urgent help please - ILR and HSMP

[ap2004]

I would appreciate your help on my case. the facts are:

I entered in the UK as my wifes dependent in Dec 2000. I got 2 years WP in Dec 2002, so i changed my status from dependent to WP holder. As my wifes WP expired in April 2003, she became my dependent and lost 2.5 years of WP period in the process. Otherwise, she should have been eligible for ILR in 2004.

She got WP in may 2004 for 5 years and so she moved back to WP. My WP expired in Dec, so I became her dependent in Sept 04. She xferred her job and WP in 2006,hence, her WP is now valid until 2011.

I then applied for HSMP in June 2007 and is valid unti June 2009. Hence, I will be eligible for ILR in 2010 because of 10 years legal resident OF UK.

The real question now is that as my wifes ILR is due in May 2009. Therefore, I have 2 options to get ILR:
1. Extend HSMP in June 2009 and acquire ILR in Dec 2010. or
2. become my wifes dependent IN May 2009 and get ILR with my wife in May 2009. However, I am not sure whether I can become her dependent or not. Even if I become her dependent, when can I get ILR?

I have been told about a case wherein a visa of spouse has been refused as she and her husbande were on a seperate WP. Home office refused her application for dependent visa as her WP has bennconsidered as a seperate WP/case.Hence, I am bit worried if i am unable to get TIER 1 visa EXTENSION in June 2009.

Also what is the definition of dependent? Please can you advise the clause related to this from home office rule books.

Please can you advise which is the best option. or should I take legal advise.

Many thanks in advance.

AP2004

[vinny]

A work permit dependant usually requires a valid initial entry clearance or extension as such (194-196F). See also Chapter 5 - Employment > Section 9 - Dependants of persons in sections 1 - 8.

[ap2004]

I was my wifes dependent and had initial entry clearance when I entered first time in the UK in Dec2000. However, I switched from dependent to WP, WP to dependent and dependent to HSMP since then.

I am holding HSMP visa now. Does that mean I am eligible for ILR if I again become my wifes dependent.Please can you clarify. Thanks
AP2004

[vinny]

If you become your wife's dependant again, then I think that you may be included in her settlement application. However, I am not sure if you are able to switch to dependant status in-country.

When you changed from WP to dependant, did you apply for entry clearance as a dependant?

[ap2004]

I transferred from WP to Dependent in the UK only and had applied as a dependent. I didnt go to my country of origin to change WP status to Dependent category.

However, I applied for entry clearance from my country of origin when I applied for entry clearance under HSMP last year. I believe that I can become dependent within the UK. Isnt that correct now? In view of this, do you mean that I can become her dependent and apply for ILR as a part of her application next year? How can I make sure that I am 100% correct in this case. OR do I need to take legal advise?

Thanks
AP2004

[vinny]

Normally,

2.2. Switching

Entry clearance is mandatory for entry in this category. In after-entry cases, however, where the applicant was not admitted as a spouse or child, caseworkers may waive the no-switching provision in the Rules if they are satisfied that all the other requirements are met and that exceptional compassionate circumstances prevail. For UK ancestry dependants caseworkers may waive the no-switching provision in the Rules if they are satisfied that all the other requirements are met. Any case which falls to be refused, however, should be refused on no-switching grounds.

Perhaps they may let you switch again. However, you also should be sure that your wife will definitely qualify for settlement in 2009, following her change of employment. Perhaps it may be worth talking to an OISC adviser about your strategy. Don't forget the KOL requirements for both of you.

[ap2004]

My wife will be eligible for ILR as she has got 5 years continuous WP since 2004. Are you saying that I can switch tas her dependent and can get ILR with her. Or you are not sure.

[vinny]

If you become your wife's dependant again, then I think that you may be included in her settlement application. However, I am not sure if you are able to switch to dependant status in-country.

196E. Indefinite leave to remain in the United Kingdom for the spouse or civil partner of a person who has or has had leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) may be granted provided the Secretary of State is satisfied that each of the requirements of paragraph 196D is met.