Dependant ILR with new Entry clearance b/w qualifying period

[varghesejim]

I would like to know the 5 year qualifying period for dependents(spouse) can be calculated without considering new issue of visa in between qualifying period. We are on Tier1 (general) visa.

Dependent first EC issued: July 2009(3 years)
Dependent date of entry: September 2009
Date Dependent left the country(for maternity): June 2012(visa expired same month)
Dependent second entry clearance issued: Jan 2013
Dependent date of (second) entry : March 2013

Main applicant ILR eligibility date:July 2014

So, on July 2014 the dependent will be completing 4 years and 1 months(excluding the maternity absence) in UK overall. Because she applied for second entry clearance after the July 2012 rule changes she need to complete 5 years for ILR.

We based our decision to not extend her visa when she went for maternity on the previous rule of co-habitation of two years NOT being continuous. However, the rule change spoiled all the plans.

My question here is, as per the new rule does she need to complete 5 years from her second date of entry (March 2013)? Or is she eligible for ILR calculating 5 years from her first entry date?

Please provide your valuable inputs.

[vinny]

My guess is from her first entry date (319E).

[varghesejim]

My guess is from her first entry date (319E).

Thank you, Vinny.

[syb007]

Vargasejim,

I'm in same boat as you. Were you able to apply for your wife? I check 319E and it is not still very clear to me.

Thanks,
Syb

[krisbal]

I think she is eligible to apply for ILR based on her 1st entry date.

[varghesejim]

Vargasejim,

I'm in same boat as you. Were you able to apply for your wife? I check 319E and it is not still very clear to me.

Thanks,
Syb

I will get ILR on June 2014 and my wife will be eligible by September 2014 by calculating 5 years from her first entry date.

[syb007]

Thank you for your response. I got my ILR just 2 days back and will be applying for my wife in 2 weeks time. I will update you how it goes with my application.

Thanks,
Syb

[Sep08T1Applicant]

Hi,
My case is not exactly similar to you both but it is relevant, you can read my query here. I earlier thought that the leave as your dependant spouse/Unmarried partner issued earlier will be counted towards probationary period but reply below says its not.
I did an email to "SettlementOpsPolicy@homeoffice.gsi.gov.uk" regarding the EC after 9th July 2012 they forwarded my email to general enquiries. General enquiries response was quite straightforward (not good for me or some people's dependant), please find the response below. In my email I did include the details of my wife visa and explain her previous Tier 1 Dependant Visa and Student visa, explained every single bit of information to them but they forwarded to general enquiry, finally I replied him back with 319E(d)(ii) and ask him clarification on this (still waiting):

Earlier response from UKBA:
Dear Mr AAAA,

Thank you for your email dated 2013. Your enquiry has been forwarded to Home Office Public Enquiries because it is not a policy enquiry.

From the information you have provided, as your wife left the UK prior to the completion of her extension application and returned with a Fresh Entry Clearance which was applied for after the 08 July 2012, she will be subject to the Rules in place after 9th July. This means your wife will not qualify for Indefinite Leave to Remain at the point when you make your application in September 2013. She will have a 5 year qualifying period for settlement starting from August 2012.

Yours sincerely,

UK Visa & Immigration

[Sep08T1Applicant]

further update in relation to my email, please find settlement services reply below, please can anyone comment:

Dear Sir,

Thank you for your e mail enquiry regarding the immigration rules for the partner of a PBS migrant in respect of indefinite leave to remain (ILR), which has been passed to me for response. As you are aware, before the immigration rules were changed 9 July 2012, it was possible for anyone who held leave this category, to be eligible to apply for ILR after 2 years. Since that date, anyone who had been granted leave to enter or remain before that date, will continue to be eligible to qualify for ILR after 2 years. However, anyone entering the UK under paragraph 319 after that date, will not be eligible to apply for ILR until they have spent 5 years in this category.

Although your wife was granted leave under paragraph 319 before 9 July 2012, she left the UK and allowed that leave to expire. She then re-entered the UK with new entry clearance under paragraph 319 after 9 July 2012, therefore she cannot count her previous leave towards the qualifying period. Under the new rules, she will not be eligible to apply for ILR until she has held continuous leave in this category for a period of 5 years from her last entry clearance date.

I trust this clarifies the situation.

Regards
Settlement, Family and Nationality Operational Policy & Rules |Operational Systems Transformation | Home Office

[vinny]

However, there isn't any 'continuous leave' requirement in 319E(d)(ii), is there?

[Sep08T1Applicant]

Thanks Vinny, this is what more concerns me, I am really worried, I was thinking my wife student visa (when she was not my dependant) will not count towards the probabtionary period for 5 years but I was quite hopeful her first entry clearance as my dependant in January 2009 will be ok to count towards 5 years and as per that she will be eligible in 2014 December, but there reply said it isn't, do you think I will email back to them and ask them ? please if you can kindly quote me some points I will be grateful.


Kind regards,

[Sep08T1Applicant]

Just something to add here from " Family members of points-based system migrants -This guidance is based on the Immigration RulesCombining Leave For ILR (Page 33)

Can you shed some light on this?

[vinny]

Do email them back.

Ask them where is a 'continuous leave' requirement in 319E(d)(ii)? The 'continuous leave' only occurs in 319(d)(i). Note that the first words in (ii) are "If (i) does not apply,..".

Moreover, I cannot find the definition of 'continuous leave' in this context. It's more complicated as leave is not required when one is outside the UK.

Update

[Sep08T1Applicant]

Thank you very much Vinny, I really appreciate your response. I will certainly do that and keep updating. I will also refer that "Combining leave for ILR" previously quoted in my earlier post.


Kind regards

[vinny]

If there is a continuous leave requirement, then they may be using similar principles as outlined below.

Continuation of lawful leave during absences from the UK

This page tells you about lawful leave continuing during absences from the UK. The continuous period is maintained if the:
 applicant leaves the UK without valid leave, but re-enters with new entry clearance within 28 days of their leave expiry date
 applicant leaves the UK with valid leave and re-enters the UK whilst that leave remains valid, provided the absence(s) do not exceed 180 days in a relevant 12 month period, or
 applicant’s leave expires for 28 days or less whilst outside the UK and the applicant returns with new entry clearance.

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, then the continuous period is broken and leave is not aggregated.

[Sep08T1Applicant]

Yes, you are right, thanks for pointing that out, it should be more precise and clear as per the above document. Thanks God it is just applicable for Main applicant
Also, I have found this (not sure it is relevant or not):

Section E-ILRP: Eligibility for indefinite leave to remain as a partner states that:
E-ILRP.1.4. In calculating the periods under paragraph E-ILRP.1.3. only the periods when the applicant's partner is the same person as the applicant's partner for the previous period of limited leave shall be taken into account.

[vinny]

E-ILRP.1.4 is probably significant if your partner runs off with someone else? Then the previous periods with you cannot be included for your ex-partner's ILR.

[Sep08T1Applicant]

E-ILRP.1.4 is probably significant if your partner runs off with someone else? Then the previous periods with you cannot be included for your ex-partner's ILR.

My wife is with me since we got married in 2006, so that means E-ILRP.1.4 is relevant and case worker should calculate based on previous leaves.

[vinny]

Yes. That's true as well.

[vinny]

However, E-ILRP isn't applicable here because E-ILRP.1.3 isn't applicable for applications under 319E.

[Sep08T1Applicant]

However, E-ILRP isn't applicable here because E-ILRP.1.3 isn't applicable for applications under 319E.

Ok, thanks for the information, I can understand this is relevant to settled/British/in the UK with refugee leave or as a person with humanitarian protection whereas 319 E is relevant to PBS dependant. I will wait for UKBA's response.

Regards,

[Sep08T1Applicant]

Hi Vinny or anyone who is in the same boat,
I really want an opinion and to share some thoughts through your experience. I have a plan to see Level 2 OISC registered solicitor but I have seen so many people says the same thing that solicitors are just trying to get money.

I was actually planning to apply my wife settlement with me by combining previous dependant leave and including this current leave which will be all together 3 years 10 months at the time of application and I thought I will seek discretion on the following basis (5 year rule implementation reasons):

1) Basis of increasing 2 years to 5 years probationary period is to check the relationship is Genuine and Subsisting and to prevent migrants who have not paid taxes or national insurance contributions from taking advantage of the welfare system before non-EEA migrant partners may apply for settlement.

We have all the required document to prove that, within the second day of our marriage me and wife were here. We had our two kids born here.

2) Contribution towards the society

It is not that my wife is new to society, she worked and contributed here. She was a taxpayer. I am just trying to see and evaluate every possibilities I can think of.

3) Compassionate reasons

Immigration rules are constantly changing, I do understand changes in rule are for valid reasons and relevant people should keep an eye on but I would like you to understand that not everyone can do that. In my case I was totally unaware of the rule changes and I thought we are good enough as my wife is completed more than 2 years and 8 months (January 2009 - October 2011) and we did make an in-time application but there are few times in life when you have no other options apart meeting your parents and specially when one of them is going through some life threatening illness. Although we did withdraw the application and went back.

We have got evidence to prove all the above points. I thought I will do this just to try an option only if they accept first/initial entry clearance for my wife. In case if UKBA refuse my wife's application then I will try and appeal and at that time if there is any need I will hire a solicitor. To be very frank I am more worried about day by day changing things after experiencing post 9th July 2012 rules that is why I wanted to get my wife's ILR with me. My two kids are born here so by virtue of 1(3) I will register them using MN1. What do you think (just opinion)?, do you think one can contest that? just wanted to take your experience and other people experience if anyone else is reading this to make my mind.

I thought I will ask them as there are transitional arrangements for pre 9th July 2012 applications and there are no arrangements to cater people like me on the basis if applicants have a lawful and valid stays with genuine and subsisting relationship and contributed towards society (though little but at least something)

I am also surprised are there very less people unfortunate like me who is not in the same boat. Syb007 is the one and I am still waiting to see what happened to her wife's application.

Kind regards

[geriatrix]

Just something to add here from " Family members of points-based system migrants -This guidance is based on the Immigration RulesCombining Leave For ILR (Page 33)

Can you shed some light on this?

Pretty clear that the dependant must have had immigration status of spouse, civil partner, unmarried or same-sex partner

If the applicant has previously been granted leave in another category of the Immigration Rules as the spouse, civil partner, unmarried or same-sex partner of the same main applicant (that is, the PBS migrant), that leave can be combined with leave granted as a PBS dependant to count towards the probationary period for ILR, provided their most recent leave has been as the partner of that PBS migrant.

[Sep08T1Applicant]

Just something to add here from " Family members of points-based system migrants -This guidance is based on the Immigration RulesCombining Leave For ILR (Page 33)

Can you shed some light on this?

Pretty clear that the dependant must have had immigration status of spouse, civil partner, unmarried or same-gender partner

If the applicant has previously been granted leave in another category of the Immigration Rules as the spouse, civil partner, unmarried or same-gender partner of the same main applicant (that is, the PBS migrant), that leave can be combined with leave granted as a PBS dependant to count towards the probationary period for ILR, provided their most recent leave has been as the partner of that PBS migrant.

Thanks sushdmehta for your response, yes I do understand that very clearly that means dependants as a PBS dependant should also include as my wife was my partner visa wise my dependant and her initial entry clearance should count, I am not talking about my wife stay to count since 2006, my concern is at least they should count my dependant initial entry clearance towards 5 years probationary period.

[geriatrix]

Feedback to the concern here.
Continue your queries / concerns in that topic (easy to focus on 1 topic).