Elgibility to apply for ILR as dependent

[migrant_uk]

Posting on behalf of a friend who has been granted ILR on 04-01-2021 (Global Talent accelerated route), please see the details below for his wife's immigration history

-15th March 2014 Entered the UK on Tier 2 dependent visa from 06/03/2014 – 28/02/2017
- Switched to Tier 4 dependent and stayed on it from 22/03/2017 – 17/01/2018
- Switched to Tier 2 dependent from 18/01/2018 – 21/07/2020
- Switched to Tier 1 Global Talent dependent from 14/07/2020 - 14/07/2021

Is his wife already eligible for ILR? If not, when would his wife become eligible for ILR?

[zimba]

There is NO difference between the PBS dependant visas. There are NO such specific categories. 5 years spent under PBS dependant visa counts towards ILR under PBS. So she is eligible for ILR. Use SET(O)

[migrant_uk]

Thank you @Zimba. So it does not make a difference if she was on Tier 4 for a while? Because this switch had broken continuous residency for my friend and he had to complete three years and apply under the accelerated route.

[CULLINAN]

Thank you @Zimba. So it does not make a difference if she was on Tier 4 for a while? Because this switch had broken continuous residency for my friend and he had to complete three years and apply under the accelerated route.

Tier 4 or Tier 4 dependent?

[migrant_uk]

Tier 4 dependent

[CULLINAN]

There is NO difference between the PBS dependant visas. There are NO such specific categories. 5 years spent under PBS dependant visa counts towards ILR under PBS. So she is eligible for ILR. Use SET(O)

[migrant_uk]

Thank you @Cullinan and @Zimba.

[migrant_uk]

Dear IB team (including @Cullinan and @Zimba),
As per the thread above, my friend's wife applied for ILR and was unfortunately refused today, please see the reasons below. Can you please review and provide guidance on the next steps?

"You originally entered the UK as a Tier 2 Partner alongside your partner XXXXXXXXXXXXXX, with leave granted from 06 March 2014 until 20 February 2017. You were then granted further leave to remain as a Tier 4 Dependant partner from 22 March 2017 until 28 June 2018, then as a Tier 2 Dependant Partner from 18 January 2018 until 21 July 2020 and most recently as a Dependant Spouse (except paras 277-289) from 14 July 2020 until 14 July 2021. On 11 February 2021 you applied for settlement as a Tier 1 Dependant Partner.
Paragraph 319E(d) of the immigration rules states:

319E(d) The applicant and the Relevant Points Based System Migrant or Appendix W Worker must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least a continuous period of 5 years

You have applied for Settlement as a Tier 1 Dependant Partner. As you have not spent the required 5 year period as a Tier 1 Dependant you therefore do not meet the requirements of paragraph 319E(d) of the Immigration Rules. Therefore your application for Settlement is refused under paragraph 319E(d) of the Immigration Rules."

[secret.simon]

most recently as a Dependant Spouse (except paras 277-289) from 14 July 2020 until 14 July 2021.

Was that as the dependent spouse of a British citizen or an ILR holder? That may have reset her ILR counter to zero.

She would have been eligible for ILR is she had remained as a PBS dependent for five continuous years and was a PBS Dependent when she applied for ILR. By switching from a PBS Dependent to an ILR dependent, she may have reset her clock to zero.

[CR001]

most recently as a Dependant Spouse (except paras 277-289) from 14 July 2020 until 14 July 2021.

Was that as the dependent spouse of a British citizen or an ILR holder? That may have reset her ILR counter to zero.

She would have been eligible for ILR is she had remained as a PBS dependent for five continuous years and was a PBS Dependent when she applied for ILR. By switching from a PBS Dependent to an ILR dependent, she may have reset her clock to zero.

The user has stated in the first post that the main tier 1 visa holder got ilr in January this year, therefore the dependent could not have received a spouse settlement visa last year.

[migrant_uk]

Thank you @secret.simon and @CR001

She was still on Tier 1 dependent visa when applied for ILR, and PBS visa until July 2021. Their understanding, including from this forum, was that as she has nearly seven years of continuous residence as PBS dependent so should get her ILR.

Could this be a procedural error/oversight? Would it be worth applying for Administrative Review?

[migrant_uk]

I meant to say "Global Talent Visa Dependent"

[CULLINAN]

Also see:
Combining Tier 4 dependent visa for 5-Year continuous period.

[migrant_uk]

Thank you @CULLINAN

Could this be a procedural error/oversight? Would it be worth applying for Administrative Review?

[vinny]

Yes.

It may be a case working error under

AR2.11

(d) Where the original decision maker otherwise applied the Immigration Rules incorrectly; or
(e) Where the original decision maker failed to apply the Secretary of State’s relevant published policy and guidance in relation to the application.

[vinny]

Note: Changes

Interpretation.

“Permission”

“Global Talent” means the route, or a person with permission as a lead applicant on the route, under Appendix Global Talent or as a Global Talent migrant under Appendix W of the rules in force before 1 December 2020, or as a Tier 1 (Exceptional Talent) Migrant.

Decision on an application for settlement as a dependent partner or dependent child on the Global Talent route

GT 34.1. If the decision maker is satisfied all the suitability and eligibility requirements are met for settlement as a dependent partner or dependent child on the Global Talent route, the applicant will be granted settlement, otherwise the application will be refused.

GT 34.2. If the application is refused the person can apply for an Administrative Review under Appendix AR: Administrative Review.

The eligibility requirements includes meeting the

Continuous residence requirement for settlement as a dependent partner of on the Global Talent route

GT 31.1. The applicant must meet the continuous resident requirement as set out in Appendix Continuous Residence during the period in GT 30.1.

Where

Qualifying period requirement for settlement as a dependent partner on the Global Talent route

GT 30.1. The applicant must have spent a continuous period of 5 years in the UK with permission as a dependent partner of the person (P) in GT 27.1.

Where

Relationship requirement for settlement for a dependent partner or child on the Global Talent route

GT 27.1. The applicant must be the partner or child of a person (P) where one of the following applies:

• (a) P is, at the same time, being granted settlement on the Global Talent route; or
• (b) P is settled or has become a British citizen, providing P had permission on the Global Talent route when they settled and the applicant had permission as P’s partner or child at that time.

GT 27.2. The applicant must have last been granted permission as a dependent partner or dependent child of the person (P) in GT 27.1.

I don’t see a restriction in GT 30.1 to exclude the applicant’s previous permissions as P’s dependent partner, while P was under a different category?

If such exclusions exist, then they may be unreasonable because Global Talent migrants may include different categories, without resetting their continuous leave requirement for ILR, under GT 11.3.

Moreover, I think 319E

(d) The applicant and the Relevant Points Based System Migrant or Appendix W Worker must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least a continuous period of 5 years, during which the applicant must:

• (a) have been in a relationship with the same Relevant Points Based System Migrant or Appendix W Worker for this entire period,
• (b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant or Appendix W Worker, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e),
• (c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and
• (d) ....

makes their inclusions more explicit.

If the settlement rules for PBS dependent partners and Global Talent dependent partners or other former PBS or Appendix W dependent partners are now retrospectively different, then perhaps dependent partners may challenge these differences under legitimate expectations.

[vinny]

"You originally entered the UK as a Tier 2 Partner alongside your partner XXXXXXXXXXXXXX, with leave granted from 06 March 2014 until 20 February 2017. You were then granted further leave to remain as a Tier 4 Dependant partner from 22 March 2017 until 28 June 2018, then as a Tier 2 Dependant Partner from 18 January 2018 until 21 July 2020 and most recently as a Dependant Spouse (except paras 277-289) from 14 July 2020 until 14 July 2021. On 11 February 2021 you applied for settlement as a Tier 1 Dependant Partner.

Paragraph 319E(d) of the immigration rules states:

319E(d) The applicant and the Relevant Points Based System Migrant or Appendix W Worker must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least a continuous period of 5 years

You have applied for Settlement as a Tier 1 Dependant Partner. As you have not spent the required 5 year period as a Tier 1 Dependant you therefore do not meet the requirements of paragraph 319E(d) of the Immigration Rules. Therefore your application for Settlement is refused under paragraph 319E(d) of the Immigration Rules."

Assume all her extensions were made in-time? She did not spend too long periods aboard?

If the caseworker had based the refusal on failing 319E(d) due to

As you have not spent the required 5 year period as a Tier 1 Dependant

then quote 319E

(d) The applicant and the Relevant Points Based System Migrant or Appendix W Worker must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least a continuous period of 5 years, during which the applicant must:

• (a) have been in a relationship with the same Relevant Points Based System Migrant or Appendix W Worker for this entire period,
• (b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant or Appendix W Worker, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e),
• (c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and
• (d) ....

319E(d)(a) is true.
319E(d)(b) is true.
Highlight 319E(d)(c)

(c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and

Point out that the caseworker had failed to apply 319E(d)(c)?

[migrant_uk]

Thank you so much @Vinny for such a detailed response.

Yes, she applied for all extensions in time and there were no absences that would break the continuous residency. In fact, all absences are way less than 180 days limit. When she applied for ILR, choose the "Tier 1 or Appendix W dependents" option on the form.

We would prepare a draft for the Administrative Review and share it with the team here for valuable input/review.

[vinny]

319E(d)(d) is true.

Given the limited suitable application options, I believe that her choice was reasonable.

[migrant_uk]

Dear IB members, @Vinny,
Can you please review the draft from the applicant below for the Administrative Review? Please also let me know if it needs to be expanded/edited.

"My partner (main applicant) has been granted ILR on the 4th of January, 2021. We entered the UK together in 2013 and have since lived together. All my visas are with the same main applicant as PBS dependent and my current leave is also a dependent partner of XXXXXXX (main applicant). Therefore, I had completed more than 5 years as a PBS dependent and I applied for ILR as a PBS dependent using set (O). During online completion of the form, the most relevant option to choose for me was “Tier 1 or Appendix W dependents”. I selected this category and applied for Indefinite Leave to Remain as a PBS dependent.
According to paragraph 319E (d) (ii) (b), the most recent part of the 5 year period has to be as the partner of that relevant point-based system migrant (which is true in my case). Then as per 319E (d) (ii) (c), I have spent the remainder of the 5 year period, with leave as spouse partner of the same main applicant when the main applicant had leave under another category of these rules.
Therefore, I believe that this is a case working error under AR2.11 (d) and/or (e). Kindly review the case and grant ILR."

[migrant_uk]

We have a week left to file the "Administrative Review", can you please review the response above and provide guidance?

[migrant_uk]

Note: Changes

Interpretation.

“Permission”

“Global Talent” means the route, or a person with permission as a lead applicant on the route, under Appendix Global Talent or as a Global Talent migrant under Appendix W of the rules in force before 1 December 2020, or as a Tier 1 (Exceptional Talent) Migrant.

Decision on an application for settlement as a dependent partner or dependent child on the Global Talent route

GT 34.1. If the decision maker is satisfied all the suitability and eligibility requirements are met for settlement as a dependent partner or dependent child on the Global Talent route, the applicant will be granted settlement, otherwise the application will be refused.

GT 34.2. If the application is refused the person can apply for an Administrative Review under Appendix AR: Administrative Review.

The eligibility requirements includes meeting the

Continuous residence requirement for settlement as a dependent partner of on the Global Talent route

GT 31.1. The applicant must meet the continuous resident requirement as set out in Appendix Continuous Residence during the period in GT 30.1.

Where

Qualifying period requirement for settlement as a dependent partner on the Global Talent route

GT 30.1. The applicant must have spent a continuous period of 5 years in the UK with permission as a dependent partner of the person (P) in GT 27.1.

Where

Relationship requirement for settlement for a dependent partner or child on the Global Talent route

GT 27.1. The applicant must be the partner or child of a person (P) where one of the following applies:

• (a) P is, at the same time, being granted settlement on the Global Talent route; or
• (b) P is settled or has become a British citizen, providing P had permission on the Global Talent route when they settled and the applicant had permission as P’s partner or child at that time.

GT 27.2. The applicant must have last been granted permission as a dependent partner or dependent child of the person (P) in GT 27.1.

I don’t see a restriction in GT 30.1 to exclude the applicant’s previous permissions as P’s dependent partner, while P was under a different category?

If such exclusions exist, then they may be unreasonable because Global Talent migrants may include different categories, without resetting their continuous leave requirement for ILR, under GT 11.3.

Moreover, I think 319E

(d) The applicant and the Relevant Points Based System Migrant or Appendix W Worker must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least a continuous period of 5 years, during which the applicant must:

• (a) have been in a relationship with the same Relevant Points Based System Migrant or Appendix W Worker for this entire period,
• (b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant or Appendix W Worker, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e),
• (c) have spent the remainder of the 5 year period, where applicable, with leave as 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, and
• (d) ....

makes their inclusions more explicit.

If the settlement rules for PBS dependent partners and Global Talent dependent partners or other former PBS or Appendix W dependent partners are now retrospectively different, then perhaps dependent partners may challenge these differences under legitimate expectations.

@Vinny I was looking through your detailed response and wanted to point out the following in the https://assets.publishing.service.gov.u ... idence.pdf

From page 11 of the link above, it says the following,

A dependent partner can qualify for settlement if they have 5 years continuous residence with permission as a dependent partner of a person on one of the following routes:
Global Talent
• Tier 1 (Exceptional Talent)
• Innovator
• T2 Minister of Religion
• T2 Sportsperson
• Skilled Worker
• Tier 1 Migrant, other than as a Tier 1 (Graduate Entrepreneur)
• Tier 2 (General) Migrant
• T5 International Agreement Worker
(Private Servants in a Diplomatic Household)


Does it mean that the previous time on PBS does not count towards ILR as a dependant under the Global Talent route?

OR

We can file an Administrative Review under 319E(d)(c)?

[vinny]

A dependent partner can qualify for settlement if they have 5 years continuous residence with permission as a dependent partner of a person on one of the following routes:
Global Talent
• Tier 1 (Exceptional Talent)
• Innovator
• T2 Minister of Religion
• T2 Sportsperson
• Skilled Worker
• Tier 1 Migrant, other than as a Tier 1 (Graduate Entrepreneur)
• Tier 2 (General) Migrant
• T5 International Agreement Worker
(Private Servants in a Diplomatic Household)

I think rules specifies: to be eligible for ILR, the dependant must currently be a dependant of a person who is applying for, or has, or had, ILR, under the above routes and must have at least 5-years continuous residence leave as a dependant of this person.

The above Guidance should be consistent with the rules.

There isn’t a 319E(d)(ii)?

Perhaps you may conclude in the AR along these lines: Regarding the continuous leave requirements for ILR, there is nothing in the PBS or Global Talent Migrant’s dependant rules to exclude periods of the dependant’s previous leave as the main Migrant’s dependant, while the main Migrant was under a different category. 319E(d)(c) makes their inclusions explicit.

[migrant_uk]

What is except paras 277-289? The caseworker mentioned that but do not know what does it means

"most recently as a Dependant Spouse (except paras 277-289) from 14 July 2020 until 14 July 2021"

[vinny]

277-289 are the old spouse/civil partner of settled/British person rules. They were replaced by new rules in Appendix FM, subject to transitional provisions. They do not apply to you. Most recently, you were under the Family members of Relevant Points Based System Migrants and Appendix W Workers rules of Part 8.