ILR category for dependent

[PBP11]

Dear Moderators,
I would be grateful if you can provide your kind suggestions on the following.
My wife first arrived UK on 30/10/2014 (Visa valid from 26/10/2014) as Tier 2 General Dependent with visa validity upto 14/04/2016. She had to travel to India on maternity purpose from 12/10/2015 until 27/03/2016 (166 days). When she came back on 27/03/2016, we have renewed her Tier 2 dependent Visa ( in India) along with the child born in India (as she had only 18 days remaining on the old Visa and child required a visa for entry to UK). The renewed Visa approval date was 22/03/2016. She is continuously staying with me until then.
My question is: What will be her earliest eligible date to apply ILR (via five year route)? Is it based on the first approved Visa date (26/10/2014). Or based on the renewal done in India in March 2016 (Note: She had a valid visa at that time, but expiring soon).
Please share your suggestions/link I can clarify this confusion.
Looking forward to hear from you.
Thanks

[zimba]

28 days from completing the 5 years based on her first visa issue date which is 26/10/2014. So she will be eligible at the end of September.

[PBP11]

28 days from completing the 5 years based on her first visa issue date which is 26/10/2014. So she will be eligible at the end of September.

Thanks for your kind response. Glad to hear that renewal done from india didn't reset her ILR clock...

[PBP11]

Husband's immigration status : ILR (5 year route) from July 2018.

Wife : Tier 2 PBS dependent from October 2014 - until June 2022 (extended in June 2019 for 3 years)- Renewed Tier 2 in March 2016 from outisde UK (before expiry of the Tier 2 visa in April 2016).

Child: Tier 2 PBS dependent from March 2016 until June 2022 (extended in June 2019 for 3 years)

Wife and child are in UK with me.

Question 1: Can dependent wife alone apply for ILR on September 2019 (28 days before 5 year completion) ?

Question 2: Can child directly apply for British passport once both parents are on ILR, without applying for ILR ?

Please kindly provide your suggestions.

[CR001]

Question 1: Can dependent wife alone apply for ILR on September 2019 (28 days before 5 year completion) ?

Yes but child will still need ilr as the child was born abroad.

Question 2: Can child directly apply for British passport once both parents are on ILR, without applying for ILR ?

No. The child is not British and only a British citizen can apply for a British passport. Child needs ilr first and can only apply to register as British once either parent is also applying for citizenship and the other parent holds ilr. There is no shortcut for your child born abroad.

[PBP11]

Thanks CR001 for your reply. Much appreciated.

[PBP11]

Dear Moderators,
Could you please provide your advise regarding my query on ILR dependent application category ?

Husband's immigration status : ILR (Tier 2 PBS 5 year route) from July 2018.

Wife : Tier 2 PBS dependent from October 2014 - until June 2022 (extended in June 2019 for 3 years)-

Child: Tier 2 PBS dependent from March 2016 until June 2022 (extended in June 2019 for 3 years)

Wife and child are in UK with me.

I am currently preparing the ILR application for both dependents

Question: UK GOV website says regarding dependent eligibility for ILR "If you got your current visa as your partner’s dependant after they settled in the UK, you must apply as the partner of a settled person instead".

Dependent's last visa extended in June 2019 was granted (as tier 2 dependent) when husband is on ILR, does that means that above statement apply for them or not? or they can apply as Tier 2 dependent on a 5 year route?

Please kindly provide your advise.
Thanks

[CR001]

They apply in form set o as tier 2 dependents.

The quote you state is if she switched to spouse of settled person spouse visa after you got ilr, ie FLR M form.

[PBP11]

Thanks CR001 for your response.....

[PBP11]

Hi Moderators,
I have applied for ILR for my dependent wife and child on 14/02/2020, based on the completion of their five year period as PBS dependent. I received the following reply from home office regarding questioning their eligibility. Could you please kindly provide your advise on this?

"I am the caseworker dealing with your applications for indefinite leave to remain as dependents of a Tier 2 Migrant. At present I am unable to proceed with your applications. The reason for this is that I require further information from you.

Our records show that you were issued a Tier 2 Partner Entry Clearance visa valid from 07 October 2014 to 14 April 2016 with no in-country Leave to Remain extensions to this visa. You then were issued with a Tier 2 Partner Entry Clearance visa valid from 20 March 2016 to 14 April 2017. In-country Leave to Remain extension were then granted following this Entry Clearance visa.

As part of the Immigration Rules, one of the requirements for Indefinite Leave to Remain as a Tier 2 Dependent Partner is for the migrant to have had a continuous period of 5 years as a partner of a relevant Points based System (PBS) Migrant. Our records show that you have not had a continuous 5 year period as a partner of a PBS migrant (as detailed above).

With this in mind, we enquire if you wish to vary your Tier 2 Dependent Partner / Child Indefinite Leave to Remain applications to a Tier 2 Dependent Partner /Child Leave to Remain applications. You may wish to seek legal advice to discuss your options.

Please can you respond by no later than 5pm on 16 April 2020.

We look forward to your reply.

Kind regards

Visas & Citizenship Operations – Work and Study

Home Office"

Level 2, Vulcan House Iron, Millsands, Sheffield S3 8NU

28 days from completing the 5 years based on her first visa issue date which is 26/10/2014. So she will be eligible at the end of September.

[zimba]

I believe the case worker is mistaken. PBS dependants do not have any absence limit unless their visa was issued after 11 Jan 2018. Your wife laso held valid visa continuously throughout the 5 year period.

PBS and Appendix W dependant partners
You must not include any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 towards the 180 days allowable absences.

https://assets.publishing.service.gov.u ... -v20.0.pdf

[humanist100]

Our records show that you were issued a Tier 2 Partner Entry Clearance visa valid from 07 October 2014 to 14 April 2016 with no in-country Leave to Remain extensions to this visa.

Can someone please tell what this means? The visa issued cannot be extended in UK?

[PBP11]

Dear Zimba,
Thank you very much for your kind response.
We totally understand the absence rules for the dependent. My wife didn't have any continuous 180 days absence in any 12 month period after Jan 2018 or before that.
Could you please kindly hep with clarify regarding the entry clearance obtained from outside UK? The immigration history is summarised below for your kind note

First Tier 2 PBS dependent Visa valid from 07/10/2014 until 14/4/2016.
Date arrived in UK (first entry):30/10/2014
Period away from UK due to maternity: 12/10/2014 - 27/03/2016.

As the visa was expiring in 17 days time (14/4/2016) when she wanted to come back to UK in 2016 after the child birth, we have renewed the entry clearance from India for both wife and new born child

Second PBS dependent UK Tier 2 visa validity: 20-3-2016-14-04-2017 (Issued from India)
Date arrived in UK with the new visa (second entry): 27/03/2016 (i.e, arrived before the expiry of the first visa which 14/04/2016)

She was continuously staying with me in UK until then with valid PBS tier 2 Visa until 13-06-2022. She has no history of visa refusal and no criminal records.
I have seen similar thread in this forum with very similar situation as mine, where the ILR application was successful.

indefinite-leave-to-remain/will-pbs-dep ... 44801.html

If you can kindly review the situation here and let us know if we are missing anything here. As we have already submitted the application and stuck here as per the e-mail from case worker, could you please let me know if you have any suggestions for the next steps?
Thank you in advance

[PBP11]

Sorry there was typo in this line

Period away from UK due to maternity: 12/10/2015- 27/03/2016.

[zimba]

As I said the case worker is wrong. Your wife left with a valid visa, applied for a new visa before expiry and re-entered the UK. This maintains her continuous leave. The guide is VERY clear on this:

Continuation of lawful leave during absences from the UK

Pre 24 November 2016
The continuous period is maintained if the applicant either:

• leaves the UK with or without valid leave, but applies for new entry clearance within 28 days of their leave expiry date, is granted and re-enters the UK using that entry clearance

• leaves the UK with valid leave and re-enters the UK whilst that leave remains valid

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

https://assets.publishing.service.gov.u ... -v20.0.pdf

Reply to the caseworker that as per guide she has maintained continuous leave for the 5 years and as she has no absence limits, she must qualify for ILR

[PBP11]

Dear Zimba,
Thanks for your kind reply. Yes we have responded to the case worker by referencing this guidelines and waiting to see the outcome.
Much appreciate your kind help.

[PBP11]

Dear Zimba,
Glad to inform you that ILR for my dependent wife and child is approved and received the BRP by post today.
Really appreciate your and the admin group's kind advice on number of occasions.
Thank you....

As I said the case worker is wrong. Your wife left with a valid visa, applied for a new visa before expiry and re-entered the UK. This maintains her continuous leave. The guide is VERY clear on this:

Continuation of lawful leave during absences from the UK

Pre 24 November 2016
The continuous period is maintained if the applicant either:

• leaves the UK with or without valid leave, but applies for new entry clearance within 28 days of their leave expiry date, is granted and re-enters the UK using that entry clearance

• leaves the UK with valid leave and re-enters the UK whilst that leave remains valid

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

https://assets.publishing.service.gov.u ... -v20.0.pdf

Reply to the caseworker that as per guide she has maintained continuous leave for the 5 years and as she has no absence limits, she must qualify for ILR