SET(0) or (M)

[benohart]

Hi,
I am an Australian citizen and have been in the UK for almost 5 years.
1.5 years Abroad from Jan 2009 - June 2010.
My Current VISA is Accompany Spouse Visa dependent on my wife who had an ancestry visa, she now has her UK passport and my VISA is about to expire (March 26th).
Can I go straight from my Accompany Spouse VISA to SET (M) now that my wife is a British Citizen?

Thanks for your help/advise!
Ben

[CR001]

Your query was already answered in your previous post :

http://www.immigrationboards.com/viewto ... ht=#771471

Your CANNOT apply using SET(M) as you did not get entry clearance as the spouse of a British or settled person (form VAF4 or in country FLR(M)).

You need to apply using SET(O) as this is the form for the category visa you currently have on UKBA records and you need to meet the standard requirements to apply as well.

In response to your last question in your previous post :

Thanks Again CR001.

So I guess if I apply for ILR first, there is no rush to get BC. So I can do this any time afterwards. Correct

So what is the advantage in applying for SET (O) vs SET (M) - not applicable to you as already mentioned and both applications have the same outcome if approved : ILR (it is only the category of the preceding visa that differs)[/color]

As my wife now a British passport, I would have thought SET (M) to be the best route? No, as you already explained above

Cheers
Ben

[benohart]

Ok, but how does husband of a British citizen fall into any of the below categories? Or is my application not based on my wife's status?
If I don't meet any of the below, does this mean I need to use FLR(M) first?

1 FOR WHICH APPLICATIONS MUST YOU USE FORM SET(O)?
Form SET(O) must be used if you are applying for indefinite leave to remain in one of the following cat- egories or routes:
- work permit holder
- employment not requiring a work permit
- businessperson
- innovator
- investor
- highly skilled migrant
- highly skilled migrant under the terms of the
HSMP indefinite leave to remain (ILR) judicial
review policy document - self-employed lawyer
- writer, composer or artist

[CR001]

As your wife was on UK Ancestry and you applied as her dependent, this is relevant to you.

http://www.ukba.homeoffice.gov.uk/visas ... ormset(o)/

http://www.ukba.homeoffice.gov.uk/visas ... tiontypes/

Form SET(O)
Form SET(O) is for many other types of settlement applications. You can currently use form SET(O) if you are in one of the following immigration categories and you have been living in the UK in a relevant category for 5 years:

Tier 1 or Tier 2 of the points-based system (excluding the Post-study work category of Tier 1)
work permit holder
businessperson
innovator
investor
representative of an overseas newspaper, news agency or broadcasting organisation
private servant in a diplomatic household
domestic worker in a private household
overseas government employee
minister of religion, missionary or member of a religious order
airport-based operational staff of an overseas-owned airline
self-employed lawyer
writer, composer or artist
UK ancestry

[benohart]

Ok, thanks Again.

So in this category, I need to have lived in the UK for 5 years.
Does it matter that I returned to Australia for 1 year & 7 months?

Cheers
Ben

[CR001]

Guidance for caseworkers in the link below :

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

When did your wife obtain ILR and then subsequently BC? Can you post all the timelines - visa issue date for both of you, date of initial entry to the UK, dates of any extension and the details ask for your wife in my first question.

I stand corrected, but I think that as a Ancestry dependent, you would have had to apply for ILR with your wife or if you did not meet the residential requirements at that time, apply for further leave to remain on FLR(M) (spouse of settled person) once your wife's ILR was granted, which would mean you would then be able to apply for ILR on SET(M) if you had been on FLR(M).

[benohart]

No problems, thanks for your help.

Both Visa Granted on 20/03/08

Wife - UK Ancestry
Me - To ACC SPOUSE/CP

2-May-08 Arrived in the UK
2-Jan-09 Temporarily Left the UK
22-Jun-10 Returned to the UK

My wife did not apply for ILR as her mother is British, she applied directly for a British Passport last month and it was granted. She should have done this initially but we were wrongly advised and she ended up with Ancestry instead.

My VISA expires 20/03/2013.

[Obie]

You would have been covered under paragraph 196D had your wife applied for ILR. Now that she hasn't, it makes matters a bit complicating for you under Paragraph 196D. You may be expected to apply under the new rules, which means you may have to wait for a further 5 years to secure ILR, which kind of seem ridiculous. The Option is open for you wife to apply for ILR aswell in the Spring, even though she may not need it.

(i) is married to or civil partner of a person who has limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) and who is being granted indefinite leave to remain at the same time; or

(ii) is married to or a civil partner of a person who has indefinite leave to remain in the United Kingdom and who had limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) immediately before being granted indefinite leave to remain; and

(iii) meets the requirements of paragraph 194(ii) - (v); and

(iv) has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and

(v) was admitted with a valid United Kingdom entry clearance for entry in this capacity; and

(vi) fall for refusal under the general grounds for refusal; and

(vii) must not in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

[benohart]

Thanks Obie,

From Bad to Worse

So my options are FLR(M) fairly straight forward right? but this means another 5 years for Citizenship.

Or

SET (O) and risk being rejected, would I also loose the fee?
Will they show any discretion under some circumstances or is it black and white?

Or is there a way of clarifying exactly what my options are before applying?

Thanks Again
Ben

[benohart]

Can anyone provide any more help with this?

At this stage, I am thinking I may need to get some advice from an immigration lawyer as it appears my case which I thought was simple is actually rather complicated

[Obie]

Ben, try not to get worried, it is not the end of the world. You have a very long way to go.

28 Days prior to the expiry of your visa, make an application on Set (o), on a covering letter state your circumstance, and the fact that you held this visa on a genuine basis, that on arrival in Britain, it became apparent to your wife, that she is British, in those circumstances, it will be unreasonable for her to apply for ILR.

However you believe that seen as you have been in the UK for this length of time, and your wife did not make any false submission in obtaining this information, and that you would have obtain ILR sooner if you had applied as a spouse of a British Citizen, you are asking for discretion to be exercised in your favour, and ILR to be issued.

If they refuse to issue ILR, then make a claim for JR. It will be totally ridiculous for them to expect you to wait for a further 5 years,

[benohart]

Thanks again Obie,

I have been away for a few weeks and am now trying to get all of this together. My main concern is I am heading to Australia for three weeks on march 22nd and obviously cannot afford any hold ups with this.

If I apply on SETO on the premium service and a decision cannot be made on the day due to the above, what happens then? do they hold onto my passport until a decision is reached?

Also, under the circumstances, if you say I should use SETO (ancestry) as that is what I would have used had my wife also been completing ILR. Isn't it also possible I should be using SETM as that is the category I would have been under had she applied for citizenship in the 1st place?

Thanks again.

Ben

[benohart]

One last point on this,

I suspect you will still insist SET(O) is the correct form, if so, will I not then have issues with the fact I spent 18 months abroad in the past 5 years?

This would not have been an issue with SET(M) but I think it is with SET(O).

I must point out that not getting ILR is not a huge issue for me. I'm content with my AUS passport but it would be nice to not have. However, at this stage, my main concern is being able to come and go as I please, I do not want to be stuck in the UK waiting for a decision. Under this circumstance, would you suggest I should maybe just go for FLR(M) or do you think my case for SET(O) is just as valid??

Thanks again
Ben

[Obie]

Hi Ben, these are the Different Settlement forms, and the category of applicants who can use them.

As i said before, you best bet is to apply using Set (O) , and inform the HO, that your wife is not applying for ILR, as it will be otiose, as she is a British Citizens, something she unaware of, when she applied for ancestry visa.

You are therefore requesting for you application to be treated as if you are a person whose spouse has secured ILR on the basis of Ancestry.

[benohart]

Thanks Obie,

Life in UK test booked and SETO Prem Service appoint booked for March 11.

Does my wife need to attend this appointment with me?
Also, under the category, would I select ancestry or other as ancestry really only applies to my wife?

If ILR is not approved on the day, will they hold onto my passport pending the outcome?

Thanks Again for your help, will keep you posted on the progress

Ben

[benohart]

Thanks Obie,

Life in UK test booked and SETO Prem Service appoint booked for March 11.

Does my wife need to attend this appointment with me?
Also, under the category, would I select ancestry or other as ancestry really only applies to my wife?

If ILR is not approved on the day, will they hold onto my passport pending the outcome?

Thanks Again for your help, will keep you posted on the progress

Ben

After speaking to two separate OISC approved Immigration law firms, I have cancelled my appointment for SET(O) and will be applying for FLR(M). Both advised that I will be refused under the circumstances.

Although I agree this is ridiculous as I have spent 5 years here and am married to a British citizen, I cannot afford to be without a VISA as I am overseas regularly. I would love to hear from anyone else who has been in a similar situation and what was the outcome.

Thanks
Ben

[benohart]

UPDATE

Obie, I should have taken your advise!

I arrived at the appointment in Cardiff, I gave the case worker a brief summary of the situation. She advised she would have no problem granting ILR under the circumstance! This was great news, except I had not completed life in the UK test as it's not required for FLRM!!

Due to my travel plans, the only option was to continue with the FLRM application.
They did at least grant it under the old rules meaning I can go for ILR in 2 years and not 5.

Oh well, for now I am sorted... Thanks for your advise Obie, If only I had not phoned the so called OISC approved law firms, all of which were endorsed on the UKBA website. What a JOKE!

[Obie]

Don't bit yourself, just the extra cash you have spent. I am sure you will make up for it. In any event the Life in the UK test would have been an issue.

It is perfectly natural and normal for people not to be confident with advice they are given by strangers on a public forum.

At least now, you can embark on your down under vacation.

Wish you all the best mate.

[benohart]

Thanks mate...

Can't wait to get back down under only one week to go...