SET LR success, wife still on PBS Dep.

[k7501]

Hello!

I am sure this question has already been asked but I have seen so many different opinions and wanted to ask it myself just to be sure.

I got T1E leave in Dec 2015 and my wife got the PBS dep. too, valid until Dec 2018.

I have been granted with ILR (LR) in December 2016. The financial year of my specified limited company ended on the 31st of January and our account are just about made up ready for submission. I did not switch her to FLR (M) beforehand, as my previous year's returns wouldn't probably satisfy the FR, while these would.

It's been 2 months and as far as we know her leave has not yet been curtailed. We have a holiday coming on the 15th of March (coming back 29th). Given that it has still not been curtailed yet (and I don't see why it would) I am thinking between making the application on the 1st of March and trying to get the premium appt OR waiting until we come back and applying on the 30th of March.

Please advise. Any help would be greatly appreciated!

PS. I've seen previously some HO letters to people in similar situations advising that PBS dep. staying until the end of their current leave would not be in breech of imm.laws and is free to switch to FLR(m) whenever convenient before expiry, however many people here seem to indicate otherwise, which is really frustrating:(

[Casa]

Your wife shouldn't travel outside of the UK without first switching to FLR(M). Had you applied for ILR under the 5 year route, your wife would have been able to remain on her PBS dependant visa.

[k7501]

Your wife shouldn't travel outside of the UK without first switching to FLR(M).

Thank you, that's what I generally gathered from here.

However, doesn't the leave remain valid until expired or curtailed? And if she still has a valid leave upon return back and a pending application at Croydon for example with appointment and everything, what would the problem be?

Also, in HO words "...Based on the information you have provided, your wife will need to apply to switch into the partner of a person who is settled in the UK category under Appendix FM of the Immigration Rules. There is no set time limit in which a dependant partner would have to make their application to ‘switch’. Failure to apply would not be considered as a breach of the Rules, as he or she would still have extant leave, and we would not be looking to curtail that leave unless we were made aware that the relationship had ended.."

Thank you

Had you applied for ILR under the 5 year route, your wife would have been able to remain on her PBS dependant visa.

Yes, however God only knows what kind of situation will there be with the rules in 4 years' time, that's how much longer I'd have to wait for mine. It'd also be dependant on my business doing relatively well and it would put a lot of pressure on me :/

[Casa]

IMHO your wife may have a problem on re-entry if she remains on her current visa.

You're aware that switching to FLR(M) will reset your wife's immigration clock to zero and she will be on a new 5 year (2.5+2.5) route to ILR, unless she qualifies for LR before then?

It's worth bearing in mind that regardless of the travel issue, the sooner your wife switches to FLR(M), the sooner she will complete the 5 year residence.

[vinny]

Travelling may be risky.

[k7501]

IMHO your wife may have a problem on re-entry if she remains on her current visa.

Thanks again Casa for such prompt replies, really appreciate it, seriously.

Basically what I figure from what you are saying is that it's not an exact science and it's a "should" not a "must"? Of course I will switch her the moment we are back. Without getting into details the trip is important hence I am stuck with it.

Also, in my opinion, if I do apply before it and there will be need for extra checks (which in my ILR resulted in a 3 month delay) then we can kiss it good bye, but if we were to apply on return (having the application submitted online and the appointment being within the few days of arrival) then we would definately be boarded on the plane back and will reach the border where any potential question will have a plausable answer. Why haven't I applied before? Was waiting for the accountant to process the return paperwork + the leave was not curtailed on the date of departure + this quote from the HO.

In regards to her ILR - yes, the clock will reset, but losing 1 year (and that's all it is for her) wouldn't have made a huge difference when weighted against the risk of having problems extending T1E, who knows how the business will do in Dec 2018..

Please leave a last comment as to your thoughts and I won't take any more of your time and attention.

Thank you

Travelling may be risky.

Thanks vinny, having read what you refer to it does appear risky, so is it simply a matter of having an understanding border officer? That would suggest that we would be breaking the rules, but as far as the situation is concerned the advice is to switch ASAP and that's pretty much what we were doing except for not cancelling a relatively short trip together as if we were to apply before it, it could likely need cancelling



PS I am sorry if it may sound like I am directing the convo into something that I want to hear, but really it's not, I just want to have a picture in my head that is closest to the truth so I can judge the likelihoods more accurately.

[Casa]

As you''ll have seen from Vinny's link to a previous thread, your wife is at risk of having her current visa curtailed on re-entry.

[k7501]

Just an update to bring the post to a logical conclusion and to let people in a similar situation in on our experience.

We left for our holiday 3 months after I got my LR ILR while my wife was still on PBS Dep. We came back in 15 days time and there was not a sign of anything going wrong with the Border Force officer - it went the way it always did - done in 1.5 mins. The next day we applied for FLR(M) and got it approved.

This goes to say that if anyone in a similar situation is in a position where travel is important (I prepaid almost £4k for this holiday - no way I would cancel it on a hearsay risk) - the risk might exist, but I am sure it is overexaggerated on this forum by the minority with bad experience (after all - who else would come to this forum).

After all I am glad to not have listened to the advice, but appreciate that in some rare cases it might have been appropriate.