If a partner is not eligible for ILR, what would happen?

[SnowySammy]

Hello everyone,

I would like to know how a partner who does't meet the ILR requirement can stay with an ILR holder together with their children. I really do not want to face to live separately from my family so I would truly appreciate any advice from the people in this forum.

I have been holding a Tier2(General) Visa since April in 2011. My husband and my two children also obtained Tier2 dependant visas at the same time. We will be eligible to apply for ILR next March in 2015 which will be the exact five years from our stay in the UK. However we are facing several difficulties and I would truly appreciate if anyone could give me an advice.

1) My husband might not meet the ILR requirement (i.e., B1 English test and Life in the UK test) by next March. In this case can he apply the extension of Tier2 at the same time when I apply for the ILR or does he have to wait until I obtain the ILR and apply for his extension? At the point of next March, he will have hold his Tier2 visa already for five years. Would it be possible to extend it even longer?

2) In the case my husband is not eligible to apply for the ILR with me, could our children at least apply for the ILR on my application or do they need to wait until my husband become eligible for the ILR?

3) Our eldest son will be turning 18 next July in 2015. In the case that our sons couldn't apply for the ILR with me next March because of my husband's ineligibility, can our eldest son still solely apply for the ILR as a dependant of my child once he turns 18 next July? I'm assuming that in this case he would first need to apply for the extension of his Tier2 dependant visa next March with my husband and then wait for his birthday, and apply for the ILR in July as my dependant. This is important because he is going to an university next year and depending on his immigration status, the university will change his student status from a foreign student to a home student.

4) Or is there any other way that we all can stay in the UK even in the case my husband is ineligible for ILR but our children can get ILR before him?

Thank you so much in advance. Again, I would truly appreciate for any advice on above questions.

Regards,

[secret.simon]

Were your children born in the UK or abroad?

A Tier 2 Dependant visa can be extended, but only while you are still a Tier 2 visa holder. Once you get ILR, your husband will need to apply for a dependant of a settled person visa, which I believe would reset his clock and he will need to wait for another five years. So, if you plan to extend his Tier 2 dependant visa, do it before you get ILR.

[SnowySammy]

Thank you so much Simon. Both of our children were born in other countries (US and Japan). UKBA website says in the family of a settled person’ visa section:

"Exceptions: Your partner originally had a temporary visa as a worker（https://www.gov.uk/remain-in-uk-family/exceptions）

If your partner was in the UK on a temporary visa before settling or becoming a British citizen, you may have to apply as a ‘dependant’ (partner) in their original visa category."

thus I thought my husband cannot apply for family of a settled person’ visa, is it not the case?

I was also wondering since we granted leave before July 2012, is there any transitional provisions applied for our case?

Any comments would be greatly appreciated.

Regards,

[vinny]

You are correct. If you are granted ILR under Tier 2 (General), then your husband may keep on extending as a PBS dependant for a further 3 years under 319C and 319D. Your children may apply for ILR under 319J with you.

[SnowySammy]

vinny, I really don't know what to say. Thank you so so much. Could I still ask the followings:

1) if I and my two children can apply for ILR and my husband can apply for the extension of his Tier2 dependant visa at the same time?

2) Our Tier2 visas including the dependant visas were extended once last year. I hope this would not cause any problem for being a child of PBS migrant before July 2012 as we were initially granted for the same status in 2011 (319J).

3) Is our case considered to be rare? In other words, do you recommend me asking for a professional help to deal with our applications for ILR and the Tier2 extension together?

I would very much appreciate for your reply.

Regards,

[vinny]

1. Yes. Although if applying in-person, I'm not sure if you have to make separate appointments or not. Your husband's leave should be decided after yours.

2. Children should be okay.

3. I don't think it's rare. It's your choice to consider professional advice.

[SnowySammy]

Many thanks for your kind advice, you truly saved our family. I will look into more details but our main concerns were already resolved by your answers.

Best regards,

[SnowySammy]

Hello again. I just discovered that after 2016 April Tier2 holders are not allowed to apply for ILR. I would like to know if this applies to our case described above. Although three of us (myself and two children) would be still OK because we are planning to apply for ILR before this change, but would my husband loose his eligibility to apply for ILR during the 3-years-extension period of his Tier2 dependant visa if he didn't apply for ILR together with us before this change? I was very much hoping he could prepare for ILR during this period and obtain his ILR soon after us. I would very much appreciate for any advice. Thank you.

Regards,

[vinny]

Tier 2 and Tier 2 dependants are different categories. As long as the Tier 2 holder gets ILR, the dependants should be okay.

[SnowySammy]

Thank you so so much again, vinny.

Best regards,