Tier 1 to Skilled worker to ILR : Dependents Query

[c781]

Dear MODs,

First, I would like to thank all of you and all the members who contributed to this forum. This forum has been very informative and helpful to many of us. Thanks for all your support and help.

Well, here is my situation.

I came on a T1E visa in 2019 with my wife and kids as my dependents. I switched to a Skilled worker visa in 2023 and my family became dependent as usual. I successfully obtained ILR for myself in 2024 as I decided to apply for ILR for myself first. Now I applied ILR for my wife and kids. I received a reply from HO mentioned below.

"On the evidence currently available to us, we are considering refusing your application because your application does not meet the Eligibility requirements of the Immigration Rules.
SW 42.1. The applicant must have spent a continuous period of 5 years in the UK with permission as a dependent partner of the person (P) in SW 39.1.

You have not met requirement 42.1.

If we were to continue with this application, it is unlikely that it would lead to a favourable outcome for you and your children dependents, therefore we are offering you the chance to vary the application and re-apply for permission to stay.

Due to how our system works we are not able to change an application type, therefore, in order for us to be able to complete this option you will need to submit a new application for you and your children. The current application will stay open so that you can vary from this one to the new one so there is no break in the leave and that the new application is considered in time.

I have no idea what does it mean. My family has been here with me as my dependent for the last 5 years and did not have any absence of more than 180 days within 12 months period.

Would someone be able to help to advice what exactly is the issue here please?

Thanks

[zimba]

Your spouse has been your dependant partner for more than 5 years. Her visa route does not even matter under the skilled worker route. She can be granted ILR. Did you apply using form SET(O) and choose the 'Tier2/Skilled worker dependant' option ??

[zimba]

ILR clock does NOT reset for skilled worker dependants when the main applicant settles under the long residence

[c781]

Hi Zimba

Thanks for the reply. I filled out the SET(O) form and selected a skilled worker dependent on it.
However, when I read other topics posted by other members in this forum, I noticed that the CW would normally advise that the applicant had filled out the wrong form and needed to fill out the SET(O) form or SET(M) form. In my case, they did not. As you mentioned, my wife and kids have been here with me since day one, and they should not have any issues. Do you think CW overlooked their time spent as tier 1 dependents?

Thanks

[zimba]

In this case, the caseworker is wrong to say they do not qualify.

[c781]

Thanks for the reply, Zimba.

Just for the sake of discussion. I noticed that no rule says dependants could combine tier 1 and SW to make up to 5 years as dependants. So there is a grey area here. The reply from the caseworker is mentioned in the immigration rule. "Your partner can include the time they’ve spent as your dependant on another visa to count towards the continuous years they need to qualify. They cannot count any time spent on their visa (not as your dependant). This is just a guidance. However, it is not listed as an immigration rule. Do you think this could be an issue?

[zimba]

Actually, this is not a grey area and this is the wrong decision by this specific caseworker that contradicts the available official guides. Many success cases on the forum received the same advice.

First of all, there has never been a separate PBS dependant route for Tier 1, Tier 2, etc. They were all called the PBS dependant route and they were the same visa route. Then when Tier 2 became the skilled worker rules, the ILR rules simply asked for 5 years as a dependant partner of 'P'. Otherwise, people who spent time under the old PBS dependant visa could not even get ILR.

Secondly, the caseworker has claimed you failed the following paragraph:

SW 42.1. The applicant must have spent a continuous period of 5 years in the UK with permission as a dependent partner of the person (P) in SW 39.1.

However, your partner was always under a dependant visa route. You can even count the time under the family route as per the official guide. This means what I highlighted above does not refer to any specific route and being a dependant partner is not linked to any specific route:

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.

https://assets.publishing.service.gov.u ... routes.pdf

[c781]

Hi Zimba,

Thanks for the clarification. I completely agree with your explanation and I have the same thoughts. However, if we go by the rules, there is no rule saying that dependents could combine and make up to 5 years to be eligible for ILR. That is what the caseworker is picking up here. The caseworker did not count the dependent's time on the previous category and it doesn't say anywhere as the rule that the previous stay is counted towards the ILR. I have a few more days to reply and not sure how to go about it.

[zimba]

Hi Zimba,

Thanks for the clarification. I completely agree with your explanation and I have the same thoughts. However, if we go by the rules, there is no rule saying that dependents could combine and make up to 5 years to be eligible for ILR. That is what the caseworker is picking up here. The caseworker did not count the dependent's time on the previous category and it doesn't say anywhere as the rule that the previous stay is counted towards the ILR. I have a few more days to reply and not sure how to go about it.

The guide often clarifies the rules in place and provides context plus the interpretations.
Also, that is not what the rules say at all. The rules clearly say that being a 'dependant partner' is enough. The guide tells you who constitutes a dependent partner which includes even people under the family route.

The caseworker's interpretation is wrong when it comes to a dependant partner. The rules do NOT say the dependant partner must have been granted leave under any specific route at all. The guide also conforms to this interpretation. Again, such an improper interpretation effectively renders most dependant partners ineligible for ILR as I explained (which cannot be the case and has never been the case)

Reply that the claim that 'they do not have 5 years under the rules' is indeed incorrect as it contradicts the official guide in place and provide the link to the relevant guide.

[c781]

Hi Zimba,

Thanks for the clarification once again. I will reply accordingly and update the outcome to benefit anyone who comes across this situation.

Thanks a lot for your time.

[c781]

Hi,

Just curious, after replying to the HO on their query, how long would they take to answer/decide on the application? The initial application was a priority application.

[zimba]

Hi,

Just curious, after replying to the HO on their query, how long would they take to answer/decide on the application? The initial application was a priority application.

There is no timeline but it can be 10 days to a few weeks