Switching into the route for Family Members query

[limmilim]

Hi,

My husband is a NHS doctor in training and he has been living in the UK for almost 10 years (10 years in October 2013). He currently has a Tier 1 Post Study Work visa which is expiring in July 2013. We are exploring the options of applying under the Dependant of a Tier 1 PBS Migrant route. For your information, I have Indefinitely Leave to Remain who last held leave in Tier 1 of the Points Based System. This, as I understand, restricts my husband from being eligible under the dependant of a settled person visa route.

I would like some clarifications as to one of the terms and conditions for applying as a Dependant of a Tier 1 PBS Migrant. Under term no 31 of the policy (http://www.ukba.homeoffice.gov.uk/sitec ... olicy1.pdf),

‘Switching’ or moving into the route for Family Members of Tier 1, 2 or 5
migrants
31. If you are the family member of a Tier 1, 2, or 5 migrant, switching is permitted when applying
as:
• a family member who has or last had entry clearance or leave to remain as the partner or child of a person who had leave under another category and who has since been granted, or is, at the same time, being granted leave to remain as a relevant Points Based System migrant.

I infer that my husband has to meet this term as he is switching from a Tier 1 PSW visa to a dependant of a Tier 1 PBS migrant visa. Am I right? If yes, what does it mean by 'a family member who has or last had entry clearance or leave to remain......'? His last leave to remain is as a Tier 1 PSW. Does it mean that he is not allowed to switch into this route, thereby making him not eligible to apply via this route?

Your advice on this is much appreciated.

Many thanks,
Limmi

[CR001]

He needs to apply as spouse of settled person. You have misunderstood the rule you have quoted, as many people do because they are confusing, in that if your husband has not been a dependent on your PBS visa, he cannot switch into PBS dependent if you have ILR.

He needs to apply using FLR(M) as he has not and is not your dependent for visa purposes.

[Amber]

Hi,

My husband is a NHS doctor in training and he has been living in the UK for almost 10 years (10 years in October 2013). He currently has a Tier 1 Post Study Work visa which is expiring in July 2013. We are exploring the options of applying under the Dependant of a Tier 1 PBS Migrant route. For your information, I have Indefinitely Leave to Remain who last held leave in Tier 1 of the Points Based System. This, as I understand, restricts my husband from being eligible under the dependant of a settled person visa route.

I would like some clarifications as to one of the terms and conditions for applying as a Dependant of a Tier 1 PBS Migrant. Under term no 31 of the policy (http://www.ukba.homeoffice.gov.uk/sitec ... olicy1.pdf),

‘Switching’ or moving into the route for Family Members of Tier 1, 2 or 5
migrants
31. If you are the family member of a Tier 1, 2, or 5 migrant, switching is permitted when applying
as:
• a family member who has or last had entry clearance or leave to remain as the partner or child of a person who had leave under another category and who has since been granted, or is, at the same time, being granted leave to remain as a relevant Points Based System migrant.

I infer that my husband has to meet this term as he is switching from a Tier 1 PSW visa to a dependant of a Tier 1 PBS migrant visa. Am I right? If yes, what does it mean by 'a family member who has or last had entry clearance or leave to remain......'? His last leave to remain is as a Tier 1 PSW. Does it mean that he is not allowed to switch into this route, thereby making him not eligible to apply via this route?

Your advice on this is much appreciated.

Many thanks,
Limmi

After 10 years of continuous legal residence in the UK he may be eligible to apply for settlement set(lr). If he extends his leave to remain as above using flr(m) then he can apply for settlement from 28 days before his 10 years period.

[limmilim]

He needs to apply as spouse of settled person. You have misunderstood the rule you have quoted, as many people do because they are confusing, in that if your husband has not been a dependent on your PBS visa, he cannot switch into PBS dependent if you have ILR.

He needs to apply using FLR(M) as he has not and is not your dependent for visa purposes.

Hi CR001,

Can you please elaborate further and confirm that this is as per the rule after 8 July 2012? This is really confusing as on the UKBA website, it says that

"You cannot apply in a partner category if you:

- are the spouse or partner of a person who is settled in the UK or has British citizenship if their most recent permission to stay was under tiers 1, 2, or 5 of the points-based system; and
- you do not qualify for settlement yet."

Also, on the guidance, it is mentioned that

"You can apply as a PBS Dependant if you meet the criteria
- the spouse or partner of a person with indefinite leave to remain or British Citizenship who last held leave in Tier 1, 2, or 5 of the Points Based System and you do not yet qualify for indefinite
leave to remain".

Am I not a person who is settled in the UK (ILR) with my most recent permission to stay under Tier 1 of the PBS? What is the definition of a person with indefinite leave to remain who last held leave in Tier 1...?
My visa history status is as follows:

Tier 2 Work Permit - Aug 2006- Nov 2010
Tier 1 General - Nov 2010 - December 2011
ILR - May 2012 (application sent in Dec, granted in May 2012) until now

Many thanks,
Limmi

[vinny]

CR001 is correct.

The quoted wording does not accurately reflect the requirements of the Immigration rules.

He cannot apply for further leave to remain as a PBS dependant, if he does not have, nor have last been granted, leave as your dependant (319C(h)(i)).

Amber's suggestion is also good. Moreover, he may also vary a valid in-time undecided application to ILR under Long residence, when eligible.

[limmilim]

CR001 is correct.

The quoted wording does not accurately reflect the requirements of the Immigration rules.

He cannot apply for further leave to remain as a PBS dependant, if he does not have, nor have last been granted, leave as your dependant (319C(h)(i)).

Amber's suggestion is also good. Moreover, he may also vary a valid in-time undecided application to ILR under Long residence, when eligible.

Thanks Vinny. Does this mean that although he is not eligible to apply for further leave to remain as a PBS dependant, he can however apply for leave to remain as a spouse of a settled person, form FLR(M)?

Applying for ILR under 10 year long residence is also in the plan once the 10 year term comes into effect (in September). We wanted a visa to breach the gap between the expiry of his Tier 1 PSW and before he is eligible to apply under the 10 year rule ILR.


Regards,
Limmi

[Amber]

CR001 is correct.

The quoted wording does not accurately reflect the requirements of the Immigration rules.

He cannot apply for further leave to remain as a PBS dependant, if he does not have, nor have last been granted, leave as your dependant (319C(h)(i)).

Amber's suggestion is also good. Moreover, he may also vary a valid in-time undecided application to ILR under Long residence, when eligible.

Thanks Vinny. Does this mean that although he is not eligible to apply for further leave to remain as a PBS dependant, he can however apply for leave to remain as a spouse of a settled person, form FLR(M)?

Applying for ILR under 10 year long residence is also in the plan once the 10 year term comes into effect (in September). We wanted a visa to breach the gap between the expiry of his Tier 1 PSW and before he is eligible to apply under the 10 year rule ILR.


Regards,
Limmi

Yes, assuming you satisfy the requirements. It may be the case that you apply for flr(m) by post and the case is not decided by the time your spouse is eligible for set(lr), in such case you can vary the valid in time application from flr(m) to set(lr).