ILR 180 days condition not met.Apply or extend Tier 2?

[razzledazzle16]

Hello,

I had to create a new account since I couldnt reset my password for some reason so my previous post history wouldnt be available. My situation is a bit peculiar and I had a chat with a lawyer on this subject as well but I would like to get your views regarding my queries. sorry for the long post.

I have an ILR through the Tier 2 general route. My wife was due to complete her 5 years as Tier 2 PBS dependant this year- visa expiring 7th March 2021. In 2019, a few months into her pregnancy we had planned for a 1 month holiday to India (pre booked return tickets-fly end of Oct2019 ,return end of Nov2019). However, due to a complication in the pregnancy she started experiencing pain while she was in India and was advised by the doctor to avoid flying back and take complete bedrest. So, I came back to the UK alone and had showed the reports to our GP who agreed with the diagnosis and gave a sick note since her company was requesting one to put her on sick leave and subsequently on maternity leave.

My baby was due in mid May but born prematurely in early April and since flights to India got shut due to covid, I could fly back to see the family only by the end of May. Due to municipal offices being shut down/staff shortages/ pending registrations meant that we got the birth certificate in September. Following that it took a few weeks to get the passport and then a few weeks to get the visa following which my wife and baby returned back to the UK in November 2020. I returned in Oct to complete the 14 day quarantine befor they arrived.

So, her <180 days outside the country criteria for ILR has exceeded to a year. The rules suggest maternity reason is not considered exceptional, however, ours was due to a medical issue (agreed by the GP) and if not for the pandemic we wouldnt have had administrative delays after the baby was born and could have returned back much quicker. Medical complications and a pandemic is not what anyone plans for! The lawyer suggested that as per the rules we default the criteria but if we want to take the chance to apply for it, we could and the decision would largely be based on how convincing our argument is to the case worker. Its a 3k£ gamble! I therefore have the following questions:

1) Should I apply for ILR in the above circumstances?

2) My baby's visa is tied to that of her mother. If we do apply for her ILR in the priority service does the baby apply on the same application? If not, then if her application gets delayed for some reason, what about the baby's visa?It expires a week after my wife's visa. So do I need to then renew the baby's Tier 2 visa separately?

3) I am inclined to take the safer route and apply for extension under Tier 2 for both wife/baby rather than gamble ILR. Now its called as skilled worker visa but can I still apply for extension under this visa? I have left the company that had previously sponsored me so want to confirm if the CoS details are valid for their extension? If not, what category can I apply under?

4) My wife gave the ESOL SELT A1 test previously for english language requirements since it was easier than the whole naric degree conversion process. Is that test still valid for the Tier 2 extension ?

[CULLINAN]

For history see:

uk-tier-2-employer-sponsored-visas/spou ... 06715.html

[CULLINAN]

https://assets.publishing.service.gov.u ... PRINT_.pdf

Page 505

CR 2.3. When calculating the 180 days in CR 2.1. or CR 2.2. any period spent outside the UK will not count towards the 180-day limit if the absence was for any of the following reasons:
(a) the applicant was assisting with a national or international humanitarian or environmental crisis overseas, providing if on a sponsored route their sponsor agreed to the absence for that purpose; or
(b) travel disruption due to natural disaster, military conflict or pandemic; or
(c) compelling and compassionate personal circumstances, such as the life-threatening
illness of the applicant, or life-threatening illness or death of a close family member;

[razzledazzle16]

For history see:

uk-tier-2-employer-sponsored-visas/spou ... 06715.html

Hi Cullinan,
You are right, that post was by myself. Just wanted to confirm if CR001's suggestion of extending Tier 2 is still valid under the skilled worker category?

Page 505 of the guideline: (b) travel disruption due to natural disaster, military conflict or pandemic; or
(c) compelling and compassionate personal circumstances, such as the life-threatening
illness of the applicant, or life-threatening illness or death of a close family member;

Would our situation be covered by the above points if I want to apply for ILR ?

[CULLINAN]

I believe your wife would be covered by the pandemic situation since she travelled before March 2020 and got stuck due to pandemic. It is understandable that the child birth could not have registered on time and mother could not return to UK due to the pandemic/flights closures etc. I believe you have a strong case if you can provide evidence and clarify in a cover letter.

[razzledazzle16]

Thanks Cullinan.

If I do apply for ILR for my wife, what about my baby's visa? Do I apply for extension of Tier 2 for the baby till the ILR decision comes through?

I was aiming to apply for priority service to get clarity on the ILR decision quickly. However, I read in one of the posts that priority services for ILR were suspended due to the pandemic. So, if we apply through the standard service and it takes months to get a decision and it turns out negative then would we get a few weeks to apply for extension?

Since the Tier 2 visa for baby was tied to that of my wife, I am just wondering how that situation changes if ILR decision takes time.

[CULLINAN]

SP is open for SET(O). You can apply ILR for the baby with your wife.
https://www.gov.uk/faster-decision-visa-settlement

[razzledazzle16]

Thanks. We will apply for ILR and update this thread on the decision.

[CULLINAN]

Thanks. We will apply for ILR and update this thread on the decision.

Make sure you provide all the details in a cover letter accompanied by the relevant evidence for compelling reasons i.e. complications with pregnancy and pandemic both. Also add the above stated provisions in the cover letter. Good luck. I believe you will be okay as your case stands.

[razzledazzle16]

Hi Cullinan,
How is the "year " counted in the 180 day absence context? For eg: If we apply on the 1st March 2021 is the year calculated back from that date? Because that would put Jan/ Feb into the previous year's holiday which benefits us.

Also, when I applied for ILR, I got a letter from my employer detailing that the absences taken were part of my holiday entitlement. Would my wife need somethin similar from her employer? Or PBS dependent don't need to give that.

[CULLINAN]

PBS dependents only have absence limits (180 days on rolling basis) on any leave that was granted after 11th Jan 2018.

You will calculate 5 continuous years counting backwards from date of application.

PBS dependent do not have any income requirements.

[razzledazzle16]

To update this topic: My wife and baby have got the ILR ! . We applied on a priority application and got the result within 7 working days.

Thank you to the mods of this forum for all the advise.

[inboxdarpan1]

To update this topic: My wife and baby have got the ILR ! . We applied on a priority application and got the result within 7 working days.

Thank you to the mods of this forum for all the advise.

Thank you so much for the update. Otherwise, we would never know how it turned out.