ILR dependent continuous cohabitation clarification

[abdc12]

Hi all,

Very confused with a recent comment (http://www.immigrationboards.com/viewtopic.php?p=398787#398787) by Vinny when he said that 'continuos' requirement has been recently added.

I have PEO appoint in first week of Jan 2013 and hence in panic. Applying under Tier 1.

Married in 2007 in UK while both were students and having been living together since. Entry clearance for Wife in Jan 2008 but as WP (1 yr 3 Mnth) then Tier 1 Gen (3 years) till may 2012, Switched to Tier 1 dependent via entry clearance in May 2012.

So wife is dependent from last 8 months but we have been cohabiting since 2007.

Rules before 9-Jul-2012 apply to us.

Q) Am i correct to assume that she need not be dependent for 2 years? In other words 8 months as dependent is fine + time as Tier1 G, 3 years?

Q) She had to switch to Tier 1 dependent out of country as per rules and hence had to go out for a month but came back on visa being granted. She came back before her Tier 1 G ran out. Will this break the continuous cohab requirement?

Q) If 2 is correct, Am i correct to assume that I need to show continuos cohabitation for 2 years but cannot include the last 8 months as she went back to India and switched from Tier 1 G to Tier 1 G dependent. However, I can show, say Jan 2010 to Jan 2012 as the continuos period of cohabitation even though at that time she was not dependent.

Help and advise much appreciated.

[abdc12]

319E d states

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years

Q) Since then implies: Continuos leave since last approval was granted prior to 9 July till ILR application date?

Q) under Rules in place before 9 July implies that they will use the following set of rules?

Pre 9th July rules:

Paragraph 319E of the Immigration Rules provides that applicants meet the following requirements in order to qualify for indefinite leave to remain:

(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.

(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who is, at the same time, being granted indefinite leave to remain as a Relevant Points Based System Migrant.

(c) The applicant must have, or have last been granted, leave as the Partner of the Relevant Points Based System Migrant who is being granted indefinite leave to remain.

(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for a period of at least 2 years.

(e) The marriage or civil partnership, or relationship similar to marriage or civil partnership, must be subsisting at the time the application is made.

(f) The applicant and the Relevant Points Based System Migrant must intend to live permanently with the other as their spouse or civil partner, unmarried or same-sex partner.

(g) The applicant must have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, with reference to paragraphs 33B to 33F of these Rules, unless the applicant is aged 65 or over at the time this application is made.

Applicants who were not initially dependents on their partner’s visa (i.e. work permit) but who later becomes a dependent can also potentially be eligible to apply for indefinite leave to remain at the same time as their partner provided they have resided in the UK with their partner lawfully for a minimum duration of two years.

Dependant partners and children under 18 may apply with the main applicant on the same form (SET (O)). If applied separately, they will have to pay a separate fee.

Please help with your advise. I can't sleep

[wpilr_nov12]

1. Which PEO are you applying at?
2. When does your current visa expire?

Also useful http://www.ukba.homeoffice.gov.uk/visas ... ependants/

[abdc12]

Thanks a lot for the response wpilr_nov12.

PEO: Sheffield
Expiry in May 2014. Given the way rules keep changing and fees are raised I am applying as soon as I am eligible in Jan 2013.

Thanks a lot for the link. I will take a printout for the PEO appointment. But it refers to 319E old rules.

My second post list the old rules under 319E. As my wife switched before 9Jul2012, I presume the old rules will apply similar to the link you have given. In that case the cohab requirement is not required to be continuous and I can show the time when we both were Tier 1 G from 2009-may 2012.

The FAQs in the site and the ILR 5yr dependent route states different things.

The FAQ under Q12 states:

This "2 year" stay in UK need not be as a "dependant" and can include "absences from UK".

The ILR 5yr Dependent post states:

This "2 year" period need not be as a "dependant" and need to be "continuous".

Firstly its confusing which one is correct and secondly the interpretation of continuos can be clarified further as its not clear and hence all my confusion and panic.

[wpilr_nov12]

Since you still have some good time left on your visa, would be worth trying for Solihull appointment

[abdc12]

Thanks a lot for the suggestion, which I will try but hoe does it help. The rules should be interpreted and applied coherently, isn't it?

Any response about my query on how the term 'continuous' is interpreted for pre July applicants?

[wpilr_nov12]

There are plenty of experience reported here highlighting Solihull first reviews your case, determines your/partners eligibility (subject to biometrics and criminality check) and then asks for payment. Cw interviews and doc reviews are in a separate area, in a very relaxed atmosphere. You would probably be more comfortable discussing 319e with the cw in such environment. Just imagine like being at a bank branch to open an account. And you wouldn't have paid anything to find out if your wife is eligible at the same time.

I think you would be in a much comfortable position at Solihull, whatever the verdict on your wife's eligibility.

If you decide to go Solihull, at UKBA booking site, go with the reschedule option and you don't have to re-enter all details again.

[abdc12]

Thanks again for the reply.

In another post you mention the following about the continuous interpretation:

Your interpretation is slightly off. It means from the time she was last granted PBS dependent visa pre 9 jul12, she should continue to remain in PBS dependent status, and in her case the residency requirement is 2 years. The 'continuous' you refer to is for the requirement of not having changed visa category from PBS dep to something else.

As per this interpretation, I think, I should be fine as this is the same case with me.

In other words: The residency period of 2 years is easily met (as we are married and living together since 2007) and she is dependent on my T1 from May2012 on a continuos basis.

This is how I plan to put it to the CW if she/he says that wife needs to be as dependent for 2 years. Also I will show the rules under 319E (pre 9jul12) that is applicable to us which requires 2 years cohabitation without the need to be dependent or continuous.

Let me know what you think about my approach.

[abdc12]

Thanks a lot wpilr_nov12 for your comments so far.

Can you please confirm if the rules 319 a-g are correct pre 9th July 2012?

Can I find the previous rules on the UKBA website as archive link?

[psTier1]

Hi all,

Very confused with a recent comment (http://www.immigrationboards.com/viewtopic.php?p=398787#398787) by Vinny when he said that 'continuos' requirement has been recently added.

I have PEO appoint in first week of Jan 2013 and hence in panic. Applying under Tier 1.

Married in 2007 in UK while both were students and having been living together since. Entry clearance for Wife in Jan 2008 but as WP (1 yr 3 Mnth) then Tier 1 Gen (3 years) till may 2012, Switched to Tier 1 dependent via entry clearance in May 2012.

So wife is dependent from last 8 months but we have been cohabiting since 2007.

Rules before 9-Jul-2012 apply to us.

Q) Am i correct to assume that she need not be dependent for 2 years? In other words 8 months as dependent is fine + time as Tier1 G, 3 years?

Q) She had to switch to Tier 1 dependent out of country as per rules and hence had to go out for a month but came back on visa being granted. She came back before her Tier 1 G ran out. Will this break the continuous cohab requirement?

Q) If 2 is correct, Am i correct to assume that I need to show continuos cohabitation for 2 years but cannot include the last 8 months as she went back to India and switched from Tier 1 G to Tier 1 G dependent. However, I can show, say Jan 2010 to Jan 2012 as the continuos period of cohabitation even though at that time she was not dependent.

Help and advise much appreciated.

Hi abcd12, Have you applied ILR with your spouse? please share your experience. Thanks

[Shekharaca81]

Hello there

My case is very similar to yours.

I have been in touch with several lawyers and the opinion is divided.

I even read a real life case on this forum, see link below.

http://www.immigrationboards.com/viewto ... hlight=319

When I cited the above case to the lawyer, she told me that the rules have changed since June 2012.

However, I have read section 319 as it stands now and it seems, that it only requires cohabitation for 2 years and not for the dependent to be on the tier 1 dependent visa for 2 years.

[abdc12]

Hi All,

Applied today afternoon and approved. I will update with details later. No questions were asked.

As a backup I wrote a comprehensive letter with supported documentation if I was asked about the questions above. I will share the contents of the letter along with the UKBA docs I referred.

@Shekharaca81: Our interpretation is correct.

Best

[abdc12]

See here for details

[blackwheels]

Hi abdc12

Congratulations.
Can you please let me know how many sets of docs did you show for the ILR cohabitation?

Thanks