Urgent: ILR Refused : Tier 2 / Settled person Dependent

[SMIT101]

Hi All,

My wife's ILR application has been refused today by the case worker. Below are some details of my wife's case, can you please let us know what are our options.

1. Me and wife first arrived in UK in May 2009 on independent work visas, we are married since Feb 2009
2. My wife applied & received Tier 2 dependent Entry clearance visa from India in Aug 2013.
3. I was granted ILR in 2014 as per 5 year rule and in June 2018 i got my British passport.

4. My wife applied for dependent visa based on my ILR visa in 2016 under FLR(M) - was granted limited leave to remain, as dependent of a settled person - Her Visa is valid till Dec 2018.

5. We assumed that, she can apply for ILR as she has been my dependent though 5 years period since Aug 2013. We applied to ILR In person today (10.10.2018) and the application was refused. Case worker mentioned that 5 years period as dependent are not complete as she changed her visa type in 2016 ( A280B ) from Tier 2 dependent to dependent of a settled person.

6. Now they have given following option in the refusal letter
6.1 Pay 500 pounds for immigration health surcharge and they can give limited leave to remain for 30 months under the "10 year partner route". Under R-LRTP.1.1 & D-LRTP.1.2

6.2 If we do not pay 500 pounds, ILR application will be refused and "SHe will not be granted limited leave to remain, ILR fee will not be refunded, she may not be able to appeal this decision and she may be liable for removal from UK".

Can you please let us know if case workers decision is correct?

7.1 - if yes what does option 6.1 means, does it mean if we choose this option then we will have wait for another 10 years? i.e. apply for ILR in 2028?
or can we apply for ILR in 2019 as she will complete 10 years in UK under different visas (work / dependent) and we have been married since Feb 2009.

7.2 For option 6.2, Does it mean she can't reapply for Dependent visa as a spouse of settled person again? Her Current dependent visa is valid till Dec 2018. I am assuming in case of ILR Visa refusal she does get a chance for reapplying under correct application.
i.e. in our case as a extension of current leave to remain under as dependent of settled person.

Any help, suggestion will be really helpful. This whole experience has been really stressful and disappointing. To add to the misery seems like Home office is trying to trap us in an additional 10 year partner year loop.

Thanks

[ahasnaini]

Yes that is correct, she should have renewed tier 2 dependent, until the 5 years were over

[SMIT101]

thanks for the reply , though the option home office is giving doesnt sound right.. any advise on it?

[CR001]

2. My wife applied & received Tier 2 dependent Entry clearance visa from India in Aug 2013.
3. I was granted ILR in 2014 as per 5 year rule and in June 2018 i got my British passport.

Were you advised by someone to change her visa from PBS dependent to FLR(M)?? She could have continued extending her PBS Dependent visa and applied for ILR on Set(O) had you not switched her visa.

4. My wife applied for dependent visa based on my ILR visa in 2016 under FLR(M) - was granted limited leave to remain, as dependent of a settled person - Her Visa is valid till Dec 2018.

Applying on FLR(M) in 2016 would have reset her clock to zero for ILR based on 5 years residence. You should have applied for FLR(M) extension and not ILR.

5. We assumed that, she can apply for ILR as she has been my dependent though 5 years period since Aug 2013. We applied to ILR In person today (10.10.2018) and the application was refused. Case worker mentioned that 5 years period as dependent are not complete as she changed her visa type in 2016 ( A280B ) from Tier 2 dependent to dependent of a settled person.

She needs 5 years as a PBS Dependent OR 5 years on FLR(M). You cannot combine the two different categories to make up 5 years.

6. Now they have given following option in the refusal letter
6.1 Pay 500 pounds for immigration health surcharge and they can give limited leave to remain for 30 months under the "10 year partner route". Under R-LRTP.1.1 & D-LRTP.1.2

You should pay the IHS for the 30 months leave to remain. As her visa is still valid, you could also just reapply for FLR(M) or ask HO to issue FLR(M) extension.

6.2 If we do not pay 500 pounds, ILR application will be refused and "SHe will not be granted limited leave to remain, ILR fee will not be refunded, she may not be able to appeal this decision and she may be liable for removal from UK".

Yes, that is the reality.

Can you please let us know if case workers decision is correct?

Yes. She didn't qualify for ILR on Set(M). The rules changed in April 2014, prior to this date PBS dependent and FLR(M) time could be combined.

7.1 - if yes what does option 6.1 means, does it mean if we choose this option then we will have wait for another 10 years? i.e. apply for ILR in 2028?
or can we apply for ILR in 2019 as she will complete 10 years in UK under different visas (work / dependent) and we have been married since Feb 2009.

She can apply for ILR LR in 2019 once she reaches 10 years legal stay and meets all the requirements.

7.2 For option 6.2, Does it mean she can't reapply for Dependent visa as a spouse of settled person again? Her Current dependent visa is valid till Dec 2018. I am assuming in case of ILR Visa refusal she does get a chance for reapplying under correct application.
i.e. in our case as a extension of current leave to remain under as dependent of settled person.

She could later, but she will still qualify to 10 years ILR if you accept what HO has offered. You should be pleased that HO has not refused her ILR outright with no alternative offer.

[SMIT101]

Thank you CR001 for the explanation, by going through various posts on this forum i understood the mistake we did in 2016 by applying for FLR(M).

You should pay the IHS for the 30 months leave to remain. As her visa is still valid, you could also just reapply for FLR(M) or ask HO to issue FLR(M) extension.

I am concerned if we go ahead with this option, then we would have to wait for 10 more years to get an ILR, i.e. apply for ILR in 2028, which i again a long wait + a lot more money.

She could later, but she will still qualify to 10 years ILR if you accept what HO has offered. You should be pleased that HO has not refused her ILR outright with no alternative offer.

I am trying to evaluation what is the best option at he moment, that is, accept the 10 year partner route or reapply for FLR(M) Extension and apply for ILR in 2021. Its confusing as the offer HO has given doesn't give more details about 10 year partner route.

[CR001]

All visas/legal stay count for ILR based on long residence. Not sure why you believe you would have to wait till 2028.

[CR001]

See the long residence guidance notes link below.

https://assets.publishing.service.gov.u ... -v15_0.pdf