ILR application

[Dhritz02]

Hello..My wife entered the UK in 2019 as a PBS dependant. She continued as a PBS dependant until November 2023. In November 2023, we renewed her leave to remain (at which point I was holding an ILR), however, because of a genuine mistake the application was submitted under the Family route and she was granted leave to remain under Spouse/Partner Leave to Remain and not PBS.

We recently made an ILR Application completely unaware of the error explained above which got rejected as invalid.Upon further investigation, we have been given to understand that not only was the form submitted incorrect (we should have submitted form Set O and not Set M) but also the ILR clock has reset for her, given there was a switch in the category from PBS Dependant to Family route (in error) and she will now have to wait till she completes 5 years under this Family route category.

Is there a route where she can still apply for an ILR given she has completed 5 years.

[zimba]

If the lead applicant settled while holding a skilled worker visa then there is no reset (time spent under any route including family route counts under skilled worker rules), so the issue is only that you must have applied using form SET(O) and choose the correct route, ignoring the family route visa status.

I covered this scenario before: viewtopic.php?t=350308#p2176294

[Dhritz02]

Thank you for your response.

Just to reiterate, I was on Tier 2 General for 5 years before I got my ILR and my wife was 4 years on PBS dependent and is currently on a Family/Spouse visa (since 2023).

So I was made to understand, since she was under a different category visa for her 5th year, the clock resets for her ILR application now.

Do you advice we still make an ILR application under set O?

Thanks in advance

[zimba]

No, it does not reset. Please read the advice given in the link above. There is no clock reset, just fix the error you made with the form and she can get ILR

[Dhritz02]

Okay thank you.. Honestly, none of the solicitors we approached gave us the comfort of re-applying through Form o but kept reiterating that the clock has reset due to change of category and that she will have to now wait for 4 more years.

[zimba]

Reports I have seen over the years on the forum suggest lots of the advice from solicitors tends to be either misleading or flat-out wrong. It is quite shocking that loads of their advice contradict the publicly available official UKVI guides, as if they do not know that they even exist

[Dhritz02]

Thank you Zimba. Please see the response below as received by an immigration lawyer, quite confused.

''The minute you applied for the spouse / leave to remain you broke the continuity as it now falls under a new scheme. Had you extended as a PBS you would have qualified now. It’s an issue I have encountered with others as they get advised to apply for the spouse visa (because the main applicant has ILR). This is wrong though as the clock resets. You are correct in thinking that you have to complete 5 years on the spousal route and then once 4 years and 11 months is completed you can apply for ILR under SET M.''

[zimba]

The lawyer is wrong.

The advice given clearly contradicts the official UKVI guide as well as the immigration rules in place. I suggest you send the lawyer the guide I showed you and ask them why their advice contradicts the UKVI and immigration rules. In fact, the immigration rules under the skilled worker route do NOT require the dependant to have been under a specific route and that is why the guide tells you all the time spent under the dependant routes as well as the family route counts. Many on the forum settled based on this advice.

You just need to have been their dependant partner for 5 years (under any partner/dependant route of the lead applicant) and no specific route is mentioned. The guide then clarifies this further.

The paragraph SW 39.1 of the rules says:

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.

https://www.gov.uk/guidance/immigration ... led-worker

[Dhritz02]

Thank you Zimba, this is really helpful.

Can we request you to clarify the meaning of 'dependant partner' in the guidance?.
Just want to confirm that dependant here does not mean PBS dependant.

Looking forward to your reply. Thank you for your constant guidance.

[zimba]

The guide makes this definition clear and also tells you that the time under the partner of a settled person (family/spouse route) counts:

Dependent Partners qualifying period

Dependent partners of Global Talent, Innovator Founder, T2 Minister of Religion, International Sportsperson, Scale-up and Skilled Worker lead applicants must complete a 5-year qualifying period before they qualify for settlement.

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 can apply for settlement without having to switch back to the relevant route. For more information relating to partner of settled person see Appendix FM guidance.

Where the lead applicant has been granted British citizenship, their dependants can still apply if they held permission as dependants at the time.

If the lead applicant is being granted settlement in, gained settlement through or has been granted citizenship following, UK Ancestry or Representative of an Overseas Business permission, the dependant may apply for settlement without completing a qualifying period and provided they can switch into the route.

https://www.gov.uk/government/publicati ... ing-period

[Dhritz02]

Noted, Zimba. Thank you very much.

[Dhritz02]

Hi Zimba,

Sorry to bother you again. Please see the response below we received from the lawyer after we shared the guideline links. Your advice will be highly appreciated.

''In the extract from Appendix Skilled Worker, the rules specify that to be eligible for indefinite leave to remain, a person must have 'last been granted permission as a dependant partner'. As your wife was last granted permission as a spouse under Appendix FM (and not Appendix Skilled Worker), unfortunately, she would not meet this criterion.



I understand your point that Appendix Skilled Worker does not specifically state throughout the rules that 'partner' means a PBS dependant partner, but this is the meaning when reading the guidance under the 'umbrella' of Appendix Skilled Worker. SW 39.2. does make this slightly clearer, when it clarifies that the reference to partner means a 'dependent partner… of the person in SW 39.1.'.

Thank you

[zimba]

That is not the correct interpretation and your lawyer refuses to even pay attention to the definitions given in the official guide. As I explained dependant partner does NOT refer to the skilled worker route dependant at all in that context. This is also the case under several other work routes like the global talent route, for example. In fact, this definition is not limited to any specific work-related route and applies to all.

The official guide very explicitly tells you what dependant partner means, in fact:

5-year permission requirement: partners
Those who are required to complete a qualifying period must have spent a
continuous period of 5 years in the UK with permission as a dependent partner of the lead applicant.
Dependant partner can include time as a spouse on family routes.

Dependent family members in work routes: https://www.gov.uk/government/publicati ... ing-period

Here is the same advice given to a concerned applicant + their ILR success: viewtopic.php?t=347772#p2166914

[Dhritz02]

Thank you for the clarification Zimba.. Please see the response below received from the lawyer. Thank you so much for your constant support.


''The guidance you have shared is the general guidance that covers settlement under all work routes; as such it refers back to the specific sections of Appendix SW. I agree that the guidance is confusing but ultimately, the Immigration Rules do take precedence over guidance. As stated previously, unfortunately, in Appendix SW, the requirement to have last held leave as a PBS dependant cannot be met in the current circumstances for a settlement application.''

[CR001]

Your solicitor is utterly and wholly incorrect!!!

Why are you wasting your time with this solicitor?? Is he charging you??

[zimba]

Thank you for the clarification Zimba.. Please see the response below received from the lawyer. Thank you so much for your constant support.


''The guidance you have shared is the general guidance that covers settlement under all work routes; as such it refers back to the specific sections of Appendix SW. I agree that the guidance is confusing but ultimately, the Immigration Rules do take precedence over guidance. As stated previously, unfortunately, in Appendix SW, the requirement to have last held leave as a PBS dependant cannot be met in the current circumstances for a settlement application.''

This is now quite ridiculous. The rules do NOT say the highlighted part of his claims, so what is he talking about ?
Where do the rules say that you must have last held leave as PBS dependant ? Can we see that please ?

The major issue here is that the skilled worker route is NOT a PBS route at all and the dependants are not called even PBS dependants. Rules do not mention PBS at all. Tier 2 PBS route has been dead for several years now !

The guide is also not confusing at all, it simply tells you what 'dependant partner' means in the context of the rules. In fact, the guide makes things crystal clear. The guides are there to clarify the rules

Why are you paying someone you do not trust ? Also if you do not trust us, why are you here ??

[Dhritz02]

Hello both,

Thank you for your replies. Apologies, if my comment came across like we dont trust the platform. Infact. if I am completely honest with you, we have gathered a lot of courage and confidence to make a fresh application on the basis of the learning on the platform.

We promise to keep you updated on the progress and thank you for your constant guidance.

Yours sincerely