Applying for ILR through 10 year long term - need some assistance

[swissman20]

Hello all,

Like so many others, as an Indian immigrant, this forum has been a source of great information and I'm calling upon your assistance as I look to apply for ILR through 10 year route.

A bit about my history in the UK

• Entered the country on 21/08/2010 under Tier 2 ICT Established staff - entry clearance issued on 09/08/2010 with visa expiry 22/09/2013
  Extended Tier 2 ICT in country; valid from 04/09/2013 and expiry on 06/10/2015
  Extended Tier 2 ICT in country ;valid from 14/08/2015 and expiry on 19/10/2017
  Changed employers and moved to Tier 2 G category in country; valid from 10/04/2017 and expiry on 04/06/2020
  I've applied to extend LTR on Tier 2 G (and my wife's visa as PBS dependent) as current visa expires in 2 days. I've recieved confirmation from HO via email that according to section 3C of the Immigration Act 1971, my stay is extended until they are able to process my application due to impact of COVID.

As per 10 year route, I'm eligible to ILR 28 days before my 10 year anniversary and I'm looking to apply ASAP under the current climate.

I have the following questions for the forum members:

• Can I count date of entry clearance (09/08/2010) as start of my 10 year period which means I can apply for ILR on 11/07/2020? Or do I count from date of entry (21/08/2010) which makes the earliest date I can apply 23/08/2020?
  Considering I have an application for extending my Tier 2 G pending with the HO, can I make another application for ILR simulatenously? Will the HO prioritise one over the other? Is it possible I am asked to wait to apply for ILR until I recieve a decision on the Tier 2 G application?
  My wife joined me in the UK in December 2014 as a PBS dependent. Should I process her FLR (M) as soon as I get a response on my ILR? My concern is that if the HO decides to process my ILR and cancels the Tier 2 G application, it is possible that as dependent tied to that application and visa she ill no longer have valid stay in the country and could be deemed to overstay?

My last question might seem complicated - if I'm not clear please let me know and I will try to elaborate.

Thank you to those who take the time to respond.

Appreciate your time.

N

[CR001]

Can I count date of entry clearance (09/08/2010) as start of my 10 year period which means I can apply for ILR on 11/07/2020?

No.

Or do I count from date of entry (21/08/2010) which makes the earliest date I can apply 23/08/2020?

Yes.

Considering I have an application for extending my Tier 2 G pending with the HO, can I make another application for ILR simulatenously?

Yes, it is then varying an existing application.

Will the HO prioritise one over the other?

Yes.

Is it possible I am asked to wait to apply for ILR until I recieve a decision on the Tier 2 G application?

No.

My wife joined me in the UK in December 2014 as a PBS dependent. Should I process her FLR (M) as soon as I get a response on my ILR?

You must vary her PBS Dependent application to FLR(M),meeting all the requirements (English A1, financial and adequate accommodation) when you varying your ILR application.

My concern is that if the HO decides to process my ILR and cancels the Tier 2 G application, it is possible that as dependent tied to that application and visa she ill no longer have valid stay in the country and could be deemed to overstay?

Yes. A PBS Dependent visa will be refused.

[swissman20]

CR, thank you for taking the time to respond. I have a few related questions.

Can I count date of entry clearance (09/08/2010) as start of my 10 year period which means I can apply for ILR on 11/07/2020?

No.

Thank you that is clear

Or do I count from date of entry (21/08/2010) which makes the earliest date I can apply 23/08/2020?

Yes.

Considering I have an application for extending my Tier 2 G pending with the HO, can I make another application for ILR simulatenously?

Yes, it is then varying an existing application.

When I apply for ILR will I have ot make a separate application that will eventually be tied to the existing application?

Will the HO prioritise one over the other?

Yes.

I assume they will prioritise the first application? Or can I request them to focus on the ILR? Will I get a refund for the Tier 2 G application?

Is it possible I am asked to wait to apply for ILR until I recieve a decision on the Tier 2 G application?

No.

My wife joined me in the UK in December 2014 as a PBS dependent. Should I process her FLR (M) as soon as I get a response on my ILR?

You must vary her PBS Dependent application to FLR(M),meeting all the requirements (English A1, financial and adequate accommodation) when you varying your ILR application.

I was under the assumption that whilst I can include her application as a dependant when I am extending Tier 2 G, for an ILR application, I can not do her FLR(M) together and can only do after I've got for a response for the same? Also my wife has spent 5 years (she entered on Dec '14) but because I'm applying via the 10 year route, her time spent on PBS dependant does not count to settlement, am I correct? She will only get ILR after 2 terms on FLR (M) as her time is reset? Although she will achieve 10 years before the end of the 2nd FLR (M) in Dec '24.

My concern is that if the HO decides to process my ILR and cancels the Tier 2 G application, it is possible that as dependent tied to that application and visa she ill no longer have valid stay in the country and could be deemed to overstay?

Yes. A PBS Dependent visa will be refused.

[CR001]

Considering I have an application for extending my Tier 2 G pending with the HO, can I make another application for ILR simulatenously?

Yes, it is then varying an existing application.

When I apply for ILR will I have ot make a separate application that will eventually be tied to the existing application?

You should provide a brief cover note explaining you are varying. You have to pay the full ILR fees when you apply.

Will the HO prioritise one over the other?

Yes.

I assume they will prioritise the first application? Or can I request them to focus on the ILR? Will I get a refund for the Tier 2 G application?

HO do know the rules about varying and the online form has a question about whether you have a pending application. Also, hence stating above about a brief cover letter. They might write to you asking you which one you wish to proceed with. Your Tier 2 should get refunded yes, but bear in mind it can take many weeks.

My wife joined me in the UK in December 2014 as a PBS dependent. Should I process her FLR (M) as soon as I get a response on my ILR?

You must vary her PBS Dependent application to FLR(M),meeting all the requirements (English A1, financial and adequate accommodation) when you varying your ILR application.

I was under the assumption that whilst I can include her application as a dependant when I am extending Tier 2 G, for an ILR application, I can not do her FLR(M) together and can only do after I've got for a response for the same? Also my wife has spent 5 years (she entered on Dec '14) but because I'm applying via the 10 year route, her time spent on PBS dependant does not count to settlement, am I correct? She will only get ILR after 2 terms on FLR (M) as her time is reset? Although she will achieve 10 years before the end of the 2nd FLR (M) in Dec '24.

You can do both applications varying at the same time. Again, cover letter. Her time as PBS Dependent does not count towards ILR based on 5 years under FLR(M), so yes, she will need 2 x 2.5 year FLR(M) visas.

[swissman20]

CR001 - thank you again for your patience in responding.

As with many others, there is a possibility of redundancy in my case. I would like to know what would happen if I'm made redundant AFTER I submit an LTR to vary my existing application? Would it impact my 10 year LTR application? Based on some research online, I understood that this would be an issue with 5 year route and not on the 10 year route? Could you confirm?

Taking this a step further - if I'm made redundant after varying my application, can I work for another employer in the period that I'm awaiting a response from the HO, which could take up to 6 months? Would this new employer need to apply for a Tier 2 G visa or can they assume a positive outcome from my ILR application and employ me as a settled person?

[CR001]

As with many others, there is a possibility of redundancy in my case. I would like to know what would happen if I'm made redundant AFTER I submit an LTR to vary my existing application? Would it impact my 10 year LTR application? Based on some research online, I understood that this would be an issue with 5 year route and not on the 10 year route? Could you confirm?

Correct. 10 year ILR rules are not employer specific.

Taking this a step further - if I'm made redundant after varying my application, can I work for another employer in the period that I'm awaiting a response from the HO, which could take up to 6 months? Would this new employer need to apply for a Tier 2 G visa or can they assume a positive outcome from my ILR application and employ me as a settled person?

No you cannot. You can only work for your current tier 2 sponsor while you have an application pending with HO. You can only move to another employer once you have ILR. You are not 'settled' until your ILR has been approved and you have your ILR BRP card as proof of right to work. You also cannot apply for a 'temporary' tier 2 while you have an ILR application pending. You would then be varying your ILR back to a Tier 2. You cannot have two applications with HO at the same time.

[swissman20]

As always, thanks for being prompt and precise in your response. I will come back to you I have any follow up.

[swissman20]

Hi CR001,

Thinking through an alternate scenario and forgive my pessimistic attitude - what if I get laid off BEFORE I'm eligible to apply for the 10 year route ILR (23rd July)? Will the time I spend laid off qualify as legal and continuous stay in the UK? Will the HO decline my variation of existing application because I'm not employed any longer and the previous application for Tier 2 G is no longer valid?

[CR001]

Hi CR001,

Thinking through an alternate scenario and forgive my pessimistic attitude - what if I get laid off BEFORE I'm eligible to apply for the 10 year route ILR (23rd July)? Will the time I spend laid off qualify as legal and continuous stay in the UK? Will the HO decline my variation of existing application because I'm not employed any longer and the previous application for Tier 2 G is no longer valid?

As already stated, long residence ILR is NOT employer or even employment specific. If you lose your job, your visa doesn't just instantly become invalid. Only HO can cancel your visa and curtailment letters can take a while to get sent out, giving you 60 days to either make an application or leave the UK.

[swissman20]

Thanks again!

[swissman20]

Hello CR001,

I have a follow up question based on further research and would appreciate your advice in this matter.

Since I have made an application to extend my T2G visa and the HO has not been able to make a decision before my previous leave expired on 04/06/20, I am now under section 3C until a decision is made.

My question is - can I apply for ILR 28 days before the 10 year period while under section 3C? Could the HO reject my application to vary as I'm under section 3C and it does not automatically mean that I could stay in the country until 21/08. Just to be on the safe side, should I wait until the 21st of August before making my ILR application as this reduces the chances of rejection?

Appreciate your response on this.

[zimba]

As long as on the day of the decision you are within 28 days of completing your 10 year, then all is good

[swissman20]

Thank you for your response Zimba.

Apologies if I seem to be laboring on the point - It would be a different scenario if I was to wait for my T2G to get approved (scenario 2 below) and THEN apply for ILR as I will have leave to remain in the country past the 10 year anniversary. Whilst I'm on 3C (scenario 1), will the HO not argue, if I apply before the 21st of August, that it is not true that my stay in the country is certain until the 10 year anniversary date.

Let me pose 2 scenarios:

Scenario 1
1. I'm waiting response on T2G and the 23rd July (28 day before 10 year anniversary) arrives
2. I apply for super priority service on the 23rd July and go for biometrics on the 25th July
3. HO has to give a response in 2 working days and on the "date of decision" - because I'm on 3C and my status in the country, based on my earlier T2G application, can change based on any decision - rejects my applications asking me to apply after I've crossed the 10 year anniversary

Scenario 2
1. I receieve a positive decision on T2G before the 23rd July
2. I apply for super priority service on the 23rd July and go for biometrics on the 25th July
3. HO approves ILR but key difference here is, even if rejected, I have T2G as fall back

The danger for me in scenario 1 is also that I do not have a T2G visa to fall back on.

I also understand that ultimately the simple solution is for me to apply for ILR on the 21/08 so that I do not get in to any of these situations.

[zimba]

Scenario 1 cannot happen as per rules UKVI concession. Scenario 2 is simply more expensive for you. Proceed as you wish

[swissman20]

Thank you Zimba,

So as per your response, applying for LTR while having 3C leave does not have any impact to whether I apply on the 10 year anniversary or 28 days before?

[zimba]

Thank you Zimba,

So as per your response, applying for LTR while having 3C leave does not have any impact to whether I apply on the 10 year anniversary or 28 days before?

No impact

[swissman20]

Thank you moderators for your support.

Quick update on my situation. My employer is offering a redundancy package which if I choose to take will initiate a 3 month notice period. The employer has offered to keep me on gardening leave during this period as according to them they will not need to inform the HO until my last day which will be well past my 10 year anniversary on 21st August 2020.

I have a few questions:
1 - is the above true regarding the the gardening leave and not having to inform HO?
2 - irrespective of what I choose, my ILR application will not be impacted as on 10 year route I do not need to be employed for a positive decision to be made?
3 - is it true that I will need to get a new job to be able to apply for my wife on FLR (M) as we need to show the minimum income requirement? Until I get a job, she will have to wait?


Thanks in advance for your advice.

[CR001]

1. Your employer has an obligation to inform HO within 10 days AFTER your last official date of employment, so only after you have left.

2. Correct.

3. Yes, either of you need to be working and meet the financial requirements for FLR M. When does her visa expire? She must apply for FLR M before her current visa expires

[swissman20]

Thank you CR001,

3. Yes, either of you need to be working and meet the financial requirements for FLR M. When does her visa expire? She must apply for FLR M before her current visa expires

This is where things get a bit messy.

My wife and I applied for Tier 2 G renewal with current employer on the 25th of May 2020 as our Tier 2 G was expiring on the 4th of June 2020. I've since been selected for biometric reuse but in the meantime I received a response from W&S Contingency Casework Document Return stating until a decision is made, my wife and I have leave under section 3c.

What does this mean for her when I vary to ILR and eventually get ILR? Does her 3c stay continue until I can apply for her FLR M? Does changing from Tier 2 to ILR impact her 3c stay?
Should I wait for our Tier 2 G renewal to get processed so she then has valid visa as a dependent before I apply for ILR?

Thanks

[CR001]

What does this mean for her when I vary to ILR and eventually get ILR? Does her 3c stay continue until I can apply for her FLR M? Does changing from Tier 2 to ILR impact her 3c stay?

She must vary to FLR(M) if you vary to SET(LR). If she does not vary, her tier 2 dependent visa extension will be refused. Her section 3C will remain in place.

Should I wait for our Tier 2 G renewal to get processed so she then has valid visa as a dependent before I apply for ILR?

Your choice.

[swissman20]

Thank you again,

If I vary her existing application, to FLR (M), whilst I'm varying to ILR (i.e. same application), I would not be able to show income knowing fully well that I'm going to leave my job subsequently. This could be seen as deceiving HO?

So the right way to do this is to vary my current application to ILR (not do anything for my wife as her 3c continues?) and when I get a new job offer, I apply for her FLR M with the new income proof. Does that sound like the reasonable way to approach this?

[swissman20]

And just to add - through the "reasonable way to approach" just stated, there is no danger of her overstaying?

[seagul]

I would not be able to show income knowing fully well that I'm going to leave my job subsequently. This could be seen as deceiving HO?

If she been working then can use her income to meet the financial requirement for FLRM or if you have cash savings of £62500 then may use it instead.

[swissman20]

Thank you Seagull - no to both. She is not employed and we don't have £62500 in savings. Seems like the best way out is for me to get a job and then sponsor her FLR M under the assumption that her 3c stay is valid during this period and she is not overstaying.

[swissman20]

What does this mean for her when I vary to ILR and eventually get ILR? Does her 3c stay continue until I can apply for her FLR M? Does changing from Tier 2 to ILR impact her 3c stay?

She must vary to FLR(M) if you vary to SET(LR). If she does not vary, her tier 2 dependent visa extension will be refused. Her section 3C will remain in place.

Should I wait for our Tier 2 G renewal to get processed so she then has valid visa as a dependent before I apply for ILR?

Your choice.

Hi dear members, I just wanted to revisit the responses so far to suggest the way forward and to get your thoughts and suggestions:
1) It is likely I will be made redundant but I have asked my employer to keep me on gardening leave until the end of August so that on the 10th year anniv (21/8) when I make my SET(LR) application I'm still employed. I know this is not a requirement as has been mentioned a number of times, 10 year ILR is not impacted by having a job for the forseeable future but this me just playing safe
2) When I vary my application - for my dependant wife I am unable to apply for her FLR (M) because I do not have combined income of £18,600 to show as I'm being made redundant
3) My wife will remain on Section 3C as advised above and I make an FLR(M) when I get a new job (which will be up to 6 months from now depending on the job market and the speed with which ILR is processed) which should then be processed for her

I want to make sure that my wife is not seen as overstaying in the interim fromwhen I vary to SET (LR) on the 21st of August and until I apply for her FLR(M) once I get a job. Please advise.