Tier 2 General to ILR - Dependants' Eligibility

[rdalibor]

Hi,

I am planning to apply for ILR this month as I will have 5 years residence period completed on Tier 2 General visa. However, I am not sure if my wife and my two children will be eligible to apply for ILR at the same time with me. Please see the description of our situation below:

- On 21st June 2012. their application for initial Tier 2 dependant visa (entry clearance) was submitted online and the application fee was paid. At that time appointment at visa application centre was booked for 9th July 2012.
- They attended their appointment on 9th July 2012.
- They got their Tier 2 dependant visas granted from 25th July 2012.

On the government website I checked eligibility for dependants and there it is stated:
- they’ve been living in the UK with you for at least 2 years if they applied before 9 July 2012 or 5 years if they applied on or after 9 July 2012

My understanding is that they can rely on 2 years requirements as their application was made before 9th July 2012. I found a definition in the Tier 2 Policy Guidance document that the date of the application is the date when the fee was paid.
Could you please advise on this.

Many thanks,
Dalibor

[CR001]

Provided your dependents have not applied for a new entry clearance visa from outside the UK with a previous expired visa, then yes, your dependents fall under the 2 year route for ILR.

[rdalibor]

Hi,

Thank you very much for your answer. I am totally stressed about this matter. In the meantime I had a call with Immigration adviser recommended by Citizen Advice Bureau and that lady insisted that my dependants need to complete 5 years period before they can apply for ILR.
Then I dig out the document from Home Office website related to Transitional Provisions where they stated following:
4.4.3. If an applicant was granted an initial period of leave to enter or remain as a PBS
dependant on or after 9 July 2012 but had not lived together in the UK with their
partner who is a relevant PBS migrant for at least the required 5 years at the date their partner applied for indefinite leave to remain, then, provided their partner was
granted indefinite leave to remain as a relevant PBS migrant, the applicant can
apply for further leave to remain under paragraph 319C(b)(iii)(1) or (2).

As I am already running out of time I booked an appointment at a premium centre for 23rd May 2017 and I am expecting my ILR (without dependants) to be granted same day. Then I understood my dependants should be able to apply for that further leave to remain which will enable them to complete 5 years period to ILR.
Could you please advise me which form shall my dependants now use to extended their leave to remain.

Many thanks,
Dalibor

[vinny]

I believe CR001 is correct.

However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012.

If she applied for entry clearance in June 2012, then they granted her leave in accordance with the rules in force on 8 July 2012. Therefore, if she since has continuous leave, then she is subject to the 2-year residence requirements under 319E(d)(i).

You may include her in your SET(O) application.

[rdalibor]

Hi all,

Thank you very much for your answers. The problem is that the document I reffered to is newer and is from August 2015:
https://www.gov.uk/government/uploads/s ... _final.pdf

In this document they strictly refer to date when the application is granted. The problem is that I have to pay 9188 pounds application fee for myself and my 3 dependants and to be unsure what will they decide.
So, I have decided to try to get ILR for myself on 23rd May 2017 when is my appointment and ask for Tier 2 PBS dependant extension for my dependentants for the period long enough for them to complete 5 years residence which should definitely be 05 October 2017 since they joined me in the UK on 05 October 2012 in the UK for the first time.
On this forum I found the link to the online application on the goverment website for the dependants to extend their Tier 2 PBS Dependant Visa in case if main Tier 2 migrant got ILR from Tier 2 General 5 years route. We went through this application and there they are requesting information related to Certificate of Sponsorship.
Could you please answer me the following question:
Will I need to ask for a new Certificate of Sponsorhip from Company which will be used for this extension?
Our current residence permit is valid until 11th June 2017 for all of us which means that the certificate of sponsorship which was used for current residence permits will expire also.

Many thanks,
Dalibor

[CR001]

That document is not relevant for PBS dependents. It is for a spouse on a spouse settlement visa.

[vinny]

Application prior to 9 July 2012 with a decision made in the period from 9 July 2012 to 5 September 2012
In non-criminal cases that made a Rules-based application prior to 9 July 2012, with a decision made in the period from 9 July 2012 to 5 September 2012, the transitional provisions allowing specified applicants to continue to rely on the pre-9 July 2012 Rules apply...
...
2.1. Establishing the date of application
The date of an application is determined by paragraphs 30 and 34G of the Immigration Rules,
which can be summarised as follows:
...
(iv) the date the application was submitted and the correct fee paid if the application is for entry clearance made outside the UK....
....
3.1. Applicants granted or who applied for leave under the Rules before 9 July 2012
3.1.1. A person who meets the following criteria will remain subject to the Immigration Rules in force as at 8 July 2012 until settlement (the grant of indefinite leave to remain) even where the application is granted on or after 9 July 2012:
 a person who made an application before 9 July 2012 under Part 8 of the Immigration Rules which was not decided by 9 July 2012; and
 a person who is in the UK and had been granted entry clearance or limited leave to remain under Part 8 following an application for initial entry clearance or leave to remain under Part 8 submitted before 9 July 2012, and this leave is extant where this is a requirement of Part 8, and they apply for further leave on the same basis.

The date of the entry clearance application is subject to paragraph 30. Hence, they granted your wife's leave in accordance with the rules in force on 8 July 2012.

4.3.4. An applicant who had leave to enter or remain in the UK as a dependent partner before 9 July 2012, and who has had continuous leave in this category from 9 July 2012 up to the date of their application for indefinite leave to remain, is required to have lived together in the UK with their partner in a marriage or civil partnership, or in a relationship similar to marriage or a civil partnership, for a period of at least 2 years: under paragraph 319E(b)(ii), (c)(ii) and (d)(i). This applies if their partner was a PBS migrant or in another immigration category on 9 July.

4.3.5. Provided they meet this requirement, together with the remaining requirements of paragraph 319E, the applicant will be eligible to apply for settlement at the same time as their partner who is a relevant PBS migrant.

Whilst the guidance may be confusing, the Statement of changes to the Immigration Rules and 319E(d)(i) are quite clear and take precedence over the guidance.

If you are still unconvinced, then email them:

14. Contact for Further Information
This guidance is owned by the Family Policy Team.
Any queries should be directed to FamilyOpsPolicy@homeoffice.gsi.gov.uk

[rdalibor]

Hi vinny,

Thank you very much for your detailed analysis of this document. I am having headaches every time reading it.
From the section 3.1.1, you quoted, it looks like it should be clear but then I am not sure if that is applicable for categories listed in 3.1.3 only ?
Then in sections 4.3 and 4.4 they are dealing with PBS dependants, which is my case. You quoted sub-sections 4.3.4 and 4.3.5 but the headline of section 4.3 directly refers to the grant day:
"Applicants granted leave to enter or remain as a PBS dependant before 9 July 2012"
Then in 319E(d)(i) they say:
"(i) If the applicant was granted leave as ...
... under the Rules in place before 9 July 2012"
How should I know which rules they used ?
It looks like a completely mess to me. I really appreciate your time you spent on this and don't expect you to elaborate on this further. Thank you also for pointing me to 14. Contact for further information.

I would be thankful if you could just let me know if going for ILR just for myself at this point and for Tier 2 PBS Dependants extension (for the period enough to cover 5 years residence and considering that under Tier 2 6 years is maximum) wouldn't be invalid way?

Many thanks,
Dalibor

[vinny]

The Tier 2 (General)'s 6 years maximum doesn't apply to dependants.

Has your wife satisfy KoLL?

If she extends, rather than applies for ILR, when/after you sucessfully apply for ILR, then they should grant her leave for 3 years under 319D(a). So, they will also expect her to pay for 3 years' Immigration Health Surcharge.

[rdalibor]

Hi vinny,

Thank you for your reply. I wasn't aware that Tier 2 (General)'s 6 years maximum doesn't apply to dependants. Could you please point me where is that explained.
I understood that duration of my initial visa was determined based on the end date on the initial certificate of spnsorship and I got initial Tier 2 visa granted from 16th May 2012 to 28th May 2015.
My wife and children got their Tier 2 General dependant visas granted on 25th July 2012 and the end of their visas was aligned with the end of my visa.
Then in April 2015 we applied for visa extension where company hired agency and we got our visas extended to 11th June 2017. I understood that for this extension company had to issue new certificate of sponsorship and this extension end date was based on that new CoS.
Now at this point if I go for ILR and my family for Tier 2 PBS dependant extension I understood that company should issue new Cos with duration of up to 1 year or just long enough to make sure that my family completes 5 years on Tier 2 PBS dependant visa. Could you please let me know if that is the case?
Or, if I understood you correctly, they will get extension of 3 years under 319D(a) and I don't actually need new CoS from Company? I am confused here as on that online application for PBS dependant extension they are requesting information from CoS and I am not sure if that should be the CoS that will expire soon or the new one should be issued?

Yes, my wife satisfies KoLL. She took her IELTS exam earlier this year and we both passed Life in the UK test as we were both preparing to go for ILR together.

I am aware that if she extends rather than apply for ILR it will cost more at the end.
The problem is that I am not able to afford premium service for all 4 of us at this moment.
At this point I have two options (at least I hope I have):
1) to proceed with my premium ILR and once I hopefully get it to apply for their extension
2) to cancel my premium ILR and apply for standard ILR for all 4 of us

With option 1) I should be on the safe side I guess and I want to make sure that this option is valid.
With option 2) I feel totally unsafe.

I hope you understand me. Thank you once again for replying to my posts.

Many thanks,
Dalibor

[vinny]

After they grant the main PBS migrant ILR under PBS, they may grant 3-year extensions for the partner as many times as wanted under 319C and 319D.

Do you have any UK born children? A UK born child will be entitled to Register as a British citizen directly after a parent is settled.

[rdalibor]

Hi vinny,

Thanks for information but I don't have any UK born children.
I completely agree with your statement from previous post that paragraphs from Immigration rules are the reference for making decisions. It looks like this guidance is made just to make confusion.

Now, I m completely focused on the paragraph 319E(d)(i):
"(i) If the applicant was granted leave as ...
... under the Rules in place before 9 July 2012"

My dependants visa was made by company who is our sponsor and they used agency as a legal representative for this application.
We cannot remember that we received any letter when the passports with granted visas were sent back to my wife but I would expect that agency and company should have this piece of information in their records.
I am checking this with them at the moment.
I would expect that there must some kind of decision letter in which is stated under which rules your visa was granted.
Do you think that they should have complied with Statement HC194:
https://www.gov.uk/government/publicati ... -june-2012
"However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012." ?

Our current residence permits are valid until 11th June 2017. So I will keep my premium ILR appointment for 23rd May and then before 11th June 2017 make ILR application for my dependants. I understand that is possible according to paragraph 319E(b)(i)? In that case will they apply using SET(O) form also?

Many thanks,
Dalibor

[vinny]

Yes.

[rdalibor]

Hi vinny,

Thank you very much once again.

Dalibor

[rdalibor]

Hi vinny,

If you could please help me in understanding following:

As I will go with ILR premium application for myself first, I don't see anywhere in the SET(O) form where I can put details for my family as they will not be applying at the same time. Shall I provide that information in the cover letter?

Similarly, when my wife will be applying for ILR as a main applicant and with the kids as dependants afer I hopefully get ILR, can she provide information about me in the cover letter?
Also according to the list of documents I understood she will need to provide passports, biometric cards, photographs and her Life in the UK test and IELST test. I don't see where they explicitly ask for documents proving that we have been living together in the UK like council tax, tenancy agreements, etc. I expect we need to provide that also.

Many thanks,
Dalibor

[CR001]

As I will go with ILR premium application for myself first, I don't see anywhere in the SET(O) form where I can put details for my family as they will not be applying at the same time. Shall I provide that information in the cover letter?

If they are not applying you do not put them in the form.

Similarly, when my wife will be applying for ILR as a main applicant and with the kids as dependants afer I hopefully get ILR, can she provide information about me in the cover letter?

Not necessary, HO will have everyone's details on the system.

[rdalibor]

Thank you very much for your answer.

So, I have my appointment booked for 23rd May and I am thinking of booking premium appointment for my wife and children before I attend my appointment. I understood that should be ok. Could you please confirm?

I understood also that at your appointment you have a chance to explain things if they ask for something to be clarified. So we plan to print statement of changes document
https://www.gov.uk/government/publicati ... -june-2012
and explain them why my family can rely on the rules before 9th July if they ask for this.

I also found out that your appointment day at the premium centre should be before current via expires. Could you please confirm this? So, my concern is if I wait for 23rd May to book their appointment that there will be no available appointments before 11th June when the visa expires.

Many thanks,
Dalibor

[CR001]

Thank you very much for your answer.

So, I have my appointment booked for 23rd May and I am thinking of booking premium appointment for my wife and children before I attend my appointment. I understood that should be ok. Could you please confirm? Not sure if you mean for their ILR before yours or just to book the appointment online for a date after your appointment

I understood also that at your appointment you have a chance to explain things if they ask for something to be clarified. So we plan to print statement of changes document
https://www.gov.uk/government/publicati ... -june-2012
and explain them why my family can rely on the rules before 9th July if they ask for this. It is not an interview. HO know the rules.

I also found out that your appointment day at the premium centre should be before current via expires. Could you please confirm this? So, my concern is if I wait for 23rd May to book their appointment that there will be no available appointments before 11th June when the visa expires. Yes, you must have a valid visa to apply for ILR.

Many thanks,
Dalibor

[rdalibor]

So, I have my appointment booked for 23rd May and I am thinking of booking premium appointment for my wife and children before I attend my appointment. I understood that should be ok. Could you please confirm? Not sure if you mean for their ILR before yours or just to book the appointment online for a date after your appointment

I meant just to book online for a date after my appointment. We won't be on the same form but we will all enter the process before 11th June.

Thanks,
Dalibor

[CR001]

Yes, it should be fine.

[rdalibor]

Hi all,

I had my ILR appointment today and everything went fine. I got my ILR approved.
In the meantime, we booked an ILR appointment for my wife and two children as my PBS dependants for 7th June.
So, on a SET(O) form, in PBS dependant category, my wife will be main applicant and our two children as dependants. In this case under Section 12 - Documents there is no separate section for PBS dependant category.

My understanding that following documents will be required in support of my wife and children application:
- passports
- biometric residence permits
- life in the uk test (for my wife)
- english language test (for my wife)
- marriage certificate
- documents for the proof of cohabitation

My wife doesn't work so I am not sure If I will have to provide my bank statements and payslips for their application also?

Could you please help me with this. I searched through the forum but couldn't find this list of documents.
The category is Tier 2 General.

Many thanks,
Dalibor