their own for FLR(M) if this happens or they have to apply only as part of my wife's application - i think they could but a confirmation will be appreciated. I wish i'd come across this an year back which could have plenty of time even to appeal if they reject without having to worry about childrens' extension. And also have very short time to do KoLL stuff.

[rkay]

Found this internal home office guidance and the more i read it looks SET(O) is applicable. I hope this is the recent (it reflects current immigration rules though). It clearly says switching into this category is allowed and it has different rules for dependent children. Going to look for KoLL materials to get ready, any guidance appreciated.

[vinny]

Applying only to wife first seems less risky in terms money (one applicant, rather than three) but i am worried that they may not give the decision the same day and send it off for review

Alishah's wife received ILR decision within 2 hours.

[rkay]

Thanks again Vinny, going to go forward with the application and doing KoLL is the first thing to do. Can you please confirm that my children will be able to apply for FLR(M) on their own - without mother's application? Just in case if my wife's application got stuck/if and the children's visa is about to expire.

[vinny]

Thanks again Vinny, going to go forward with the application and doing KoLL is the first thing to do. Can you please confirm that my children will be able to apply for FLR(M) on their own - without mother's application?

No. I don't think children may apply for FLR(M) on their own.

[rkay]

Thanks Vinny.

Hope you could clarify this too. Can Immigration Rules be looked at individually as is or there could be something else which would have replaced them elsewhere? Reason i am asking is, I am confused by your reply here and by others too where it says paragraph 317 is now replaced by something else in Appendix FM. Does Appendix FM applies to all rules? Does it take precedence? If so, then that will also make paragraph 196E questionable/irrelevant?

Thanks.

[vinny]

There have been many changes to the Immigration Rules over the years.

For example:

Some Immigration rules in Part 8 have been replaced by Apeendix FM.

Part 3 and and some Part 5 replaced by Part 6A.

Part 4 and Part 6 was deleted.

Part 2 replaced by Appendix V.

However, currently, 193A-199B remains in force.

There may also be multiple rules applicable.

[rkay]

Thanks for the quick update, that's a relief. But I thought if something gets replaced/updated, then it'll be immediately reflected/updated here and what we read is just current rules in force. So, for example, the current paragraph 317 there is up-to-date or not (eventhough it may have been updated many times)?. Sorry to deviate a bit from the main topic, just wanting educate myself a bit.

[vinny]

Yes. The Immigration rules represent what is currently in force.

But note that, for example, 317 is also subject to A280.

[rkay]

Cheers Vinny, can see that they are attaching other paragraphs to other rules within Part 8. Thanks again for the clarification.

[rkay]

Been away on a long holidays and just got back! I managed to get hold of my old work permits and it brings up another question.

I had two work permits, first issued in 2000 (24 months) and second in 2002 (30 months). I got my ILR in 2004, after completing 4 years with work permit but before the expiry of my second work permit. But both the work permits have only "Immigration Act 1971" written on them. Key requirement to get ILR by SET(O) for my spouse is that i should have had work permit under Immigration Rules paragraphs 128-193 but there's no mention of these paragraphs in the work permits or in any accompanying letter. While I am thinking that all work permits should have been issued under paragraphs 128-193 only and "Immigration Act 1971" should cover these paragraphs, can someone confirm? Is there a way to verify this? My work permits were standard work permits for skilled employment (IT). I am keen to hear from Vinny.

[rkay]

A280(b), 299 for children.

Vinny, i am struggling to understand A280B. While i can see that 299 conditions will be met once my wife gets ILR, what does A280B means?

A280B. An applicant aged 18 or over may not rely on paragraph A280 where, since their last grant of limited leave to enter or remain under Part 8, they have been granted or refused leave under Appendix FM, Appendix Armed Forces or paragraph 276BE to CE of these rules, or been granted limited leave to enter or remain in a category outside their original route to settlement.

It starts as since their last grant of limited leave to enter or remain but for my child over 18, last grant of LLR is the only grant of a visa. So, how this paragraph will apply?

I'd like to see how the 5 year wait before ILR requirement is being removed for my child and the relevance of A280B.

My wife has cleared her English exam and going to take Life in the UK exam in a week. A quick response is appreciated. I just don't want to be in state that my wife gets ILR but my children are left in a limbo after that.

Thanks.

[vinny]

Sorry. Child's ILR may be granted under

If the applicant meets the requirements for leave to remain as a child the applicant will be granted leave to remain of a duration which will expire at the same time as the leave granted to the applicant’s parent, and subject to a condition of no recourse to public funds. To qualify for indefinite leave to remain as a child of a person with indefinite leave to remain as a partner or parent, the applicant must meet the requirements of paragraph 298 of these rules.

No need to involve A280B nor A280(b) etc.

[rkay]

Vinny, D-LTRC.1.1 immediately follows:

If the applicant does not meet the requirements for leave to remain as a child the application will be refused.

It seems qualifying for leave to remain first is essential and then the child may be granted ILR if paragraph 298 is also met. Does it mean meeting financial requirements etc?

Also, I am not sure how to interpret this:

One of the applicant’s parents (referred to in this section as the “applicant’s parent”) must be in the UK and have leave to enter or remain or indefinite leave to remain, or is at the same time being granted leave to remain or indefinite leave to remain, under this Appendix (except as an adult dependent relative), and

The text "under this Appendix" and the sub paragraphs a, b and c are attached to only at the same time being granted leave to remain or indefinite leave to remain or to the all preceding text ( even if the parent already has indefinite leave to remain)? I wish they can write normal sentences rather than adding commas everywhere.

Now i can see that you actually meant A280(b) and not A280B earlier. Do you think this is still relevant and better than D-LTRC.1.1?

What application i would use for this? Do i have to specify under what paragraphs i am applying in the cover letter?
Also, any comments for my previous post about work permit under immigration act 1971 vs paragraphs 128-193?

Thanks

[vinny]

You may be right.

The apparent lack of an ILR path for children of a British citizen parent in Part 5 and the way Appendix FM and Part 8 are written may present obstacles for your children's ILRs.

In 2004, work permit employment was under 128-135.

[rkay]

The apparent lack of an ILR path for children of a British citizen parent in Part 5 and the way Appendix FM and Part 8 are written may present obstacles for your children's ILRs.

This changes everything. My wife has just cleared Life in the UK exam but i am not sure where to go from here. Spoke to couple of solicitors but none are aware of 196E and even when informed they are like no-no you can't use that rule if your wife came here after 2012 - so it's a non-starter.

[rkay]

Here is something interesting. I have been asking DMC Croydon about my situation and possibility of ILR through 196E. Initial reply was negative but when i pointed them to the rules and asked to escalate they confirmed that my wife is eligible. Then when i asked about my children, they said yes they can be included as well. Then i specifically asked the usage of 'present tense' in Paragraph 199 and asked about specific rules under which my children can be included, here is their reply:

Please be advised that children can be included on the application for the same reason that the adult dependant can submit the application i.e the Immigration Rules do not prevent it.

There are no Immigration Rules applicable to your specific enquiry, only that the Immigration Rules do not prohibit such an application being submitted.

Eeventhough it sounds diplomatic, it sounds very positive. Any thoughts? I am still looking for a solicitor though.