Spouse visa expires just before ILR eligibility

[tldr]

Hi, I would very much appreciate any advice regarding an ILR application for my partner and I.

Our visa history is as follows:

Me:
Entered the UK on a tier 5 (YMS) visa in Sep 2012
Re-entered the UK on a sponsored tier 2 (general) visa in Aug 2014 which expires Aug 31 2019
Planning to apply for ILR as soon as eligible (Jul / Aug 2019)

My partner:
Entered the UK on a tier 4 (student) visa in Sep 2012
Converted to a tier 2 (dependant) visa in Sep 2014 which expires Aug 31 2019
Planning to apply for ILR as soon as eligible (Aug / Sep 2019)

Unfortunately my partner's visa expires on the same date as mine, which makes sense as it's a dependant visa, however her visa was only granted in September 2014, meaning she will only have 4 years 11 months on her tier 2 visa before it expires.

The following seemed to indicate that my partner could apply for ILR as a dependant if my ILR is successful in Jul / Aug 2019: https://www.gov.uk/settle-in-the-uk/y/y ... ier-5-visa

In particular, the page says this is allowed if we have been living in the UK together for more than 5 years, which we already have been, however I'm fairly sure this contradicts other requirements I've seen for ILR which state a minimum of 5 years on a relevant visa (e.g. tier 2).

My questions are, is it inevitable that we will need to extend her current tier 2 (dependant) visa for one month via an FLR(M) application before she can apply for ILR in Aug / Sep 2019? Or can she apply directly after me via a SET(O) application with only 4 years 11 months on the tier 2 (dependant) visa, given I will hopefully be 'settled' in Jul / Aug 2019 and we have been living together in the UK for more than 5 years already?

[CR001]

What date exactly was the visa issued in September 2014 and what is the exact expiry date???

[tldr]

The visa was issued on 18 Sep 2014 and expires on 31 Aug 2019.

[CR001]

The visa was issued on 18 Sep 2014 and expires on 31 Aug 2019.

So what is the issue then??

Spouse can apply for ILR within 28 days before the 5th anniversary of the visa issue date, so sometime in the last couple of weeks of August.

[tldr]

As I understand it, my partner can apply for ILR around 21 Aug. Would you mind advising:

1. What happens if ILR is not granted prior to 31 Aug when her visa expires?
2. When will the ILR be valid from? If it’s only valid from 5 years after her tier 2 started (18 Sep 2019) then what happens between 1 Sep - 17 Sep regarding her visa, in particular her working status given she works full time?

[CR001]

1. If she submits an application before her visa expires and has not received a decision by the date of expiry, Section 3C of the immigration rules kicks in which means her existing visa conditions continue until HO has made a decision.

2. It is valid from the date of decision. it is NOT tagged onto the expiry date of her spouse visa. No change to her rights, see #1 above.

[tldr]

Thank you, that is really helpful!

[tldr]

The time to start applying has finally arrived! Very exciting but stressful as well.

Since starting this thread, I have realised my partner can apply on the same ILR application as me, as we've been living together in the UK for more than 5 years; albeit we had tier 5 / tier 4 visas previously.

I had a couple of queries / statements - would someone mind advising.

1. The SET(O) application form for my partner says: When did you first enter the UK? (Required)
This is the date you entered the UK when the period of stay you are basing this application on started.

This is confusing as my partner never had to re-enter the UK to switch from a tier 4 student to tier 2 dependent visa. Relevant dates are:

Partner entered the UK on a tier 4 student visa on 11 Sep 2012
I was granted a tier 2 general visa on 5 Aug 2014 - I had to leave and apply from abroad
I re-entered the UK with the tier 2 general visa on 16 Aug 2014
My partner was granted her tier 2 dependent visa on 18 Sep 2014 - she could apply from within the UK

Which date should I put? Should I also clarify this in a cover letter?

2. For the same question as above (when did you first enter the UK?), for myself I have put 16 Aug 2014 as this is the date I entered the UK on the tier 2 visa
3. My visa is valid from 5 Aug 2014 but entry date is 16 Aug 2014, can we apply from 8 July 2019 onwards?

Many thanks!

[aman90]

1. The SET(O) application form for my partner says: When did you first enter the UK? (Required)
This is the date you entered the UK when the period of stay you are basing this application on started.

Grant date will suffice for partner. It’s not a question that if answered incorrectly would impact the decision.


2. For the same question as above (when did you first enter the UK?), for myself I have put 16 Aug 2014 as this is the date I entered the UK on the tier 2 visa

that’s Ok

3. My visa is valid from 5 Aug 2014 but entry date is 16 Aug 2014, can we apply from 8 July 2019 onwards?

08/07
I’m not sure abt ur partner though as she was granted visa in September

[tldr]

08/07
I’m not sure abt ur partner though as she was granted visa in September

Hmm I think you raise a good point. I’m now unclear whether my partner can apply on the same form as me if I apply before her 5 year period on a PBS dependant visa.

The ‘Find out if you can apply to settle in the UK’ wizard on the gov site certainly says it is fine, as we have lived together for more than 5 years in the UK: https://www.gov.uk/settle-in-the-uk/y/y ... ier-5-visa

However page 29 of the following appears to contradict that: https://assets.publishing.service.gov.u ... 6.0ext.pdf

5-year probationary period
Dependent partners of PBS migrants or Innovators must complete a 5-year probationary period before they qualify for ILR. If the PBS migrant obtains ILR or British citizenship before their partner has completed their 5 year probationary period, the partner can still apply for further leave to remain as a PBS dependant or Innovators rather than as the partner of a settled person. If their application meets the requirements, leave to remain can be granted for up to 3 years.
If the PBS migrant or Innovator has ILR on the basis of long residence, their partner cannot extend their leave or gain settlement as a PBS or Innovator dependant and must switch into the partner of a settled person category and apply for limited leave. For more information see Appendix FM guidance.
Combining leave for ILR
Leave granted as a dependant in another category of the Immigration Rules can be combined with leave granted as a PBS or Innovator dependant to count towards the probationary period for ILR.
The applicant must have been granted as the spouse, civil partner, unmarried or same-sex partner of the same main applicant (that is, the PBS migrant or Innovator).
The most recent leave must be as the partner of that skilled worker. Leave granted for any other reason cannot be combined.

So it seems that there is still a 5 year requirement for my partner as her tier 4 visa was not a dependent of mine, is that correct?

[CR001]

Your partner cannot apply for ILR any sooner than within 28 days before 18th September 2019. So anytime from 21st August and before visa expiry.

Tier 4 does NOT count towards ILR based on 5 years residence.

Applying any earlier and it will likely be refused for not meeting the 5 years in a RELEVANT VISA CATEGORY requirement.

There have been a number of ILR refusals in recent months due to people applying too early. If you are refused, your partner will be put on a new 5 or 10 year route on FLR(FP).

[tldr]

Thanks CR001. The wizard on the gov site certainly does give some misleading advice!

Would you recommend I apply separately for ILR and the my partner applies one month later (via SET(M)?), or should we both wait until one month later and apply together on SET(O)?

The new 5 / 10 year route for her definitely sounds like something to try and avoid.

[CR001]

Thanks CR001. The wizard on the gov site certainly does give some misleading advice!

It is very general to cover a large range of circumstances. You should however always follow the guidance notes and immigration rules.

Would you recommend I apply separately for ILR and the my partner applies one month later (via SET(M)?),

Your choice. PLEASE NOTE that your partner CANNOT apply for ILR on Set(M). It MUST be and can only be Set(O).

or should we both wait until one month later and apply together on SET(O)?

Your choice.

[tldr]

Thanks again, I will plan to do two separate applications then.

[tldr]

Hopefully a silly question, but just thought I'd clarify if I may.

If I am granted ILR on my own sometime between 8 Aug - 18 Sep, will my partner's existing tier 2 dependent visa remain valid and continue to build up her 5 year probationary period?

There have been a number of ILR refusals in recent months due to people applying too early. If you are refused, your partner will be put on a new 5 or 10 year route on FLR(FP).

Do you mean if my separate ILR application is refused, or a combined application with my partner is refused because she doesn't meet the 5 year requirement? If I have a separate ILR application refused between 8 Aug - 18 Sep, is there any detrimental effect on my partner?

[aman90]

Hopefully a silly question, but just thought I'd clarify if I may.

If I am granted ILR on my own sometime between 8 Aug - 18 Sep, will my partner's existing tier 2 dependent visa remain valid and continue to build up her 5 year probationary period?

Yes

There have been a number of ILR refusals in recent months due to people applying too early. If you are refused, your partner will be put on a new 5 or 10 year route on FLR(FP).

Do you mean if my separate ILR application is refused, or a combined application with my partner is refused because she doesn't meet the 5 year requirement?

You won’t be refused but It’s a possibility that she will be if she hasn’t reached her qualifying period by the time the decision is made.


If I have a separate ILR application refused between 8 Aug - 18 Sep, is there any detrimental effect on my partner?

Yes. She’ll be refused.