Implication of ILR dependent on citizenship

[dayem98]

Hi guys,

I am applying for ILR in next few days (May 2016) as I have been here on Tier-2 visa for five years. My wife will apply with me as ILR dependent. Her case is little tricky. She was first granted PBS dependent visa in July 2009, when I was in Tier-4 visa. But in September 2010, she got her own Tier-4 visa as she started her PhD here. She became my Tier-2 dependent again in January 2015. I am taking chance with the fact her first PBS dependent visa was granted before 2012. So, she lived with me as PBS dependent for more than 2 years in total, thereby (hopefully) eligible for ILR dependent application according to rule before 2012. I want you to clarify whether I am mistaken on that ground. We have solid proofs of cohabitation for last 7 years.

My other concern is, if she is granted ILR dependent visa with me, can she apply for citizenship next year with me as well or does she have to wait further?

Thanks in advance.

-Abu Ullah

[CR001]

She doesn't qualify to apply for ILR with you. (ILR dependent is not ILR, it is a spouse visa. I am assuming you mean ILR)

The fact that she held her own Tier 4 visa effectively wipes out her previous PBS Dependent time and this cannot be used now. She will qualify for ILR in 2020 as PBS dependent of in 2019 via ILR 10 years long residence.

[dayem98]

Dear Char,

Thanks for your very quick reply. I understand your point about her ineligibility. Just for my knowledge, if she had been eligible with me at the same time, wouldn't she apply using the same SET(O) form as my dependent. Or would she have to make other independent ILR application?

In other words, if the dependent is eligible for ILR at the same time as main applicant, they don't have to apply separately rather they can use the single SET(O) form, isn't it? but if the dependent is not eligible, then she has to extend her visa as ILR/PBS dependent using a separate form?

Sorry if my questions are too naive.

[CR001]

Yes, it would be one Set(O) for both of you.

She can continue to extend her PBS dependent visa. She DOES NOT have to switch to ILR Dependent, i.e. FLR(M).

She also will have to pay the immigration health surcharge when she extends.

[dayem98]

Thanks, Char! She already has tier-2 dependent visa until January 2018, by which she will be eligible for her ILR in 10 year route, as she first came here in January 2008.

So, finally, your advise would be for her to stay as PBS dependent on the current visa and apply on her own. Even if she applies with me now in the same SET(O) form, and then I am granted ILR but she is refused, her existing Tier-2 visa will still remain valid, isn't it?

Thanks for your useful input.

[CR001]

So, finally, your advise would be for her to stay as PBS dependent on the current visa and apply on her own. Even if she applies with me now in the same SET(O) form, and then I am granted ILR but she is refused, her existing Tier-2 visa will still remain valid, isn't it?

You apply for ILR on your own, she does not qualify so you do not add her as an applicant in the form. Why do you want to pay the high fee for ILR and then she is refused? It doesn't make sense to waste money like this. There is no reason that she has to be included and apply with you now on Set(O) and I don't understand why you think she does.

She can continue on her existing visa until she qualifies for ILR, either 5 years residence or 10 years long residence. She does not have to make any application now if she has valid leave to remain.

[dayem98]

Thank you. Your advise is justified.

The only reason I hoped is because she had one PBS dependent visa issued before 2012. Transferring to the Tier-4 wiping out her previous PBS-dependent stay was the killer, it seems. But then, at that time spouse couldn't go for full-time education without switching to Tier-4.

Thanks again.

[CR001]

at that time spouse couldn't go for full-time education without switching to Tier-4. \

Really? Which rule was this? As far as I am aware, PBS Dependents can study and work in the UK.

[dayem98]

Dear Char,

You are right. There was no such rule. How stupid of me!

I have a final set of questions for you:

1. You said ...

She can continue to extend her PBS dependent visa. She DOES NOT have to switch to ILR Dependent, i.e. FLR(M).

Why not switch to FLR(M)? Will it reset her ILR clock for further 2 years or 5 years?

I can see the justification for remaining as PBS dependent from the following government rule:

From 9 July 2012, dependent partners of PBS migrants must complete a five year
probationary period before they qualify for ILR. If the PBS migrant obtains ILR or British
citizenship before their partner has completed their 5 year probationary period, the partner
can still apply for further leave to remain as a PBS dependant rather than as the partner of a
settled person. If their application meets the requirements, leave to remain can be granted
for up to 3 years.

2. I just checked her first entry date in UK. I realised that although her first visa was valid from 10 January 2008, she actually came to UK on 26 January 2008, and her current tier-2 dep visa will expire on 18 January 2018. Does it mean she will fall short of 10 years period for 8 days?

3. Which form should I use to extend her PBS dep visa if I am in ILR? I found similar form for tier 1 and 5 migrant, but no such thing for tier 2. Would be really helpful if you can point that form.

4. Also, if I am in ILR and start working in different company (or even same company but different contract that extends beyond her qualifying period), will it be considered good for PBS dep application?

Cheers.

[CR001]

1. Yes it will and it will be a new 5 year route, but will not make a difference for ILR 10 years long residence when she qualifies.

2. She can apply for ILR based on long residence 28 days days before reaching the actual 10 year residence mark. She should be fine to apply with her current visa validity.

3. She doesn't need an extension if applying for ILR base don 10 years long residence. But Tier 2 G Dependent is an online application only, there is no paper form.

4. Her visa is dependent on YOU, not on your sponsor. It makes no difference to her dependent visa if you change jobs or stop working.

[dayem98]

Thanks a lot, Char! Can't express enough gratitude for your very useful insight on the matter.

Returning back to point 2. I saw some posts in this board where applicant falls short of few days to complete qualifying period for ILR, and they have to extend their current visa somehow before applying for ILR. You are confirming me that in my wife's case, even if she falls short of 8 days from first entry in the UK up to recent valid visa, she can still go for ILR if apply before 28 days.

[CR001]

She will likely not require an extension for 8 days. Many migrants have applied within the 28 days allowed prior to meeting the residence requirement and their leave not quite reaching that date.

All as the rules stand at this point.