Eligibility when visa category changes from Tier2 to Partner

[s_a]

Hi,

Summary of my case:
1. My partner entered the UK in Nov 2010 on a Tier-2 ICT visa
2. I entered the UK in Sep 2007 under HSMP
3. We got married in Nov 2011 and we have been living together in the UK since Oct 2011
4. I was granted an ILR in Aug 2012 (Tier-1 route) and subsequently became a naturalised citizen in Apr 2014.
5. My partner changed from Tier-2 to partner of settled person visa category in Jun 2014
6. The gov.uk website states that my partner would be eligible for an ILR if she satisfies the following conditions :
· Have a valid partner visa.
· Been living in the UK with my partner for at least 5 years
· Be living together in our accommodation.
· Not be using public funds

She has satisfied all these conditions as of 1st Oct 2016, as can be surmised form points 1 to 5 above. However, the following statement in the ILR application form (SET M version 04/2016) seems to suggest that she would need to have spent 5 years in the new visa category:
You should only use this form if your previous grant of leave was made under Part 8 of the Immigration Rules. If you made your first application under the family route on or after 9 July 2012, and your visa or leave was issued for 30 or 33 months, then you should apply for a further period of limited leave before you can apply for settlement.

I am probably the last person in the UK to realise that the eligibility is based on when the visa category was changed. However, I am wondering if there is any chance of persuading UKBA to agree that my partner is eligible now, on the basis that in at least one place, the gov website does not state that she should have been holding a dependent visa for the entire 5 year period. (I have screenshots of this gov dot uk page).

My MP has committed to helping by writing to the Home Sec, and I am in the process of getting an opinion from some solicitors and OISC advisors. Any suggestions/advise would be most welcome.

[Casa]

Within the Immigraton Rules, your husband's immigration clock was set to zero when he switched to the spouse of a settled person. This means that as your spouse he won't qualify for ILR until he has completed 5 years under this FLR(M) category (2.5 + 2.5 years).

However as he entered in 2011 on a Tier-2 ICT visa, he may qualify for ILR under long residence once he has completed 10 years without any visa gaps. My only reservation is that Tier-2 ICT doesn't generally lead to settlement. Wait for confirmation on this.

When does his current FLR(M) visa expire? He MUST ensure that he doesn't allow this to expire before applying for a FLR(M) extension.


There is no point in challenging the 5 year Rule.

Once he has been granted ILR assuming he meets all the standard requirements, as he is married to a BC he will be able to apply immediately for British citizenship without waiting an additional 12 months.

[s_a]

Hi Casa

Thanks for your reply.

The FLR(M) expires in Nov 2016 - thanks for the pointer that we shouldn’t let it expire, and for the info about the citizen eligibility.

I am reasonably confident that Tier-2 ICT used to lead to settlement because I had a few colleagues who got their ILR on the back of their Tier-2 ICTs. I am guessing this may have changed since.

I was hoping to challenge the challenge the requirement on the basis that some of the government’s own website states that we should have been a) married for 5 years b)legally living together in the UK for 5 years - but doesn’t explicitly state that my partner should have also been in the partner visa for 5 years.

I take your point about the the immigration clock reset - but if there is even a minuscule chance of persuading UKBA through a letter from my MP or some loophole that a solicitor could exploit, I would love to know that.

If not, thanks again for your time.

Have a good day!

[Casa]

Hi Casa

Thanks for your reply.

The FLR(M) expires in Nov 2016 - thanks for the pointer that we shouldn’t let it expire, and for the info about the citizen eligibility.

I am reasonably confident that Tier-2 ICT used to lead to settlement because I had a few colleagues who got their ILR on the back of their Tier-2 ICTs. I am guessing this may have changed since. You may well be right on this.

I was hoping to challenge the challenge the requirement on the basis that some of the government’s own website states that we should have been a) married for 5 years b)legally living together in the UK for 5 years - but doesn’t explicitly state that my partner should have also been in the partner visa for 5 years. If concessions were made due to misleading or unclear information on the UKVI website, the majority of visa refusals could be challenged.

I take your point about the the immigration clock reset - but if there is even a minuscule chance of persuading UKBA through a letter from my MP or some loophole that a solicitor could exploit, I would love to know that. There isn't even a minuscule chance of a letter to the UKVI or intervention by your MP succeeding.


Submit the FLR(M) application and as soon as your husband completes 10 years of residence, apply for SET(LR). If the 10 year anniversary is prior to FLR(M) being granted, vary the application to SET(LR).


If not, thanks again for your time.

Have a good day!

[s_a]

Hi Casa,

It makes sense.

Thank again you for your detailed response - it was super useful and answers all my questions.

[Casa]

Hi Casa,

It makes sense.

Thank again you for your detailed response - it was super useful and answers all my questions.

You're welcome. Feel free to posts more questions if you get stuck with anything.

Your husband will have to pay the NHS surcharge of £500 which has been introduced since his last visa application. Also ensure that he has the correct English test level (unless exempt) as this is due to be raised from A1 to A2 any time now.