ILR for PBS Dependent Lived in UK only before 23/7/2012

[drarunb]

Hi
• I am working in the UK since 7/7/2009 with a Tier 2 Visa to start with. My wife accompanied me since then. We changed together to Tier 1 visa(and wife as dependent) on 23/3/2010.
• My wife went to India for a course of 5 months from 2/12/2010 till 11/05/2011 before coming back to the UK.
• She went to India again on 24/08/2012 for maternity reasons. While in India, her Tier 1 Visa expired on 23/03/2013. I was in UK at that time and was able to extend my Tier 1 visa till 19/04/2015. We couldnot extend the visas together without a break as my wife was in India.
• Our daughter was born on 6/5/2013.
• Only then we could renew the Tier1 dependent visa for my wife and got a new visa for my daughter while in India. The surname of my wife was also changed (to spouse surname) and this required the renewal of the Indian passport. This was all done together by June 2013.

• They have come over to the UK only now in August 2014 to join me.

I would appreciate if you can clear my queries below.
o I am now due for the ILR from 7/7/2014 onwards. I was wondering if there is anyway my wife and daughter can also apply for the settlement along with me. Would you please advice me regarding this.
The Points against my wife's eligibility would be

a) Absence from the UK for 5 months from first arrival to the UK from 7/07/2009 till 23/08/2012. In between we had minor travel outside the UK (not more than 3 weeks)

b) The absence of my wife for nearly 2 years from the UK (23/08/2012 till 4/08/2014.) but after living in the UK for more than 2.5 years.

c) The break in the continuous leave from 23/03/2013 till 20/06/2013 (3 months ) as her visa expired while she was in India. Hence not unlawful.

Regardless, she has fullfilled the requirements for the PBS dependents to apply for the ILR when initial leave was granted before 9/07/2012.
My worries would be the above points may counter her eligibility in any way.

o If this would not be possible, what are the alternatives for them. Would you advice me to go ahead and apply for the ILR or wait until the expiry of our visas? If so would the validity of the dependent visas be affected? Can they travel in and out of UK till 19th April 2015 when their Tier 1 visa expires.
o How long they would have to wait till ILR application is possible. Would they have to wait for another 5 years with FLR applications?
o If my wife is not eligible, would my daughter be eligible now for ILR as my wife is lawfully living in the UK till April 2015? My daughter only travelled to the UK for the first time by 4/08/2014.

Any advice from the members would be much appreciated.

[Amber]

Your spouse will need to have 5 years in the UK.

[drarunb]

Hi Amber,
Thanks for the reply. But she had stayed in the UK for more than 2.5 years with the first leave to remain and entry into The UK by 7/7/2009. She fully has abided the rule 319(d)(i) . What would be the ground for her refusal?
If she cannot apply, would her current Tier 1 visa be valid (expires only by 19/4/2015) If I alone apply for ILR?
Would my daughter be eligible to apply with me in this circumstance?
Thanks again
Arun

[Obie]

(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

OP i have been looking at this the whole day, and i came to the conclusion that my colleague is right.

There is a clause in 319 that says, continuous leave. It means prior to the application, your wife should have have continuous leave.

You wife did not have continuous leave prior to the settlement application. Therefore that provision will not assist her.

[drarunb]

Dear Obie,
Thanks for reply. Again the sentence did not end there. It says continuous period, the specified period being 2 years. That means for specified period of 2 years the dependent should have continuous leave to remain.
"continuous leave as the Partner of that Relevant
Points based System Migrant, the specified period is 2 years"
Does it mention anywhere that one should have continuous leave prior to the settlement application.

[drarunb]

Dear Obie,
Thanks for reply. Again the sentence did not end there. It says continuous period, the specified period being 2 years. That means for specified period of 2 years the dependent should have continuous leave to remain.
"continuous leave as the Partner of that Relevant
Points based System Migrant, the specified period is 2 years"
Does it mention anywhere that one should have continuous leave prior to the settlement application.

[Obie]

My reading of that is, if she has continuous leave, then the specified period for her to be able to qualify for settlement is 2 years.

As i have said, there was no continuous leave, as she was away for a lengthy period when you were applying for extension.

I believe the reason why that is placed in the rules, is to prevent a situation like yours from arising.

OP we can only advise you, you are not bound by what we say.

You can make an application, and we wish you all the best.

The rules is seeking, save for in few category, to prevent dependent from qualifying in circumstances where the main applicant cannot qualify. Although in certain case, a dependent may have a case, even though they were away for more than 180 days, as they held leave to remain.

I studied this thread carefully before deciding to contribute.

I am on the side of Amber on this one.

[Amber]

Her leave expired in India, therefore, the transitional rules don't apply. New leave was granted after July 2012, therefore, new 5 year route to settlement.

[drarunb]

Hi Amber,
Are you referring to transitional arrangement for PBS migrants? It's given separately in section 3.2. I am at the moment Tier 1 visa holder.

[Amber]

I'm afraid the transitional protection doesn't apply as leave expired in India.

[drarunb]

Ok Thanks. Further to this Please would you let me know
1. Does she need to stay in the U.K. for the whole of next five years for getting her ILR?
2. If apply for the ILR alone, would my dependents visa remain valid (it is now till19/04/2015). Or do you recommend applying via FLR (m) route now?
Can my daughter apply for ILR in this situation?

[Amber]

Absences should be limited and for good reason.

Daughter will have to apply for ILR with Mother.