ILR through Tier-1(General) dependent after April 2018

[kvig]

Dear Vinny,

I am in a similar situation where as my wife and child were issued visa as dependent of Tier 1 (General)applicant on 12 Dec, 2012. Their date of entry was 4 Apr, 2013.

According to the new guidance, clarity on the continuous break clause has been deleted.

Do I have to apply for an extension first in Dec'17 under Tier 1 G dependent category and then again apply for ILR in April 2018 ?

Any help would be greatly appreciated.

[CR001]

Yes an extension before their current visas expire in December. It will be a 3 year extension and visa fee plus £600 IHS each must be paid.

For PBS dependents, their 5 year qualifying period starts from date of entry to the UK. They can apply for ILR within 28 days before 4th April 2018.

[kvig]

Thank you so much for your response.

In continuation to my earlier query I received the below response from UKVI Contact Centre:

Thank you for your enquiry dated 10th August regarding the qualifying start date for ILR.

The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the relevant 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.

If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation.

Please refer to the following link for further guidance.

https://www.gov.uk/government/publicati ... riod-in-uk

Please refer to page 14 onwards.


Your thoughts on above ? Would you still advise to go for an extension first and then ILR?

[CR001]

It all depends how you asked your question.

What the response is referring to is the MAIN PBS visa holder ONLY. The absence limits and concessions do NOT apply to PBS Dependents.

On page 4 of the link, is there ANY mention of PBS Dependents??? No there is not.

The immigration rules clearly state that PBS Dependents require 5 years residence.

Your choice what you choose to do. If you apply for ILR too early, you face a likely refusal and lost of the fee and potentially not having a visa when you get the decision. There is no appeal rights for PBS to ILR routes.

[kvig]

Yes, I agree with that the guidance on Page 4 does not cover PBS Dependant. This is where it gets confusing.

There were changes to the Immigration Rules that came into effect on 6 April 2017 (see the Statement of Changes to the Immigration Rules dated 16 March 2017 in relation to the deletion of text at the end of paragraph 319E(d)(ii) ), the definition of “continuous residence” for a PBS Dependant was removed.

The pre-6 April 2017 rules would have matched the advice given by UKVI after the removal of the explanatory note from the Rules, it leaves a gap in understanding.

I did ask for further clarity on their response but did not receive any.

Am hoping if someone on this board has faced had a similar situation and knows the correct course of action.

[CR001]

The pre-6 April 2017 rules would have matched the advice given by UKVI after the removal of the explanatory note from the Rules, it leaves a gap in understanding.

You are wrong. HO introduced the absence limits for PBS Dependents in terms of a break in continuous residence late last year or very early this year and then removed it and changed it back to what it originally was (i.e. no absence limit), re quote below.

There were changes to the Immigration Rules that came into effect on 6 April 2017 (see the Statement of Changes to the Immigration Rules dated 16 March 2017 in relation to the deletion of text at the end of paragraph 319E(d)(ii) ), the definition of “continuous residence” for a PBS Dependant was removed.

This change was to remove the introduction of the 180 days absence limits for PBS dependents breaking continuous residence.

None of these absence limit changes however changed the fact that PBS Dependents residence starts counting from date of entry to the UK. That has remained UNCHANGED throughout.

[kvig]

Thank you so much.

None of these absence limit changes however changed the fact that PBS Dependents residence starts counting from date of entry to the UK. That has remained UNCHANGED throughout.

Can you point me to the exact guidance in the rules please where it states that counting starts from date of entry to UK?

[CR001]

319E(d)(ii). It does not state 'date of entry' but does state 'residence' and 'continuous'.

319E. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:
(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.

(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.

(c) The applicant must have, or have last been granted, leave as the partner of the Relevant Points Based System Migrant who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.

(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):

(i) If the applicant was granted leave as:
(a) the Partner of that Relevant Points Based System Migrant, or
(b) 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 under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years

(ii) If (i) does not apply, the specified period is a continuous period of 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