Eligibility for ILR

[lachi]

Dear Members,

I have a doubt regarding my ILR eligibility, can anybody clarify when I would be eligible to apply for ILR
here is my situation

Came to UK on 02/09/2012 as a dependent to my partner - Tier 1(Generel) Partner on the top of Visa it says Entry clearance

Went for renewal on 14/03/2014 and got Spouse/Partner Leave to Remain until 14/09/2016 my partner has got ILR in 2013

My Partner has got British Citizenship in 2016
Again applied for Flr (M) visa on 14/09/2016 it was rejected in November 2016 immediately went for appeal.

While the appeal was in pending again applied for Flr (M) on 08/05/2017 and got Spouse/Partner Leave to Remain visa until December 2019.

By this 2 of September I would be completing 5 years, Can I apply for ILR on the basis of it?

Thanks in advance

[CR001]

What was the reason for refusal In 2016?

You need 5 years on a spouse visa for ILR. You cannot combine time from different category visa so your time as tier 1 dependent is irrelevant for 5 years residence ILR.

[bruteforce]

In my understanding, you should have stayed on dependant visa throughout 5 years instead of going for FLR(m), now you will need to spend 5 years on this visa and only then you will be eligible for ILR. Don't forget that your partner will need to maintain the minimum income of £18,600 & you will have to pay health surcharge as well at the time of extension.

[lachi]

Thank you very much Cr001 and Bruteforce

Your replies are very much appreciated

@Cr001 - The reason for refusal was they are not satisfied with Financial requirement but in second application every thing was clear so they granted

@Bruteforce - We were not aware of that we can extend based on Tier1 dependent at that time

Now I have two questions

1. My entry clearance was based on Tier1 but still as a partner only so why can't they include that period in 5 year spouse visa period?

2. If that period was not counted when would I be eligible for ILR, I mean would they count Appeal period of 8 months ( from Nov 2016 to June 2017) in that 5 years.

[bruteforce]

1. They have set out in the guidance that you cannot combine time spent in any category to acquire ILR.

2. You will only be eligible for ILR after spending 5 years on FLR (M).

[iworker]

why can't they include that period in 5 year spouse visa period?
Because you didnt read the rules/guidance.

There is no short cut, you need to wait for 5 years on flrm before you can apply ilr.

How did your partner get his ilr. 5 years on tier 1 or 10 years?

[lachi]

Thank you very much Bruteforce and iworker,

My husband has got ILR based on 5 year Tier1

I have read Immigration rules, in that they have mentioned spouse would be eligible for ilr after spending 5 years on spouse visa that's why I got the doubt.

I guess I have to wait until 2019 to get ILR under flr(m) route but I am not sure whether I can count that 8 months Appeal period or not.
According to my understanding I can count that period, does anybody know regarding that.
Thank you.

[iworker]

5 years from visa start date.

[marcnath]

Thank you very much Bruteforce and iworker,

My husband has got ILR based on 5 year Tier1

I have read Immigration rules, in that they have mentioned spouse would be eligible for ilr after spending 5 years on spouse visa that's why I got the doubt.

I guess I have to wait until 2019 to get ILR under flr(m) route but I am not sure whether I can count that 8 months Appeal period or not.
According to my understanding I can count that period, does anybody know regarding that.
Thank you.

Your original post said you renewed the visa in 2014. Does that mean you renewed it as dependent visa.
If so, you only got your FLR(M) in 2017, then you have to wait 5 years on FLR(M) i.e 2022 before you can apply for ILR.
If you had extended your Visa as PBS dependent in 2016, then you could have applied for ILR now.
That is a bit quirky, unfortunately and you are being penalised for an inadvertent error.
Have you tried contacting HO/UKVI directly explaining your mistake and seeing if there is any solution, for e.g. switching from FLR(M) back to PBS dependant.

If I read the rules correctly, you can switch to a PBS dependent visa 28 days before your current visa expires (in 2019)

You can apply as a PBS dependent because you are "the spouse or partner of a person with indefinite leave to remain or British Citizenship who last held leave in Tier 1, 2, or 5 of the Points Based System and you do not yet qualify for indefinite leave to remain"

Once you get your PBS dependent visa, you should be able to apply for an ILR immediately in 2019, because there is no restriction on combining visa types for a PBS dependent ILR.

[lachi]

Thank you very much iworker and marcnath,

I have started Flr(m) visa in 2014 March, it expired in September 2016
It was rejected on financial grounds then immediately I filed appeal
Then I went for second application for renewal of flr(m) I have got renewal from June 2017 to December 2019

Thanks

[CR001]

@marnath, the OP has FLR(M) now and therefore no longer possible to switch back to PBS dependent visa. A person cannot combine PBS dep and FLR(M) time to make up 5 years.

You are not reading the rules correctly.

[lachi]

Thank you CR001