ILR to PBS Dependant

[r1985]

As main applicant i have received ILR in Dec 2016 and applied for British passport recently
Came to UK in Jan 2007
PSW in July 2010
Tier 2 General in June 2012, extension in April 2015 with same company visa valid until 06 May 2018
Since qualified for 10 Year route, received ILR in Dec 2016

My wife came to UK on 22/06/2013 with entry clearence Tier 2 Partner visa 18/06/2013 to 14/06/2015
We have applied for extension together, she got PBS dependant visa 01/05/2015 to 06/05/2018
She remained on this visa until now.

We had baby born in UK received British passport in March 2017

Q1. Can she do SET(O) application in May 2018 as nearly 5 years(short of 45 days)?

From 6 April 2014, they are not able to switch into the Rules for partners of settled persons under Part 8. The PBS dependant will either need to apply for indefinite leave under the Points Based System if they can qualify, or apply for limited leave to remain as a partner under Appendix FM.


I have read this post immigration-for-family-members/dependan ... 43881.html
4.5.1. Where a relevant PBS migrant gains indefinite leave to remain under paragraph 276B on the basis of Long Residence, their partner will not be able to extend their leave or gain settlement as a PBS dependant and will be required to switch into the partner of a settled person category and apply for limited leave on that basis.

4.5.4. This is because paragraphs 284 and 295D of the Immigration Rules were amended to restrict switching by PBS dependants who have leave as the partner of a relevant PBS migrant. From 6 April 2014, they are not able to switch into the Rules for partners of settled persons under Part 8. The PBS dependant will either need to apply for indefinite leave under the Points Based System if they can qualify, or apply for limited leave to remain as a partner under Appendix FM.

one more reference https://www.gov.uk/government/uploads/s ... 18__2_.pdf
260. You can apply for settlement up to 28 days before you will reach the qualifying period if you apply earlier than that, your application may be refused. Otherwise your qualifying period will either be the 5 years immediately before the date you apply for Tier 2 Policy Guidance (Version 01/2018) Page 62 settlement or the 5 years immediately before the date your settlement application is decided, depending which is most beneficial for you. If you have spent more than 5 years in the United Kingdom, we will only consider the most recent 5 year period.


Thanks in advance!

[vinny]

The PBS dependant will either need to apply for indefinite leave under the Points Based System if they can qualify

I’m struggling to see how a PBS dependant can qualify for indefinite leave under the Point Based System, as the PBS dependant does not have leave under the Points Based System.

Moreover, the PBS partner is not eligible for indefinite leave under 319E as 319E(b) fails. 319E(b) fails because the applicant’s partner wasn’t granted indefinite leave to remain as a Relevant Points Based System Migrant, but under Long residence.

[r1985]

The PBS dependant will either need to apply for indefinite leave under the Points Based System if they can qualify

I’m struggling to see how a PBS dependant can qualify for indefinite leave under the Point Based System, as the PBS dependant does not have leave under the Points Based System.

Moreover, the PBS partner is not eligible for indefinite leave under 319E as 319E(b) fails. 319E(b) fails because the applicant’s partner wasn’t granted indefinite leave to remain as a Relevant Points Based System Migrant, but under Long residence.

Thanks for the reply.

My understanding is she can't get extension for sure under PBS Dependant, but posted this to see any one got ILR in this situation, completed 5 years on PBS Dependant where main applicant got ILR on 10 years route.

[CR001]

Do click on vinny's links.

She cannot apply for ILR based on 5 years PBS dependent because you applied for ILR based on long residence.

She must apply on FLR(M), which will be a new 5 year route to ILR (2 x 2.5 year visas).

From 6 April 2014, they are not able to switch into the Rules for partners of settled persons under Part 8. The PBS dependant will either need to apply for indefinite leave under the Points Based System if they can qualify, or apply for limited leave to remain as a partner under Appendix FM.

Part 8 was the transitional arrangements prior to April 2014 for PBS Dependents. She won't qualify for that as the transitional provisions are no longer in place and she has to apply under Appendix FM.

one more reference https://www.gov.uk/government/uploads/s ... 18__2_.pdf
260. You can apply for settlement up to 28 days before you will reach the qualifying period if you apply earlier than that, your application may be refused. Otherwise your qualifying period will either be the 5 years immediately before the date you apply for Tier 2 Policy Guidance (Version 01/2018) Page 62 settlement or the 5 years immediately before the date your settlement application is decided, depending which is most beneficial for you. If you have spent more than 5 years in the United Kingdom, we will only consider the most recent 5 year period.

This is not relevant due to your ILR based on long residence and not through the PBS route.

[r1985]

Thank you so much for the reply.