Dependent ILR with GAP+New Entry clearance

[varghesejim]

Hello,

I am eligible for ILR this month after finishing 5 years in tier1 (general). We would like to know if my wife is eligible for ILR as a dependent with a two separate entry clearances.

Time line for my wife.

First entry clearance start date: August 2009
Entry to UK: Sep 2009
Travel to home country: March 2012(after 2.5 years in uk)
visa expiry: July 2012
Second Entry clearance start date:December 2012
Second Entry to UK: March 2013(gap of one year out of country)

Before she got the second EC, the probationary period for dependents changed from 2 years to 5.

Do we have any chance for she getting ILR with me this month as per the original 2 year requirement?

[Amber]

Unlikely.

[varghesejim]

Thanks Amber.

The rule changes seems quiet unfair. Typically people coming to UK with an intention to settle and looking at the rules and options for the same(this includes family life). It seems unfair that they change the rules from the ones that was existent at the time of original EC application of the main applicant . In my case it was 2 years for my wife (without any continuous leave requirement) , and it is just not right to change it to 5. In my opinion, the dependents rule has to stay same until the main applicant maintains the leave.

I am just wondering is there any way to legally challenge the rule changes? When dealing with human lives, UKBA has to have more respect IMHO.

[Amber]

The transitional provisions state:

A person who was granted entry clearance or leave to remain previously under
Part 8 and has been living outside of the UK, during which time their leave under
Part 8 has expired, cannot benefit from the transitional provisions. Transitional
provisions are to allow a person already granted leave and living in the UK to
continue their route to settlement. If a person is not in the UK and they do not
have an outstanding application that was submitted before 9 July 2012, they
cannot apply under Part 8 of the Immigration Rules. They must apply under
Appendix FM.

[varghesejim]

Thank you, Amber. The new rules doesn't help. My point is the dependent was already eligible for settlement by the time main applicant gets it, by the time of her leaving the country. Her long stay and expiration of visa was because of unforeseen circumstances. This was absolutely fine as per the old rules as continuous residence or unbroken leave was not a requirement for dependents settlement.

In short, breaking the leave was in line with the rule.A person eligible and expecting settlement per the rules existing at a time was denied the right with a later citing a clause (expiry of leave) which was not there in the original rule.

I would think if this goes in front of a judge/appeal there is a very strong chance that ILR will be granted. But, how can I reach there?