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Howard
Howard, Immigration Lawyer
Category: UK Immigration Law
Satisfied Customers: 459
Experience:  Senior Partner with nearly 20 years experience in UK Immigration Law.
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My spouse and I have been living together in a relationship

Resolved Question:

My spouse and I have been living together in a relationship like marriage for the past 5 years and were married approximately 2 years ago. Currently, we each have our own visas but he is eligible for ILR next summer. My understanding, according to rule 319 E, is that so long as you can prove that myself and my husband have been living together for 5 years from the point you qualify for ILR and I currently hold a Tier 2 dependant visa then I can still qualify for ILR at the same time as my husband. Does this mean that if I switch to a become his dependent visa now, I will be able to apply for ILR? Or would I have needed to be a dependent on his visa this entire time?

Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Howard replied 1 year ago.
You would need to have already been his dependant for the qualifying period. Switching now would start the qualifying period and once he got ILR you would extend as a PBS dependant.
Customer: replied 1 year ago.

I am referring to this clause in rule 319E of the immigration rules, which seems to state that I can in fact apply for ILR if I join him as a dependent now (http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part8/familymembersoftier1migrants/) :


 


 


(ii) If (i) does not apply, the specified period is 5 years, during which the applicant must:


(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.

Expert:  Howard replied 1 year ago.
I know the rules you are referring to and, again, you cannot switch to a dependant visa now and then apply for ILR with your husband next year - this is not allowed by the rules.

The old rules were that you must hold dependant visa status for 2 years and this was changed to 5 years from 9 July 2012.

C is the important part of what you have quoted - you need to have had leave to remain as the partner - not simply been his partner but had valid leave to remain as the partner.

The rules are easy to misread but the information I have provided is absolutely correct - I deal with this question on a very regular basis.
Customer: replied 1 year ago.

Thanks. Your response is very helpful but I still have one question. If what yo state above is the case, then why does (b) state : have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant.


 


This leads me to infer that I don't need to be his dependent for the entire 5 year period.

Expert:  Howard replied 1 year ago.
You need to read the statement more carefully as the wording is important and the information that I have provided is absolutely beyond doubt - it is something that has been regularly asked over the last year since the changes were made.

It firstly states Partner with a capital P - this means Partner of a Points Based visa holder, meaning officially holding that visa status. Further, it does not state that you can have had any other visa status you want prior to this - you would still need to have been holding a valid Partner status. This wording is to allow for someone perhaps having been dependant on a work permit holder prior to them switching into the Points Based System - the partner would still need to have had leave to remain as a Partner and this relates to C. Part B cannot be read in isolation.
Howard, Immigration Lawyer
Satisfied Customers: 459
Experience: Senior Partner with nearly 20 years experience in UK Immigration Law.
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