Queries about ILR for 10- and 5-year route

Hi everyone I have some queries about indefinite leave to remain (ILR) in the UK.

I currently hold a Skilled Worker visa, while my wife holds a dependent visa since 2019. As a result, we are eligible to apply for indefinite leave to remain in 2024 via the 5-year route. Additionally, I first came to the UK in 2013 as a T4 student, which makes me eligible to apply for ILR this year via the 10-year route.

My question is whether I am eligible to apply for ILR this year through the 10-year route, while my wife could apply for ILR next year through the 5-year route as a skilled worker dependent. I conducted some research on this matter and found some information on the gov.uk website (https://www.gov.uk/indefinite-leave-to- ... -work-visa).

The gov.uk website states that "If your partner is already settled: You can apply for indefinite leave to remain as a dependant on your partner’s work visa even if they settled in a different way. For example because they had been in the UK for 10 years (‘long residence’). You must have had permission to be in the UK as a dependant on their work visa when they settled."

Based on the information I found on the gov.uk website, it appears that I can apply for ILR through the 10-year route first. Additionally, my wife's work dependent visa will still be valid even if I hold an ILR. This means that she could apply for ILR next year through the 5-year route as a skilled worker dependent. Could you please confirm if my understanding is correct?

Many thanks for your time and help

That is incorrect. Your wife can only get ILR under the skilled worker route if you as the main applicant also settle via that route. If you settle via the long residence, your wife cannot get ILR under the skilled worker route as a dependant. She has to switch her visa to the family route and start her 5 years from scratch under the route. I suggest applying under the skilled worker route or else your wife's ILR can be delayed by several years

See the changes to the guide in the posts below

zimba wrote: ↑

Sat Apr 15, 2023 4:08 pm

That is incorrect. Your wife can only get ILR under the skilled worker route if you as the main applicant also settle via that route. If you settle via the long residence, your wife cannot get ILR under the skilled worker route as a dependant. She has to switch her visa to the family route and start her 5 years from scratch under the route. I suggest applying under the skilled worker route or else your wife's ILR can be delayed by several years

Hi, thank you for your response. It appears that this might be a new policy. On the government website (https://www.gov.uk/indefinite-leave-to- ... -work-visa), it states that "You (my wife) can apply for indefinite leave to remain as a dependant on your partner's (me) work visa, even if they settled in a different way, for example, because they had been in the UK for 10 years (‘long residence’)." Therefore, I am a little bit confused. Thank you again.

The immigration rules currently do not reflect the same as the guidance. The immigration rules trump the guidance.

CR001 wrote: ↑

Sat Apr 15, 2023 7:26 pm

The immigration rules currently do not reflect the same as the guidance. The immigration rules trump the guidance.

Thank you for your response. Does this mean that I should not follow the guidance on the government website, as they may reject my wife's ILR application if we apply separately through different routes?

wsspzwps wrote: ↑

Sat Apr 15, 2023 7:38 pm

CR001 wrote: ↑

Sat Apr 15, 2023 7:26 pm

The immigration rules currently do not reflect the same as the guidance. The immigration rules trump the guidance.

Thank you for your response. Does this mean that I should not follow the guidance on the government website, as they may reject my wife's ILR application if we apply separately through different routes?

That's what CR001 response points to.

AmazonianX wrote: ↑

Sat Apr 15, 2023 9:21 pm

wsspzwps wrote: ↑

Sat Apr 15, 2023 7:38 pm

CR001 wrote: ↑

Sat Apr 15, 2023 7:26 pm

The immigration rules currently do not reflect the same as the guidance. The immigration rules trump the guidance.

Thank you for your response. Does this mean that I should not follow the guidance on the government website, as they may reject my wife's ILR application if we apply separately through different routes?

That's what CR001 response points to.

So sad ... ...

@CR001 @zimba, this may have changed, though I am not sure when. I would want to draw @vinny and @Obie into the conversation as there may have been a change in the Immigration Rules on this point.

Immigration Rules: Appendix Skilled Worker: Relationship requirement for settlement for a dependent partner or dependent child of a Skilled Worker wrote: SW 39.1. The applicant must be the partner or child of a person (P) where one of the following applies:
(a) P is, at the same time, being granted settlement as a Skilled Worker; or
(b) P is settled in the UK or has become a British citizen, providing P had permission as a Skilled Worker when they settled and the applicant either:
i) had permission as P’s partner or child at that time; or
ii) is applying as a child of P, and was born in the UK before P settled.
SW 39.2. The applicant must either:
(a) have last been granted permission as a dependent partner or dependent child of the person (P) in SW 39.1; or
(b) have been born in the UK and be applying as a child of the person (P) in SW 39.1.

The underlined section, in the Immigration Rules, can be interpreted as saying that the route to settlement for P (the main applicant) does not matter.

secret.simon wrote: ↑

Sun Apr 16, 2023 8:05 pm

@CR001 @zimba, this may have changed, though I am not sure when. I would want to draw @vinny and @Obie into the conversation as there may have been a change in the Immigration Rules on this point.

Immigration Rules: Appendix Skilled Worker: Relationship requirement for settlement for a dependent partner or dependent child of a Skilled Worker wrote: SW 39.1. The applicant must be the partner or child of a person (P) where one of the following applies:
(a) P is, at the same time, being granted settlement as a Skilled Worker; or
(b) P is settled in the UK or has become a British citizen, providing P had permission as a Skilled Worker when they settled and the applicant either:
i) had permission as P’s partner or child at that time; or
ii) is applying as a child of P, and was born in the UK before P settled.
SW 39.2. The applicant must either:
(a) have last been granted permission as a dependent partner or dependent child of the person (P) in SW 39.1; or
(b) have been born in the UK and be applying as a child of the person (P) in SW 39.1.

The underlined section, in the Immigration Rules, can be interpreted as saying that the route to settlement for P (the main applicant) does not matter.

Thanks a lot for your reply.

There used to be wording in the guidance specifically stating that dependents couldn’t extend if the primary applicant settled on LR. It used to say:

"If the lead applicant has settlement on the basis of long residence, including where they have subsequently naturalised as British citizens, their partner cannot extend their permission or gain settlement as a dependant under the routes this guidance relates to and must switch into the partner of a settled person category and apply for permission to stay. For more information see Appendix FM guidance."

The wording in the current guidence (https://assets.publishing.service.gov.u ... routes.pdf) is now the exact opposite:

"If the lead applicant has settlement on the basis of long residence (including where they have subsequently naturalised as British citizens) provided they held leave under the relevant PBS route at the time when they settled, their partner can extend their permission or gain settlement as a dependant under these routes. If the partner has switched into the partner of a settled person category they cannot apply for settlement unless they switch back to the relevant route. For more information relating to partner of settled person see Appendix FM guidance."

secret.simon wrote: ↑

Sun Apr 16, 2023 8:05 pm

@CR001 @zimba, this may have changed, though I am not sure when. I would want to draw @vinny and @Obie into the conversation as there may have been a change in the Immigration Rules on this point.

Immigration Rules: Appendix Skilled Worker: Relationship requirement for settlement for a dependent partner or dependent child of a Skilled Worker wrote: SW 39.1. The applicant must be the partner or child of a person (P) where one of the following applies:
(a) P is, at the same time, being granted settlement as a Skilled Worker; or
(b) P is settled in the UK or has become a British citizen, providing P had permission as a Skilled Worker when they settled and the applicant either:
i) had permission as P’s partner or child at that time; or
ii) is applying as a child of P, and was born in the UK before P settled.
SW 39.2. The applicant must either:
(a) have last been granted permission as a dependent partner or dependent child of the person (P) in SW 39.1; or
(b) have been born in the UK and be applying as a child of the person (P) in SW 39.1.

The underlined section, in the Immigration Rules, can be interpreted as saying that the route to settlement for P (the main applicant) does not matter.

SW 39.1.’s original wording:

Relationship requirement for settlement for a dependent partner or dependent child of a Skilled Worker

SW 39.1. The applicant must be the partner or child of a person (P) where one of the following applies:

• (a) P is, at the same time, being granted settlement on the Skilled Worker route; or
• (b) P is settled or has become a British citizen, providing P had permission on the Skilled
  Worker route when they settled and the applicant had permission as P’s partner or child at that time.

Apparently, SW39.1. (b) has always permitted Skilled worker’s dependant to apply for ILR under the Skilled worker route, providing P had permission on the Skilled Worker route when they settled and the applicant had permission as P’s partner or child at that time. Whereas, 319E(b) was/is more restricted.

If P was granted ILR under Long residence, then SW 29.1.(c) and SW 30.1.(c) seem to permit dependants to extend on this route.

However, I think

SW 36.1. A partner will be granted:

• (a) permission which ends on the same date as their partner’s permission as a Skilled Worker; or
• (b) 3 years’ permission if the Skilled Worker was (or is being) granted settlement as a Skilled Worker.

still prevents the partner extending as a Skilled worker partner, as there is no period of grant available for extending under this route.

Hence, if the partner is able to wait without extending nor switching until becoming eligible for ILR, then it seems that they may apply for ILR under this route.

I think the Guidance updated on 22 August 2022 still had the Long residence dependants restrictions. They changed this from 12 April 2023. So, it is apparently only a recent change of interpretation.

vinny wrote: ↑

Mon Apr 17, 2023 6:18 am

I think the Guidance updated on 22 August 2022 still had the Long residence dependants restrictions. They changed this from 12 April 2023. So, it is apparently only a recent change of interpretation.

Well, it is the first time I see this interpretation. Seems to be from a few days ago. I agree that the rules support this interpretation as Simon pointed out

Dear all, Thank you very much for your help and replies to my post. I greatly appreciate it Based on current discussion, does it mean that applying ILR separately in my case is worth trying?

hi all,

I am in a similar position planning to apply for ILR for my dependent wife. If anyone had luck applying under these new rules, please keep us posted (of course if any applied on priority route)... also, I am assuming this will be a Set (O) application.

thanks

wsspzwps wrote: ↑

Mon Apr 17, 2023 7:58 pm

does it mean that applying ILR separately in my case is worth trying?

Keep in mind that the new guidance is less than a week old at this stage and therefore you will be one of the first testing it out.

Whether that is a risk that you want to take is a decision for you.

Hi Simon,

Thanks... It was advised to me to write in the additional comments section about the new rules. Also, I believe when applying online, the first page of the form no longer specifies the restriction regarding the partner settled under long term route. It only specifies about the family route for which a different form to be used.

Thanks

gkjanarthanan wrote: ↑

Wed Apr 19, 2023 1:19 pm

Hi Simon,

Thanks... It was advised to me to write in the additional comments section about the new rules. Also, I believe when applying online, the first page of the form no longer specifies the restriction regarding the partner settled under long term route. It only specifies about the family route for which a different form to be used.

Thanks

The rules have not changed, the UKVI has made a new interpretation of the rules in place

UPDATES: Hello everyone, a few days ago, my friend shared a success story with me about a new immigration rule. His friend arrived in the UK back in 2012 as a T4 student, and subsequently switched to a T2/Skilled worker visa in 2018. Last year, he decided to settle in the UK through the 10-year route for personal reasons, while his family members were able to successfully settle via the 5-year route this year. If anyone else has a success story, please feel free to leave a message on this post.

Hi, that's great news. I started to fill in the Set(O) form for PBS dependant partner and when I went to section where it asks about the route of the partner, I can't see "Long Residence" in the drop down yet. Do we have to fill the last category in which he had the leave to remain i.e Skilled worker or T2 general ?

gkjanarthanan wrote: ↑

Sun Apr 30, 2023 7:21 pm

Hi, that's great news. I started to fill in the Set(O) form for PBS dependant partner and when I went to section where it asks about the route of the partner, I can't see "Long Residence" in the drop down yet. Do we have to fill the last category in which he had the leave to remain i.e Skilled worker or T2 general ?

Correct

All,

Applied for my wife’s ILR based on the new guidance and interpretation and received a successful decision.

Got a complex email initially and a follow on email that my wife is not eligible as I am no longer a skilled worker. I replied back pointing to the new guidance. After 3 weeks of waiting, received the approval decision today.

vinny wrote: ↑

Mon Apr 17, 2023 4:52 am

If P was granted ILR under Long residence, then SW 29.1.(c) and SW 30.1.(c) seem to permit dependants to extend on this route.

However, I think

SW 36.1. A partner will be granted:

• (a) permission which ends on the same date as their partner’s permission as a Skilled Worker; or
• (b) 3 years’ permission if the Skilled Worker was (or is being) granted settlement as a Skilled Worker.

still prevents the partner extending as a Skilled worker partner, as there is no period of grant available for extending under this route.

Hence, if the partner is able to wait without extending nor switching until becoming eligible for ILR, then it seems that they may apply for ILR under this route.

Maybe not ??
Successful extension case also reported under SW route, when lead applicant held ILR under the long residence: uk-skilled-worker-visas/sw-dependant-vi ... l#p2135938