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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Hello there, My friend came from India on Tier-2 (Minister

Resolved Question:

Hello there,

My friend came from India on Tier-2 (Minister of Religion) visa and is going to complete 5 years next month. However his wife of 10 years and children stayed in India and only joined him in UK in May 2012 as his dependents. My friend is going to apply for his Indefinite Leave next month. Can his wife (and children) too apply along with him and be granted Indefinite Leave? Whatever be your answer please back it up by citing relevant Immigration Rules / law.

Thank you.
R
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Thomas replied 1 year ago.
Hi,

Were his children born outside the UK please?

His wife has spent no time at all in the UK, apart from when she came here in May 2012. Correct?

Tom
Customer: replied 1 year ago.

She and their children have been living with him in India before he came to UK approx five years ago. She and their children have been living in UK from may 2012 with him.


 


If wife and children cannot be granted indefinite leave (why and which rukes?), what is their options?


 


Whatever be your answer kindly back it up by citing relevant Immigration Rules / law.


 


Thanks


R

Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

Neither the children or the wife would be eligible for ILR at the same time as the husband. In order to be eligible for ILR a person (regardless of whether they are married to a person holding ILR) must have a period of residence in the UK.

For a spouse of a UK national or person holding ILR this is now 5 years if they obtained a spouse visa after 9 July 2012:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/settlement/

If the person is in a work category that is eligible for settlement then they must also have a 5 year residence period, in the same way that the husband does. You will see from “Can your dependents apply for settlement” on the following link that this is confirmed:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier2/ministerofreligion/settlement/
You will note that for dependents to apply both THEY and the husband would have to meet the requirements in terms of residence.

So, they cannot apply now even if the husband does because they do not meet the residence requirements.

Once the husband has obtained ILR his immigration status will change from a Tier 2 visa holder to simply a person who holds ILR (a person who is “settled in the UK”) Here is the link for persons who are the partners of UK citizens or persons settled in the UK:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/

Therefore the wife must change her status because she would no longer be the dependent of a Tier 2 visa holder. Therefore, she must apply for Further Leave to Remain as the spouse of a

She and the children will have to apply once he has ILR using form FLR(M) as you will see from the following link:-
http://www.ukba.homeoffice.gov.uk/visas-immigration/partners-families/citizens-settled/spouse-cp/applying-in-uk/
.



I am very sorry that I could not have better news for you.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 1 year ago.

Hi Tom,




The link you have given for 'Can your dependants apply for settlement?' does not cite any immigration rules! Can you please cross relate it to the immigration rule number?



Can his wife apply after completing 2 years or 5 years as she had come here as his dependent in May 2012 and that she has to change her status from the dependent of the workpermit holder to the dependent of ILR holder?



Ta


R

Expert:  Thomas replied 1 year ago.
Sorry.

The requirements for ILR is you are a family member of a a points-based system migrant (ie. tier 2 minster of religion) are at immigration rule 319E:-
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part8/familymembersoftier1migrants/

You will see therefore at (d) that the period of residence is required (which she does not have)

Therefore she will have to apply for ILR once she has switched to being the spouse of a person holding ILR (ie. settled) under immigratoin rule 287:-
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part8/spouses_civil_partners/

However, because she will be effect be applying as the spouse of a person holding ILR after 9th July 2012 she will be eligible according to the appendix FM provisions and in respect of the 5 year period at "Section E-ILRP: Eligibility for indefinite leave to remain as a partner" on the following link:-
http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/app-family-members/family-life-as-a-partner/

Please rate my answer now.

Tom

Thomas, Solicitor
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