SET(M) for refugee possible?

[ariskar]

Can a spouse of BC who held refugee leave to remain for 5 years AND has ALSO been married for 5 years and living in the UK with a BC spouse apply for ILR through SET(M) route instead of SET(P)?

The total continous residency period for the person in question at the time the above are fulfilled (today) is 8 years.

Cost is not an issue, a quicker ILR (premium service) is preferred, as the applicant would not want to stay and wait in the UK without the ability to travel for 6 months that most of SET(Protection) route applications tend to take...

Secondary question: In case the person applys for SET(P) and it is rejected, could they apply for SET(M) or do they need to hold FLR(M) route limited leave for 5 years before they can do that? If the later is the case, can the person (with a presumed failed SET(P)) use FLR(M) and apply for SET(M) after 2 years of limited spouse leave under 10 year spouse or LR route, combining different types of leave?

Thanks in advance!

[CR001]

Can a spouse of BC who held refugee leave to remain for 5 years AND has ALSO been married for 5 years and living in the UK with a BC spouse apply for ILR through SET(M) route instead of SET(P)?

No you cannot. You do not hold a visa in the category to qualify for Set(M). You must apply on Set(P).

The total continous residency period for the person in question at the time the above are fulfilled (today) is 8 years.

Is it all 'legal' residence?

Cost is not an issue, a quicker ILR (premium service) is preferred, as the applicant would not want to stay and wait in the UK without the ability to travel for 6 months that most of SET(Protection) route applications tend to take...

You don't have an option to choose which form to use. You can only use Set(P) based on your circumstances.

Secondary question: In case the person applys for SET(P) and it is rejected, could they apply for SET(M) or do they need to hold FLR(M) route limited leave for 5 years before they can do that? If the later is the case, can the person (with a presumed failed SET(P)) use FLR(M) and apply for SET(M) after 2 years of limited spouse leave under 10 year spouse or LR route, combining different types of leave?

You cannot apply on Set(M) if you DO NOT hold a spouse settlement visa for the full 5 years (2 x 2.5 FLR(M) visas).

You could apply for FLR(M) and then ILR Long Residence yes, but you MUST have 10 years of legal residence, i.e. no period in the UK without a visa, to qualify for long residence ILR and you must meet all the requirements.

P.S. who exactly is this question/post for? You seem to be posting most recently about British Citizenship.

member/ariskar/posts/

[ariskar]

The total continous residency period for the person in question at the time the above are fulfilled (today) is 8 years.

Is it all 'legal' residence?

Yes: Tier 4 + Asylum applied within the UK prior to Tier 4 expiration + 5 years leave as Refugee (with Blue travel document). Refugee leave was obtained/approved 4 months after Tier 4 expired

Secondary question: In case the person applys for SET(P) and it is rejected, could they apply for SET(M) or do they need to hold FLR(M) route limited leave for 5 years before they can do that? If the later is the case, can the person (with a presumed failed SET(P)) use FLR(M) and apply for SET(M) after 2 years of limited spouse leave under 10 year spouse or LR route, combining different types of leave?

You cannot apply on Set(M) if you DO NOT hold a spouse settlement visa for the full 5 years (2 x 2.5 FLR(M) visas).

You could apply for FLR(M) and then ILR Long Residence yes, but you MUST have 10 years of legal residence, i.e. no period in the UK without a visa, to qualify for long residence ILR and you must meet all the requirements.

I guess the period without leave that she was waiting for the subsequent approval of the refugee application made within the UK still counts as legal residence.

P.S. who exactly is this question/post for? You seem to be posting most recently about British Citizenship.

My spouse, a non-EEA citizen holding UK refugee status 5-year leave to remain, which will end in less than a year. I am an EEA PR holder in the process of naturalising as a BC (awaiting decision). We are expecting a child in the UK that will be BC by birth. A complex family case, which I hope is clarified.

Sidenote 1: Do you think being married to a BC and the carer of a BC infant could help qualifying for an appeal a refusal of SET(P) on grounds of family life (article 8: ECJ)? I do not have valid fears that her ILR application through SET(P) will be refused, but I think it is inconvenient and more subjective than other immigration laws, particularly after "safe return review" unclear policy...

Sidenote 2: I don't think I could apply for an EEA(PR) residency card for my wife under EU law prior to naturalising, as we haven't been married or living together for more than 5 years at that stage and she was not on a EU family member residence card (similar reasoning you explained above for SET(M) ineligibility). I hope I didn't do a mistake by naturalising early... However the ECJ ruled that EEA citizens do not lose derived rights after naturalizing at the host state. Would there maybe be a chance we could apply for my wife for EEA(PR) or the new post-Brexit settlement ILR for EEA family members as a derived EEA right of residence after becoming also a BC (triple national: UK + 2xEU) myself?

My answers in red. Thank you for your clear answers CR001 and happy new year!

I would appreciate some further insight from the subsequent questions. This is a potentially complex case across different immigration categories. I may be just over-worried, as I am accustomed to more straightforward systems... Thanks again!

[CR001]

Yes: Tier 4 + Asylum applied within the UK prior to Tier 4 expiration + 5 years leave as Refugee (with Blue travel document). Refugee leave was obtained/approved 4 months after Tier 4 expired

Date Tier 4 expired and date application for refugee status was applied for??

I guess the period without leave that she was waiting for the subsequent approval of the refugee application made within the UK still counts as legal residence.

Depends on the dates asked for above.

Sidenote 1: Do you think being married to a BC and the carer of a BC infant could help qualifying for an appeal a refusal of SET(P) on grounds of family life (article 8: ECJ)? I do not have valid fears that her ILR application through SET(P) will be refused, but I think it is inconvenient and more subjective than other immigration laws, particularly after "safe return review" unclear policy...

Possible appeal rights will be given.

Sidenote 2: I don't think I could apply for an EEA(PR) residency card for my wife under EU law prior to naturalising, as we haven't been married or living together for more than 5 years at that stage and she was not on a EU family member residence card (similar reasoning you explained above for SET(M) ineligibility). I hope I didn't do a mistake by naturalising early... However the ECJ ruled that EEA citizens do not lose derived rights after naturalizing at the host state. Would there maybe be a chance we could apply for my wife for EEA(PR) or the new post-Brexit settlement ILR for EEA family members as a derived EEA right of residence after becoming also a BC (triple national: UK + 2xEU) myself?

How long have you been married? A residence card is optional for spouses of EU citizens. Non-EU spouses rights are usually automatic if married and the EU citizen is exercising treaty rights.

I would appreciate some further insight from the subsequent questions. This is a potentially complex case across different immigration categories. I may be just over-worried, as I am accustomed to more straightforward systems... Thanks again!

Set(P) might be the easier route, based on her status and if her circumstances have not changed in terms of the reasons she claimed refugee status etc.

My answers above again and if you could clarify the couple of questions I asked, more advice could be given. Happy NY to you too.

[ariskar]

Yes: Tier 4 + Asylum applied within the UK prior to Tier 4 expiration + 5 years leave as Refugee (with Blue travel document). Refugee leave was obtained/approved 4 months after Tier 4 expired

Date Tier 4 expired and date application for refugee status was applied for??
She applied as a refugee 60 days before her Tier 4 expired

I guess the period without leave that she was waiting for the subsequent approval of the refugee application made within the UK still counts as legal residence.

Depends on the dates asked for above.

Sidenote 1: Do you think being married to a BC and the carer of a BC infant could help qualifying for an appeal a refusal of SET(P) on grounds of family life (article 8: ECJ)? I do not have valid fears that her ILR application through SET(P) will be refused, but I think it is inconvenient and more subjective than other immigration laws, particularly after "safe return review" unclear policy...

Possible appeal rights will be given.

Sidenote 2: I don't think I could apply for an EEA(PR) residency card for my wife under EU law prior to naturalising, as we haven't been married or living together for more than 5 years at that stage and she was not on a EU family member residence card (similar reasoning you explained above for SET(M) ineligibility). I hope I didn't do a mistake by naturalising early... However the ECJ ruled that EEA citizens do not lose derived rights after naturalizing at the host state. Would there maybe be a chance we could apply for my wife for EEA(PR) or the new post-Brexit settlement ILR for EEA family members as a derived EEA right of residence after becoming also a BC (triple national: UK + 2xEU) myself?

How long have you been married? A residence card is optional for spouses of EU citizens. Non-EU spouses rights are usually automatic if married and the EU citizen is exercising treaty rights.
We have been married for 3 years

I would appreciate some further insight from the subsequent questions. This is a potentially complex case across different immigration categories. I may be just over-worried, as I am accustomed to more straightforward systems... Thanks again!

Set(P) might be the easier route, based on her status and if her circumstances have not changed in terms of the reasons she claimed refugee status etc.

I agree Set(P) is the straightforward route, but also the longest and most subjective in it's outcome. The reasons for granting the refugee status have not changed and rules not breached, but the country conditions may changewith respect to the reasons since leave was initially granted at the time her application will be considered. (I.R. Iran: human rights activities). I am trying to establish an ILR route decision tree based on the situation...

My answers above again and if you could clarify the couple of questions I asked, more advice could be given. Happy NY to you too.

Answers in blue, many thanks.

[CR001]

She should be fine then with no period of overstay.

She would still need 2 years before she could qualify for PR under the EEA/EU route.

Given what is currently happening in Iran, the instability is probably helpful to her Set(P) app.

[ariskar]

She should be fine then with no period of overstay.

She would still need 2 years before she could qualify for PR under the EEA/EU route.

Given what is currently happening in Iran, the instability is probably helpful to her Set(P) app.

Thank you CR001

The EEA/EU route may change drastically within the coming 2 years. Will apply for SET(P) and wait for the 5-6 month processing time. Maybe my worries are unjustified.