Regarding continuous residency for ILR for PBS

[RajeevP]

Hello All,

I wouldn't like to apply ILR for my wife and son who is currently having PBS dependent visa. I have received my ILR in 2019 based on Tier-2 PBS and my wife came to U.K. in June 2014( 15th June 2014). She had extension twice as follows and her out of country situations is as follows:

1st U.K. Entry Visa Issues- 05/06/2014 and valid for Feb 2016 and Entered in U.K. 15/06/2014
2nd PBS extension 15/01/2016-11/02/2019
3rd PBS Extension 31/01/2019-30/01/2022

Out of the country as follows:
01/08/2014-03/08/2014- Paris
28/03/2015-04/09/2015-India
08/07/2016-21/05/2017- India due to Pregnancy and complications during our 1st baby boy delivery. There was an operation which cause some complications and travelled now allowed for 6 months.
21/10/2017-03/01/2018- India
08/03/2019-03/04/2019-India Holiday
21/02/2020-02/07/2021- India after our 2nd baby born in U.K and she went there to stay for 1/2 months but stuck due to Covid and travel banned and lockdown.

So considering above dates we had extended 3rd time so that she can complete her 5 years and we were suppose to apply in 2020 but we didn’t.

We are calculating her 5 years stay from 15/01/2017 to 15/01/2022 but this this period two times she went to India for more than 180 days. One due to pregnancy and complications and 2nd due to Covid so we would like some help and advise whether we can apply for ILR and can be Covid restrictions and travel banned will be consider to waive the 180 days or not?

So if any one can review our case and advise then it will be really helpful. Thanks

Regards
Rajeev

[zimba]

PBS dependants do NOT have any absence limits during a visa period if issued before 11 Jan 2018. In this case, only absences after the grant of the last extension matter, so after 31/01/2019. Absences before that date are not considered at all. This period 21/02/2021-02/07/2021 is less than 6 months. She is ok to apply for ILR

[RajeevP]

Hi Zumba,
Thanks for your reply. So her absence after 30th Jan 2019 is 28 days in 2019.

Also she was absence from 21/02/2020-02/07/2021 which is more than 1.5 years but you said less than 6 months. So is there any exemptions or not consider any absence during Covid period for 1 year or more than that? I am not sure why you are saying her absence is less than 6 months where she had more so can you please reply. Thanks

[zimba]

Hi Zumba,
Thanks for your reply. So her absence after 30th Jan 2019 is 28 days in 2019.

Also she was absence from 21/02/2020-02/07/2021 which is more than 1.5 years but you said less than 6 months. So is there any exemptions or not consider any absence during Covid period for 1 year or more than that? I am not sure why you are saying her absence is less than 6 months where she had more so can you please reply. Thanks

oh my bad 21/02/2020-02/07/2021. In that case, she will face issues with ILR. It is very unlikely you can argue for any form of discretion

[RajeevP]

So do you know if there is any relaxations during the the Covid abs Pandemic because there was a travel banned, locked down, flights were not operating so I am sure there can be argue on this isn’t?

What is the best to approach. We had a multiple tickets cancellations so can we apply for ILR and provide supporting docs. The cost of ILR and fees is very high and I have to apply for my son as well as wife so I am little bit worry.

Regards

[zimba]

The UK never had border closures and travel was always possible via third countries. Also since March 2020, she could have returned for example in the summer of 2020 when there were many flights. Many claims of not being able to return are not really valid. You are very unlikely to be able to argue that she could not possibly return for 1.5 years. There are COVID related discretions in place but your claims must be reasonable. Arguing that returning was inconvenient or difficult may not work

[RajeevP]

Thanks Zimba,
We were in India with all the family and there was a second lockdown so whenever we were planning to come there was an issues. Also I had Covid positive in June which stopped me travelling and kept me in isolation as well. Then there was second wave in U.K. were started after NOV/Dec in U.K. and flights were not operating normally and then India had another 3rd wave there so with all the things were just on start and stop.

Is there any things we can present on medical grounds to support our applications.

[zimba]

You can try but UKVI may or may not exercise discretion

[vinny]

Provide evidence that travel was impossible due to the pandemic.

[RajeevP]

Hello Vinny and Zimba,
I hope you guys are fine and doing well. I need some further help and advise on following in our case for my wife and son ILR:
1) We have medical certificates from doctors who has issues a letter for my wife and son to confirm about their treatments and bed rest during their absence which stops us from travelling so can you advise if this sufficient to present?

2) The 180 days applied on leave grants after 11th Jan 2018 so I want to know how this will be work in our case as my wife visa entry and issues is as follows:

Visa Issues on 06/06/2014 to 11/02/2016
and Entry in U.K 15/06/2016
1st PBS Dependent visa Extension 15/01/2016 to 11/02/2019 ( 3 year)
2nd PBS Dependent VIsa Extension 30/01/2019 to 30/01/2022( 3 year)

My Son visa details, Visa Issue date- 15/05/2017 to 11/02/2019 and arrival to U.K. 21/05/2017
1st PBS Dependent 30/01/2019 to 30/01/2022

My wife absence is as follows since 2014 to till date as follows:

01/08/2014-03/08/2014- 2 days to Paris
28/03/2015- 04/09/2015-156 days to India
08/07/2016-21/05/2017- 279 days to India ( about 10 months)for pregnancy
21/10/2017- 02/01/2018- 70 days to India
08/03/2019-03/04/2019- 24 days to India

21/02/2020-02/07/2021- About 490 days to India and stuck there due to Covid, lock down travel restrictions and medical grounds.

So my queries is about 180 days leave period and absence for my wife as she had PBS since 2014 and she is on extension twice so now we are doing her ILR so can you please advise if 180 days absence is still an issues for her if we apply or because she had her 1st PBS dependent in 2014 and 1st extension in 2016 and 2nd Extension in 2019
We are exempted for this 180 days as PBS dependent and also her visa started before 11th Jan 2018?

Thanks

[zimba]

PBS dependants do NOT have any absence limits during a visa period if issued before 11 Jan 2018. In this case, only absences after the grant of the last extension matter, so after 31/01/2019. Absences before that date are not considered at all. This period 21/02/2021-02/07/2021 is less than 6 months. She is ok to apply for ILR

I already told you this above. This applies only to your spouse as children do NOT have a residence requirement at all. They get ILR when both parents get ILR. I also cannot tell you if UKVI accepts the medical evidence of not

[RajeevP]

Thanks for your reply.
So if She has got extension in 2019 but there will be absence for than than 180 days so in that case can we not start counting 5 years residency based on original entry and 1st extension from June 2014 to June 2019? Is that work..

The 1st PBS Dependent entry was made in 06/06/2014 so can we not count the 5 years residency from this date instead of 2nd extension?

Thanks for your help and advise.

[zimba]

THis has nothing to do with the qualifying period for ILR. You can count it from the first issue date in 2014 BUT only absences after the last extension in 2019 should be declared. Absences before that are ignored

[RajeevP]

Hello Zimba,
Do you recommend some kinds of cover letter format which we can use for absence during the covid?

Regards,

[AmazonianX]

Hello Zimba,
Do you recommend some kinds of cover letter format which we can use for absence during the covid?

Regards,

There is no cover letter format that can be recommended.
A cover letter is a simple written statement of certain situation or circumstances that applicants and or sponsor believes needs further clarification. It should be a reflection of your situation or circumstance so a format won't work.

[RajeevP]

Hello,
Ok I will draft something by my self. I have another queries about PBS Dependent absence limit before 11th Jan 2018, is that applicable to Tier 2 General or only to Tier 1 and their dependant. As I have seen the UJVI docs and it says for

Tier 1 Entrepreneur and Tier 1 Investor dependant partners

so can you please clarify. Thanks

[ywlgy]

Hello,
Ok I will draft something by my self. I have another queries about PBS Dependent absence limit before 11th Jan 2018, is that applicable to Tier 2 General or only to Tier 1 and their dependant. As I have seen the UJVI docs and it says for

Tier 1 Entrepreneur and Tier 1 Investor dependant partners

so can you please clarify. Thanks

CR 3.2. Where a dependant partner was absent during a period of permission granted before 11 January 2018, that period of absence will not be counted towards the 180-day limit when calculating the dependant applicant’s continuous residence period if the person on whom they were dependant (the main applicant) was on one of the following routes:
(a) Tier 1; or
(b) Tier 2; or
(c) Tier 5 (Temporary Worker); or
(d) Global Talent; or
(e) Start Up; or
(f) Innovator.

[RajeevP]

Thanks for your reply. I have another queries about continuous residency, can you please advise if the our cover letter and medical certs confirming about my wife's bed rest and treatment which stops her travelling during the pandemic is enough or do I need all test reports etc as well.

Also our baby was infant at that time and during the pandemic travelling was not safe for her as well due to many reason like lock down in India and UK because of 1st & 2nd lock and 3rd down, travel disruption, flight cancellation throughout the 2020 and then our baby were infected with some infection and travelling was like life threatening and we want to cover both in our cover letter with clarification and medical reports so can you please advise if this ok or do we need to get more docs.

My office and son is apply for ILR but they went to India in Feb 2020 and they supposed to come in April and stuck there all 2020 and came back in July 2021 with me. This is big gap but this is because of pandemic even though she is in UK since June 2014. So please advise . Thanks

[vinny]

Partners of Relevant Points Based System Migrants and Appendix W Workers

319AA. (a) Relevant Points Based System migrant means a T1 (Entrepreneur) or T1 (Investor)
(b) DELETED

319E(d)(d)

(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days; and

similarly applies, as under CR 3.2.

Where a dependant partner was absent during a period of permission granted before 11 January 2018, that period of absence will not be counted towards the 180-day limit when calculating the dependant applicant’s continuous residence period if the person on whom they were dependant (the main applicant) was on one of the following routes:

• (a) Tier 1; or
• (b) Tier 2; or
• (c) Tier 5 (Temporary Worker); or
• (d) Global Talent; or
• (e) Start Up; or
• (f) Innovator.

CR 3.2. was derived from 319E(d)(d)(2) prior to the “simplication” of the rules.

[RajeevP]

Hi Vinny,
Thanks for your reply so if my dependant wife is out of the UK for more than 180 days then only we can get exemption through CR 3.2?

[RajeevP]

Hi,
Also if you can help for one more queries then it will he helpful. The detail of dates and we are trying to understand what is the day to apply:
My wife got visa entry on 06/06/2014 Valid 11/02/2015 and enter in UK ON 15/06/2014

1st T2G PBS Extension 15/01/2016- 11/02/2019. The was 3 month behind from her 5 years for ILR so we did 2nd extension 30/01/2019- 30/01/2022

So if we calculate her 5 years from beginning then 15/06/2014 to 15/06/2019 and during that period after 11th Jan 2018 she had absence only between 08/03/2019- 03/04/2019 ( 24 days)

So my queries is should we apply as per original date of entry and can apply any time now as she had already qualified( More than 7 years) and if so then can we declare her absence during 2019 or we need to calculate the reverse way from 30/01/2022 and apply 28 days before and must declare her absence which is more than 180 days in 2020-2021?

[vinny]

I think she may rely on 319E(d)(d)(2) or CR 3.2 for absences under leave granted before 11 January 2018. She may rely on the pandemic exemption, etc., for absences under leave granted from 11 January 2018. Provide as much evidence as possible for the latter exemption.

However, leave may also lapse for an absence of more than two years.

I think applicants should declare all absences. However, caseworkers may disregard some of them in line with the rules and guidance.

[RajeevP]

Hi Vinny,
I am not clear when you say 319E 2(d)(d) as this is talked about the partners of settlement but in my case my wife is T2G PBS Dependent since 2014.

Also when you say lapse of more than 2 year so she was not out of country for more than 2 years continually as she went on 21st Feb 2020 and return back to UK on 1st July 2021 ( 1.5 years).

Also I am still not clear on which day we should count for her 28days?

Is there any direct contact no to speak with you can you please help to talk at ****

[vinny]

319E(d)(d)(2) had applied to PBS dependants, including Tier 2 (General) dependants prior to the rules changes. Just a history lesson.

The two year lapse doesn’t apply if not absent for more than two years.

From the Guidance, her qualifying period started on the date of her entry clearance.

[RajeevP]

Thanks Vinny,
So if I took her entry clearance which is 15/06/2014 then she is qualified in 2019 June and If so then considering 11th Jan 2018 rule for absence then we don't need to declare about 2020/21 absence so we should add in our letter?

Also, can you please help me to guide me through application form,
I believe this is Set (o)?
Select a category in which you are applying for indefinite leave to remain- is that Skilled Worker, Tier 2 or International Sportsperson dependent or just skilled worker?
Select a category in which you are applying for indefinite leave to remain?
Also there was asking the Sponsor license number which my wife's hasn't got yet? I have my past sponsorship number but while I am giving that no its says it not showing anything in their system. Should I leave this blank or what? Thanks