Dependent ILR qualifying period gap

[sponty]

Hi all,

I'm seeking some advice regarding the best approach for an ILR visa application for my wife.
I have an ILR granted in January 2021, I was previously on a Tier 2 (Shortage Occupation) General Visa, and she was my dependent, and has been here in the UK and has had a visa extension previously which is due to expire in a couple of months.

Here are some of the dates worth mentioning:

• First visa issued: 19/12/2016
• First entry to UK: 27/12/2016
• Current visa expiry: 19/10/2021
• Completion of 5 year period from Date of Entry: 27/12/2021
• Earliest possible ILR application date: 29/11/2021 ? (Calculated as date of the 5 year qualifying period minus 28 days (27/12/2021 - 28 days)

Her current leave to remain type is PBS dependent (Tier 2 General) and I had my ILR granted this year on January 13th 2021.
As her current visa expires on 19/10/2021 and the earliest she can apply for the ILR as calculated above is 29/11/2021, that leaves a gap of about 41 days.

I have searched the forums to find similar cases, and seen that people have been advised to apply for an extension, and then vary the application to an ILR application.

My questions are:

1. As I have ILR now, what route should I be applying for her extension under, would it be the last visa I have before I was granted ILR, i.e. Tier 2 (shortage occupation) PBS Dependent ?
2. Once the extension is applied, i.e. 3 years paying the IHS surcharge and the visa application fees that are applicable, should I be delaying the biometrics until the last date I can get, and apply for ILR before or after the biometrics?
3. Is there an English language requirement that needs to be met for the ILR or the extension application given that she has permission to stay in the UK and may have met that requirement in the previous permission - she has a GCSE O Levels, and a Bachelors and Masters Degree taught in English from Pakistan.
4. As she has been living here in the UK for the past 12 months, there aren't any requirements for any maintenance funds ?
5. If I opt to vary the application to an ILR given that it is possible, do I have to mention the previous application?
6. We had a child after my ILR, so he is a British citizen by birth as I can understand, do I need to mention that anywhere on the application ?

Any help and advice regarding this would be really appreciated!

[zimba]

First of all her 5 years starts from the initial visa issue date NOT the entry date. Simply apply for ILR before visa expiry and book an appointment for a day within 28 days. She needs to pass an SELT English test at B1. There is no maintenance requirement for ILR. Your child is British at birth and does not need to be mentioned at all.

[sponty]

Thanks for the prompt reply and clarification on the qualifying period starting from the visa issue date, and not the entry date.

That marks her 5 years at 19/12/2021. Now her visa is valid until 19/10/2021, so the earliest she can apply for ILR is 21/12/2021 (19/12/2021 - 28 days). Now that's not possible as the visa expires on 19/10/2021, so she'll have to submit the ILR application on 18/10/2021 (1 day before expiry).

It will put the date of application to be 34 days before the Date that is 5 years - 28 days.

Now that's fine as you mentioned, If we are able to delay the biometrics appointment for document submission using SopaSteria, I think we can book 28 days in advance using them. So will it be fine for us to not book any appointment until the date that will make her qualify-able for the 5 year - 28 day period, i.e. booking her appointment on or after 21/11/2021.

I have looked up the guidance and found the following in this document calculating-continuous-period-v22:

Applicants can submit a settlement application up to 28 days before they would
reach the end of the specified period. You must calculate the relevant qualifying period by counting backward from
whichever of the following is most beneficial to the applicant:
• the date of application
• the date of decision
• any date up to 28 days after the date of application

So as I understand, if the caseworker looks at this when the bio-metrics and documents are submitted, they'll consider the qualifying period from the Date of Decision as that would be most beneficial in this case?

Is there anything else I need to consider or account for, add any additional details. I have a small child, and I can't risk a refusal for the Mrs visa.

Sorry for being pedantic on this!

[zimba]

Yes, the date of the decision will be used. Note that this is not simply some sort of concession from the caseworker. When she applies before visa expiry, she will have section 3C after her visa expires, meaning that her visa will be automatically extended until a decision is made on her application. So she keeps accruing lawful stay and that is why on the day of the decision she ends up with the min required lawful stay for ILR

[sponty]

Hi,

Many thanks for the guidance earlier, just wanted to double check, in the ILR application for this question:

When did you first enter the UK?
(Required)
This is the date you entered the UK when the period of stay you are basing this application on started.

Should I put 19/12/2016 - Date when first entry clearance was granted
or 27/12/2016 - when she first physically entered the UK.

Many thanks,

[zimba]

The date you entered

[sponty]

ThankYou!