What to do if the main Points-Based System (PBS) migrant qualifies for Indefinite Leave but the spouse/partner doesn’t?

By 1st 4Immigration - #1 UK Immigration Experts -
We are often asked about such situations, the main question being whether the spouse has to switch to a Spouse visa of a settled person (Spouse of an ILR holder, also some call it ‘ILR Dependant’ which is not the right name, basically an FLR M application).

For example, if the main Tier 2 General migrant has almost spent 5 years in the UK and is soon planning to apply for ILR. The spouse, however, only arrived 1 year ago (or they only got married a year ago).

If the main Tier 2 migrant is applying for ILR on the basis of spending 5 years on the Tier 2 General visa (but not 10 years Long Residence) then the spouse needs to have spent either 2 years in the UK (if his/her PBS Dependant visa was issued under the Rules in place before 9 July 2012) or 5 years in the UK (if the Dependant visa was issued under the Rules in place on or after 9 July 2012).

So, the main Tier 2 migrant can go ahead and apply for Indefinite Leave to Remain (ILR). The spouse, however, won’t be included in this ILR application. Instead the spouse would have to make a PBS Dependant application again, and possible again, every time for 3 years until he/she has reached the required number of years in the UK.

Even though the main Tier 2 migrant has already secured ILR, or has even become a British Citizen, the spouse can continue to apply as a ‘Tier Dependant’, ie as a PBS Dependant (even though there is no more main Tier migrant to ‘depend’ on).

The only exception to this is when the main Tier migrant is applying for ILR on the basis other than spending the 5 years on the eligible ‘Tier’ visas. So, if the main Tier  migrant is applying for ILR on the basis of 10 years Long Residence then the spouse would have no choice but to switch to a Spouse visa, ie to make an application as a spouse of a person settled in the UK. In this case the spouse would start the 5 years again, this time as a spouse of a settled person, the 5 years can’t be combined with the PBS Dependant visas (but may be able to apply based on his/her own 10 years in the UK, if it is sooner).

For an individual advice or to make an application please contact us: info@1st4immigration.com or visit www.1st4immigration.com 

If you are an Immigration Adviser or a Solicitor please visit our immigration Training and CPD website: www.1st4immigration.com/training

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