Can my NON-Dependent spouse apply for ILR as my Dependent

[Mayan12]

Hi - I am applying for my ILR in April, my wife who had a T2 -dependent visa, went back to her country and got herself a T-4 visa and now has a PSW on her own. We had to do this as there was no certainty in my job and she did not want to take a risk of doing her MBA in T2 -dependent visa(the college fee was huge). All along she has been living with me for the past 5 years(going to college and now working on her own visa).

Is she eligible to apply for ILR along with me?

Thanks

-Mayan.

[wpilr_nov12]

The only way she could apply at the same time as you is:
1. if she qualifies independently, and she does not
2. if she was currently as your dependent on her visa, which she is not.

However, if she now came back as our dependent, then I think she would still qualify as your dependent to apply for ILR because of the accumulated 5 years in UK as your spouse/partner. Experts would be able to add more certainty to this possibility though.

[Mayan12]

Thanks - I understand she cannot apply along with me. Assuming that I get the ILR in april - would she then be able to apply, if yes - what form?

-Mayan

[Mayan12]

Bumping. Gurus can you please have a look at my situation.

[wpilr_nov12]

First she would have to 'convert' to your dependent - if she is doing it after you have ILR, then she would convert to 'Dependent of a Settled Person'. Then she would need to review ILR criteria via that route.

[Greenie]

She will not qualify for ilr as your dependent or as the spouse of a settled person until she has completed another 5 years in the relevant category. The previous time she spent as your dependent does not count.

[wpilr_nov12]

She will not qualify for ilr as your dependent or as the spouse of a settled person until she has completed another 5 years in the relevant category. The previous time she spent as your dependent does not count.

Greenie, alternately, if the wife switched to PBS Dependent prior to the OP applying for ILR, how would the situation change? Thanks.

[Greenie]

She will not qualify for ilr as your dependent or as the spouse of a settled person until she has completed another 5 years in the relevant category. The previous time she spent as your dependent does not count.

Greenie, alternately, if the wife switched to PBS Dependent prior to the OP applying for ILR, how would the situation change? Thanks.

it wouldn't. She has to have continuous leave as his dependent for 5 years under the new rules.

[wpilr_nov12]

But nothing in Rule 319E seems to suggest that the PBS dependent needs further 5 years of UK Cohabitation since being granted PBS Dependent leave. Am I missing something?

(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,
(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e), and
(c) have spent the remainder of the 5 year period, where applicable, as 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.

[Greenie]

Sub para c)

[wpilr_nov12]

But unlike sub para (b), sub para (c) does not specify 'leave as the Partner of that Relevant Points Based System Migrant', simply says 'as the spouse or ...'

Is my reading too narrow?

[Greenie]

as the spouse or civil partner, unmarried or same-gender partner of that person at a time when that person had leave under another category of these Rules

'as the spouse' implies leave as the spouse, and in addition, the main migrant must have had leave 'under another category of these rules', so time spent when the OP had leave under tier 2, and the wife had her own independent tier 4 leave does not fall within this definition.

[wpilr_nov12]

With due respect, I beg to differ (however our interpretation is not going to change the workings of UKBA).

sub para (c) says "have spent the remainder of the 5 year period, where applicable, as the spouse or civil partner, unmarried or same-gender partner of that person at a time when that person had leave under another category of these Rules. ".

No mention of any 'dependent leave' requirement. And the OP fullfills the requirement listed in the latter part of that sentence.

I am guessing, the only thing that has changed is the required 5 years instead of 2.

[Greenie]

'another category of these rules' means leave other than PBS leave. Essentially c) allows a PBS dependent to amalgamate time spent with leave as the spouse, unmarried partner etc of the main migrant under another category of the rules with that of PBS dependent leave. See para 7.19 of the September 2012 statement of changes

http://www.ukba.homeoffice.gov.uk/sitec ... ofchanges/

[Mayan12]

Thanks wpilr_nov12 and Greenie.

Think I will get my ILR first and then apply for FLR (M) for my spouse. Will UKBA give my spouse a 5 years visa or should we do some extension half way through.

Regs
-Mayan