AR decision correct or wrong! Solicitor says Wrong. JR is worth?

[Tier2_to_ILR]

Me and Mrs applied for ILR together at Premium appointment centre
My application was granted and Mrs application was refused that she little early for ILR. As she not completed 5 years as Tier 2 Dependent

My solicitor adviced me to apply for her as she's living in UK as PBS migrant from PSW so she has completed 5 years

Letter says

You applied for indefinite leave to remain as a Dependent Partner of a PBS migrant on xx June 2018. Im writing to tell you that your application is refused
Your application is therefore have not completed a continuous period of 5 years as stated in paragraph 319E of the immigration rules as the requirement of paragraph 319E(d) (ii)

(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),
(c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and
(d) not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:
(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.

I have feeling my OISC solicitor misguided me. I had now wasted almost 3000 pounds

Please advice me Whether I can go to administrative review or should can i claim some money from my solicitor

[CR001]

Useful to state what your wife's full UK immigration history/visas and dates are??

[CR001]

????

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[secret.simon]

Can you give us your wife's timelines (when did she arrive in the UK, on what visa, when did she switch, etc)?

My solicitor adviced me to apply for her as she's living in UK as PBS migrant from PSW so she has completed 5 years

Under what category did she apply for ILR? A PBS migrant dependent is a separate category from PBS migrant itself. To the best of my knowledge, the time spent under PSW could possibly be combined with time spent as a PBS migrant, but not as a PBS migrant dependent.

Even then, there are exceptions. For instance, time as a PSW cannot be used towards ILR as a Tier 2 General migrant, for example.

(b) The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 2 (General) Migrant or Tier 2 (Sportsperson) Migrant, in any combination of the following categories:
(i) as a Tier 1 Migrant, other than a Tier 1 (Post Study Work) Migrant or a Tier 1 (Graduate Entrepreneur) Migrant,

EDIT: Beaten by CR001's posts.

[Tier2_to_ILR]

Useful to state what your wife's full UK immigration history/visas and dates are??

Ofcourse matey

she entered UK as

Tier 1 PSW PBS dependent in Oct 2011 from until May 2013
Switched to Tier 2 Dependent on Aug 2013, she will completing 5 yrs in Aug 2013

In UK 6 years, 8 months in PSW Dependent & Tier 2 Dependent
In UK 4 years, 10 months in Tier 2 Dependent

My solicitor told PSW dependent also PBS migrant so you can apply, but 319E has an extra word relevant PBS dependent

My solicitor is OISC registered and lost 3000 pounds. I have his letter wrote to UKBA mentioning about my wife PBS scenario. Case worker told we saw your solicitor letter and said we will not consider PSW dependent period

Please help me any chance to go administrative review or possibility to claim damage from my solicitor

Many Thanks

[Tier2_to_ILR]

Can you give us your wife's timelines (when did she arrive in the UK, on what visa, when did she switch, etc)?

My solicitor adviced me to apply for her as she's living in UK as PBS migrant from PSW so she has completed 5 years

Under what category did she apply for ILR? A PBS migrant dependent is a separate category from PBS migrant itself. To the best of my knowledge, the time spent under PSW could possibly be combined with time spent as a PBS migrant, but not as a PBS migrant dependent.

Even then, there are exceptions. For instance, time as a PSW cannot be used towards ILR as a Tier 2 General migrant, for example.

(b) The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 2 (General) Migrant or Tier 2 (Sportsperson) Migrant, in any combination of the following categories:
(i) as a Tier 1 Migrant, other than a Tier 1 (Post Study Work) Migrant or a Tier 1 (Graduate Entrepreneur) Migrant,

EDIT: Beaten by CR001's posts.

Thanks , your reply is clear . My OISC registered solicitor misguided me and I have lost 3000 pounds

[secret.simon]

My OISC registered solicitor misguided me and I have lost 3000 pounds

While you won't get your money back, you could consider making a complaint to the OISC about the solicitor.

[Tier2_to_ILR]

My OISC registered solicitor misguided me and I have lost 3000 pounds

While you won't get your money back, you could consider making a complaint to the OISC about the solicitor.

I will ask him to refund at least his fee what i paid for him , at least it will cover 1/3 amount i lost. If he refuse i will complain

[vinny]

Tier 1 PSW PBS dependent in Oct 2011 from until May 2013
Switched to Tier 2 Dependent on Aug 2013, she will completing 5 yrs in Aug 2013

In UK 6 years, 8 months in PSW Dependent & Tier 2 Dependent
In UK 4 years, 10 months in Tier 2 Dependent

My solicitor told PSW dependent also PBS migrant so you can apply, but 319E has an extra word relevant PBS dependent

My solicitor is OISC registered and lost 3000 pounds. I have his letter wrote to UKBA mentioning about my wife PBS scenario. Case worker told we saw your solicitor letter and said we will not consider PSW dependent period

Please help me any chance to go administrative review or possibility to claim damage from my solicitor

Many Thanks

What happened between May 2013 and August 2013?

If your wife successfully applied in-time prior to May 2013 to switch from PSW dependant to Tier 2 dependant, then I think your solicitor was correct.

319E(d)(ii)

(c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and

is also satisfiable during the period that she had leave as your dependant under another category of these Rules.

The caseworker should have included her PSW dependent period.

[Tier2_to_ILR]

Tier 1 PSW PBS dependent in Oct 2011 from until May 2013
Switched to Tier 2 Dependent on Aug 2013, she will completing 5 yrs in Aug 2013

In UK 6 years, 8 months in PSW Dependent & Tier 2 Dependent
In UK 4 years, 10 months in Tier 2 Dependent

My solicitor told PSW dependent also PBS migrant so you can apply, but 319E has an extra word relevant PBS dependent

My solicitor is OISC registered and lost 3000 pounds. I have his letter wrote to UKBA mentioning about my wife PBS scenario. Case worker told we saw your solicitor letter and said we will not consider PSW dependent period

Please help me any chance to go administrative review or possibility to claim damage from my solicitor

Many Thanks

What happened between May 2013 and August 2013?

If your wife successfully applied in-time prior to May 2013 to switch from PSW dependant to Tier 2 dependant, then I think your solicitor was correct.

319E(d)(ii)

(c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and

is also satisfiable during the period that she had leave as your dependant under another category of these Rules.

The caseworker should have included her PSW dependent period.

What happened between May 2013 and August 2013?
She was in India, she had switched to Tier 2 Dependent Visa with in 6 months time
The solicitor told me that she has got her new visa with in 6 months time. so thats fine.

[marcnath]

Tier 1 PSW PBS dependent in Oct 2011 from until May 2013
Switched to Tier 2 Dependent on Aug 2013, she will completing 5 yrs in Aug 2013

In UK 6 years, 8 months in PSW Dependent & Tier 2 Dependent
In UK 4 years, 10 months in Tier 2 Dependent

My solicitor told PSW dependent also PBS migrant so you can apply, but 319E has an extra word relevant PBS dependent

My solicitor is OISC registered and lost 3000 pounds. I have his letter wrote to UKBA mentioning about my wife PBS scenario. Case worker told we saw your solicitor letter and said we will not consider PSW dependent period

Please help me any chance to go administrative review or possibility to claim damage from my solicitor

Many Thanks

What happened between May 2013 and August 2013?

If your wife successfully applied in-time prior to May 2013 to switch from PSW dependant to Tier 2 dependant, then I think your solicitor was correct.

319E(d)(ii)

(c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and

is also satisfiable during the period that she had leave as your dependant under another category of these Rules.

The caseworker should have included her PSW dependent period.

What happened between May 2013 and August 2013?
She was in India, she had switched to Tier 2 Dependent Visa with in 6 months time
The solicitor told me that she has got her new visa with in 6 months time. so thats fine.

So, the gap was the problem.

The rules require the entire 5 year period to have been covered under any dependant visa.

[CR001]

What your solicitor has said seems to be relevant to the Long Residence ILR scenario, i.e returning within 6 months to maintain residence after applying for a new visa from abroad.

Tier 1 PSW PBS dependent in Oct 2011 from until May 2013
Switched to Tier 2 Dependent on Aug 2013, she will completing 5 yrs in Aug 2013

What date did the PSW dependent visa expire?

What date did she leave the UK in 2013?

What date did she APPLY for the Tier 2 Dependent visa??

[vinny]

Ah. Switching refers to applying for leave to remain from inside the UK.

Your solicitor may be thinking of Long residence applicants.

Unfortunately, her continuous period for ILR as a PBS dependant is subject to:

Pre 24 November 2016
The continuous period is maintained if the applicant either:
• leaves the UK with or without valid leave, but applies for new entry clearance within 28 days of their leave expiry date, is granted and re-enters the UK using that entry clearance
• leaves the UK with valid leave and re-enters the UK whilst that leave remains valid
If the applicant’s leave expires whilst they are outside the UK and they apply for new entry clearance more than 28 days after their previous leave expires, the continuous period is broken and leave is not aggregated.

[Tier2_to_ILR]

Tier 1 PSW PBS dependent in Oct 2011 from until May 2013
Switched to Tier 2 Dependent on Aug 2013, she will completing 5 yrs in Aug 2013

In UK 6 years, 8 months in PSW Dependent & Tier 2 Dependent
In UK 4 years, 10 months in Tier 2 Dependent

My solicitor told PSW dependent also PBS migrant so you can apply, but 319E has an extra word relevant PBS dependent

My solicitor is OISC registered and lost 3000 pounds. I have his letter wrote to UKBA mentioning about my wife PBS scenario. Case worker told we saw your solicitor letter and said we will not consider PSW dependent period

Please help me any chance to go administrative review or possibility to claim damage from my solicitor

Many Thanks

What happened between May 2013 and August 2013?

If your wife successfully applied in-time prior to May 2013 to switch from PSW dependant to Tier 2 dependant, then I think your solicitor was correct.

319E(d)(ii)

(c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and

is also satisfiable during the period that she had leave as your dependant under another category of these Rules.

The caseworker should have included her PSW dependent period.

What happened between May 2013 and August 2013?
She was in India, she had switched to Tier 2 Dependent Visa with in 6 months time
The solicitor told me that she has got her new visa with in 6 months time. so thats fine.

She renewed her visa with in 6months time , no continuity broken. I think

[Tier2_to_ILR]

What your solicitor has said seems to be relevant to the Long Residence ILR scenario, i.e returning within 6 months to maintain residence after applying for a new visa from abroad.

Tier 1 PSW PBS dependent in Oct 2011 from until May 2013
Switched to Tier 2 Dependent on Aug 2013, she will completing 5 yrs in Aug 2013

What date did the PSW dependent visa expire?

What date did she leave the UK in 2013?

What date did she APPLY for the Tier 2 Dependent visa??

What date did the PSW dependent visa expire?
18 May 13
What date did she leave the UK in 2013?
29 April 13
What date did she APPLY for the Tier 2 Dependent visa??
28 August 13 , she secured her tier 2 dependent visa

[Tier2_to_ILR]

Ah. Switching refers to applying for leave to remain from inside the UK.

Your solicitor may be thinking of Long residence applicants.

Unfortunately, her continuous period for ILR as a PBS dependant is subject to:

Pre 24 November 2016
The continuous period is maintained if the applicant either:
• leaves the UK with or without valid leave, but applies for new entry clearance within 28 days of their leave expiry date, is granted and re-enters the UK using that entry clearance
• leaves the UK with valid leave and re-enters the UK whilst that leave remains valid
If the applicant’s leave expires whilst they are outside the UK and they apply for new entry clearance more than 28 days after their previous leave expires, the continuous period is broken and leave is not aggregated.

Not he clearly mentioned in his letter that she's applying 5 year dependent route

[CR001]

She renewed her visa with in 6months time , no continuity broken. I think [/b]

Unfortnately, by applying for a new entry clearance (which is not a renewal) visa outside the UK, her 5 years residence for ILR counts from August 2013. The 6 months you are referring to is relevant to ILR based on long residence and not 5 years residence ILR, as vinny's links explain.

What date did the PSW dependent visa expire?
18 May 13
What date did she leave the UK in 2013?
29 April 13
What date did she APPLY for the Tier 2 Dependent visa??
28 August 13 , she secured her tier 2 dependent visa

Continuity on the PBS dependent route would only have been maintained if she had applied for the tier 2 dependent visa within 28 days of her previous visa expired, which in your/her case, is not what happened.

Makes no difference what your advisor wrote in a letter, she failed to meet the requirements of 5 years residence in the immigration rules.

[CR001]

Ah. Switching refers to applying for leave to remain from inside the UK.

Your solicitor may be thinking of Long residence applicants.

Unfortunately, her continuous period for ILR as a PBS dependant is subject to:

Pre 24 November 2016
The continuous period is maintained if the applicant either:
• leaves the UK with or without valid leave, but applies for new entry clearance within 28 days of their leave expiry date, is granted and re-enters the UK using that entry clearance
• leaves the UK with valid leave and re-enters the UK whilst that leave remains valid
If the applicant’s leave expires whilst they are outside the UK and they apply for new entry clearance more than 28 days after their previous leave expires, the continuous period is broken and leave is not aggregated.

Not he clearly mentioned in his letter that she's applying 5 year dependent route

What vinny is saying is that the advice he gaveyou is ONLY applies to Long Residence ILR and as she applied based on 5 years PBS Dep route, the advice was wrong, her continuity is broken as she applied for a new entry clearance visa more than 28 days after the last visa expired.

[Tier2_to_ILR]

Ah. Switching refers to applying for leave to remain from inside the UK.

Your solicitor may be thinking of Long residence applicants.

Unfortunately, her continuous period for ILR as a PBS dependant is subject to:

Pre 24 November 2016
The continuous period is maintained if the applicant either:
• leaves the UK with or without valid leave, but applies for new entry clearance within 28 days of their leave expiry date, is granted and re-enters the UK using that entry clearance
• leaves the UK with valid leave and re-enters the UK whilst that leave remains valid
If the applicant’s leave expires whilst they are outside the UK and they apply for new entry clearance more than 28 days after their previous leave expires, the continuous period is broken and leave is not aggregated.

Not he clearly mentioned in his letter that she's applying 5 year dependent route

What vinny is saying is that the advice he gaveyou is ONLY applies to Long Residence ILR and as she applied based on 5 years PBS Dep route, the advice was wrong, her continuity is broken as she applied for a new entry clearance visa more than 28 days after the last visa expired.

Ok thank you so much to everyone. Finally OISC solicitor mistake nothing can be done
will she eligiable before 28 days for 5 years or she need to complete full 5 years

[CR001]

She can apply within 28 days before reaching 5 years provided she still has a valid visa. You will need to pay the fee again u fortunately.

[Tier2_to_ILR]

She can apply within 28 days before reaching 5 years provided she still has a valid visa. You will need to pay the fee again u fortunately.

yes CR001

case worker said u have visa untill dec 18 ,dont need leave country for this decision . come in 2 months . you'll be fine

[Tier2_to_ILR]

Experts please help. Whether AR decision is correct ? is it worth taking to Judicial review

[CR001]

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[Tier2_to_ILR]

Experts please , below the AR review



Applying new leave from overseas break continuous stay ?

[CR001]

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