Wife's visa refused and help needed to re-apply

[blueskyguy]

Hi,
I am a British Citizen through Tier 1 -> ILR -> Naturalisation. My wife came to the UK in Apr 2012 on Tier 1 dependant visa(I was on Tier 1 visa then), she then extended her stay by getting PBS Dependant visa(I was on ILR then) in Sep 2013 and applied ILR using SET(M) in Sep 2016(I was a British Citizen then). My wife's visa was refused on the grounds that she was not on PBS dependant visa before 9th July 2012 and hence had to complete 5 years. But, I was under the impression that she coming to the UK on "any" dependant visa before 9th July 2012 and staying here with me for minimum 2 years she would be eligible for ILR and apparently I was mistaken. Now, can she re-apply within 14 days with a correct form? I guess I should use FLR(M) now? Has anyone re-applied after refusal with 14 days time limit and got visa approved? Please advise.
Thanks.

[CR001]

Set(M) was the wrong form because she does not hold a qualifying visa for ILR on Set(M), i.e. Spouse Settlement visa. If she did not apply for FLR(M) after you got ILR in 2013 and definitely applied for PBS Dependent, then you used the wrong form.

Can you state exactly what her BRP card states is her visa category??

Has her PBS Dependent visa already expired?

Did she apply for her visa in the UK in 2013 or from abroad?

If she has held a PBS Dependent visa since 2012, then she only requires 2 year residence to qualify for ILR on Set(O). The Immigration Rules Part 8 PBS dependents states this very clearly.

319E. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:
(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.
(c) The applicant must have, or have last been granted, leave as the partner of the Relevant Points Based System Migrant who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.
(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):
(i) If the applicant was granted leave as:
(a) the Partner of that Relevant Points Based System Migrant, or
(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years

[blueskyguy]

Thanks very much for your reply.

Yes, you assert my error that she should not have applied using SET(M) form

Her BRP card has "PBS Dependant" and she got that in Dec 2013 and valid till Dec 2016. She made that visa from within the UK. She is currently in the UK.

Can she apply with FLR(M) form within this 14 day period after receiving the refusal letter and we were also given an option to appeal but don't think that's appropriate as we did mistake!

[CR001]

FLR(M) will reset her clock to zero and a new 5 year route to ILR (2 x 2.5 year visas).

I am not sure if a Set(O) application would be successful now given that her visa has already expired.

[blueskyguy]

Thanks again.

What visa she could have applied earlier in Nov 2016 so that she could preserve her "PBS Dependant" stay (3 years from Sep 2013 till Nov 2016) to apply for ILR sooner then?

[CR001]

She could have applied for ILR on Set(O) after 2 years on PBS dependent visa in 2014 or she could have extended her PBS Dependent visa in 2016 or applied for ILR on the correct form.

Can you post the text of the refusal, exact words, but taking out any personal identifiable info?

[blueskyguy]

Here is the ILR consideration they made -

"From you immigration history outlined above, you entered the UK as a dependant of a points based migrant. You then applied for ILR as the Spouse of [me]. Your application does not meet the requirements for consideration for ILR under Part 8 or Appendix FM Immigration Rules.

In order to consider your application for ILR, you need to meet the eligibility requirements of Paragraph 287 under Part 8, or Paragraph R-ILRP.1.1. of Appendix FM of the Immigration Rules

Part 8 - Paragraph 287 states:

287.(a) The requirements for ILR for the spouse or civil partner of a person present and settled in the UK are that:

(d) the applicant was admitted to the UK or given and extension of stay as the spouse or civil partner of a Relevant Points Based System Migrant; and then obtained an extension of stay under paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here;

As your last leave was not granted under paragraphs 281 to 286 of the Rules and you have not completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here the Secretary of State is satisfied that no further consideration of you ILR application under the spouse rules of Part 8 can take place.

Appendix FM - Paragraph E-ILRP.1.3 states:

E-ILRP.1.3. The applicant must at the date of application have completed a continuous period of at least 60 months with limited leave as a partner under paragraph R-LTRP.1.1(a) to (c) or in the UK with entry clearance as a partner under paragraph D-ECP.1.1;or a continuous period of at least 120 months with limited leave as a partner under paragraph R-LTR.P.1.1(a), (b) and (d) or in the UK with entry clearance as a partner under paragraph D-ECP1.1.; or a continuous period of at least 120 months with limited leave as a partner under a combination of these paragraphs, excluding in all cases any period of entry clearance or limited leave as a finance(e) or proposed civil partner.

As you have never been granted leave to enter or remain in the UK as a partner under paragraph R-LTRP.1.1(a) to (c) or paragraph R-LTRP.1.1(a), (b) and (d) of Appendix FM of the Immigration Rules the Secretary of State is satisfied that no further consideration of you ILR application under the spouse rules of Appendix FM can take place."

I am now a British Citizen and not sure what form to use! Is there any other possibility to apply if not FLR(M) as this would reset her clock ?

[CR001]

Ok, that doesn't state anything about the PBS Dependent needing 5 years residence.

It simply means you failed to meet the 5 year residence requirement under Appendix FM to qualify for ILR on Set(M).

[blueskyguy]

"As your last leave was not granted under paragraphs 281 to 286 of the Rules and you have not completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here the Secretary of State is satisfied that no further consideration of you ILR application under the spouse rules of Part 8 can take place."

1. Does the above point say that she needed another 2 years to complete before she would become eligible to use SET(M)?

2. Can she use PBS Dependant to extend her visa now and hoping she could go for SET(M) once she finishes 5 years on PBS Dependant? (I am not sure if I can do this as I am already a British Citizen now though attained through Points Based visas earlier)

Also, sorry but to correct you in one of your earlier replies that she could not have used SET(O) to apply for ILR because she was only "PBS Dependant" since Sep 2013 before she was "Tier 1 Dependant".

[CR001]

"As your last leave was not granted under paragraphs 281 to 286 of the Rules and you have not completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here the Secretary of State is satisfied that no further consideration of you ILR application under the spouse rules of Part 8 can take place."

1. Does the above point say that she needed another 2 years to complete before she would become eligible to use SET(M)?

No it does not. The Spouse settlement visa rules pre July 2012 was also a visa for 2 years and then ILR on Set(M).

2. Can she use PBS Dependant to extend her visa now and hoping she could go for SET(M) once she finishes 5 years on PBS Dependant? (I am not sure if I can do this as I am already a British Citizen now though attained through Points Based visas earlier)

She cannot apply on form SET(M) as a PBS Dependent. She uses Set(O) as PBS Dependent. I am not sure, as already stated, whether she can apply for ILR using Set(O) due to her visa having already expired.

Also, sorry but to correct you in one of your earlier replies that she could not have used SET(O) to apply for ILR because she was only "PBS Dependant" since Sep 2013 before she was "Tier 1 Dependant".

Tier 1 dependent and PBS dependent is the same visa and Set(O) IS the correct form.

[blueskyguy]

Sorry, if I understood correctly, you're saying that she could have used SET(O) form to be eligible for ILR when we applied with wrong form SET(M) on the basis of 2 year stay qualifying period as PBS Dependant visa?

Also, are the below two visas same?

Dependant visa of Tier 1 General Migrant visa holder : Visa Tier 1 (General) Partner
Dependant visa of ILR holder : PBS Dependant Leave to Remain

Thanks.

[CR001]

Sorry, if I understood correctly, you're saying that she could have used SET(O) form to be eligible for ILR when we applied with wrong form SET(M) on the basis of 2 year stay qualifying period as PBS Dependant visa?

Yes, she could have applied on Set(O) in April 2014 as a Tier 1 (PBS) Dependent with 2 years residence.

Also, are the below two visas same?

Dependant visa of Tier 1 General Migrant visa holder : Visa Tier 1 (General) Partner
Dependant visa of ILR holder : PBS Dependant Leave to Remain

It is the same visa. Tier 1 General dependent IS a PBS (points based system) Dependent visa if the second one definitely says 'PBS Dependent Leave to Remain' and NOT 'Spouse visa'.

[blueskyguy]

Oh okay thank you very much for your time and replies.

I am speaking to a Solicitor and would like to proceed.

Thanks again.