Can my wife apply for ILR now?

[weiw3]

Hi all,

I am new here.

My wife's situation is -

1. First Entry Clearance granted in Jan 2011, using Work Permit Dependent
2. Extended Visa in Aug 2012 as ILR Spouse, valid for 2.5 years

My question is, can she apply for ILR now under the 2 years rule? Or, she has to extend her spouse visa for another 2.5 years first, and then apply for ILR after she serves her 5 year at the end of the 2nd 2.5 years visa?

Any idea?

BTW, I am a British now and my wife is a Chinese.

[physicskate]

Hi all,

I am new here.

My wife's situation is -

1. First Entry Clearance granted in Jan 2011, using Work Permit Dependent
2. Extended Visa in Aug 2012 as ILR Spouse, valid for 2.5 years

My question is, can she apply for ILR now under the 2 years rule? Or, she has to extend her spouse visa for another 2.5 years first, and then apply for ILR after she serves her 5 year at the end of the 2nd 2.5 years visa?

Any idea?

BTW, I am a British now and my wife is a Chinese.

It seems she was granted a spouse visa in line with the new rules. She needs to spend 5 years on a spouse visa in order to apply for ILR.

[weiw3]

When did the new rule come into force?

[physicskate]

When did the new rule come into force?

6 July 2012. Under the old rules, a spouse visa was granted for 2 years (24 months). Because your spouse's visa was granted for 30 months, she seems to be granted under the new rules. If her application was made before 6 July 2012, and this is a mistake, it really should have been contested when it was granted.

[weiw3]

I think her visa application was put in after I have got my ILR, which was in Aug 2012. But her dependent visa was granted way before the new rule came into force. Will they not treat that as a continuously immigration status? Because, by the time she extended her visa first time, she have been in the country more than a year, which should be taken into account, since the new rule was not introduced at the time. We all thought she only need to serve two years period as my dependent/spouse, before she can apply her settlement at the time.

[physicskate]

I think her visa application was put in after I have got my ILR, which was in Aug 2012. But her dependent visa was granted way before the new rule came into force. Will they not treat that as a continuously immigration status? Because, by the time she extended her visa first time, she have been in the country more than a year, which should be taken into account, since the new rule was not introduced at the time. We all thought she only need to serve two years period as my dependent/spouse, before she can apply her settlement at the time.

From 6 April 2014, time on PBS dependent cannot be added to FLR(m). Basically it reset her clock. Someone will hopefully correct me if I am wrong.

[weiw3]

I was not on a PBS when I had my WP. It was an old WP. She was granted Entry Clearance as my dependent on that, than when I got my ILR in 2012, she applied for her extension.

[vinny]

She could have applied for ILR with you when you applied for ILR from non-PBS work permit.

Perhaps she still is able to, under 196E.

[weiw3]

Vinny, didn't think she could. She wasn't in the UK more than 2 years when I applied for my ILR.

[vinny]

There is no 2-year restriction for non-PBS work permit dependants.

[weiw3]

Oops...didn't know that! Can she still apply now?

[vinny]

Yes, if she satisfies 196E, then she may apply for SET(O) now. Do read the rules.

[weiw3]

Which category shall she apply? Work permit holder dependant? But I am not on work permit since Aug 2012.

[vinny]

The applicable rule (category) is 196E, if she satisfies all its requirements. I think that she is eligible, but do read the rules carefully, if I'm mistaken.

Note 196D(i)(2), etc. Moreover, 196D(ii) doesn't require 194(i) nor 194(viii)!

SET(O) (Dependant of a work permit holder - if you were a work permit holder immediately before being granted ILR).

However, if she applies for SET(M) under Appendix FM, then her time spent for SET(M) may have been reset, starting from when she got FLR(M).

[Amber]

Did you settle on ILR as a work permit applicant or PBS applicant?

[weiw3]

Hi Vinny, she applied her visa last time usin FLR(M).

Amber, I settle on ILR as a work non-PBS permit applicant.

[vinny]

Hi Vinny, she applied her visa last time usin FLR(M).

I'm aware of that. 196D(iv) doesn't exclude that possibility. i.e. It permits that possibility.

Can you see anywhere that would make 196F applicable?

[weiw3]

Hi Vinny, I have booked in with Solihull PEO for Thursday for her SET(O) application. All documents are in place apart from her work contract. She is employed by me... The contract is not required on the application form. Shall I provide one?

[weiw3]

Vinny, I just realized that 196D applies to "the partner of a person who has or has had leave to enter or remain in the United Kingdom under ..." I am not on any leave to remain now. Does it matter? Would it make this clause invalid for my wife's application? Cheers!

I read and find that 196F doesn't apply to her.

Hi Vinny, she applied her visa last time usin FLR(M).

I'm aware of that. 196D(iv) doesn't exclude that possibility. i.e. It permits that possibility.

Can you see anywhere that would make 196F applicable?

[Amber]

It says has or has had, past tense.

[vinny]

Note 196D(i)(2), etc.

[weiw3]

I thought about that as well, but not quite sure. My native language is Chinese Thanks for pointing it out, Amber!

It says has or has had, past tense.

[weiw3]

Verified! Cheers!!!

Note 196D(i)(2), etc.

[vinny]

Good luck!

Print out the Immigration rules and take the printout with you. You may have to refer 196E, etc., to the caseworker.

[weiw3]

Yes, Vinny, that is the plan. Thanks for all your advice! And Amber's as well! You guys rock!