ILR Refusal based on 319E sec d-ii-b

Hi all
I need some advice on my spouse's ILR refusal. He was initially on Tier 2 PBS dependent when he entered the country in Nov 2012. He has to then renew this visa in Jan 2014 because my Tier2 visa needed renewal (his expiry date was tied to mine). This new TIer2 PBS dependent was valid till Jan 2017, so he was in the UK on Tier2 PBS dependent for 4 years 2 months. I qualified for ILR by then so I rcvd my ILR in Mar 2016. Therefore when he applied for a new visa in Jan 2017, he applied as spouse of a settled person. This visa started on Mar 2017 and is valid till Sep 2019.
By dec 2017 he completed 5 years on relevant categories (as per our judgement) and qualified for ILR. In Feb 2018 he applied for ILR as spouse of settle person.
The HO rejected the application under 319E, sec d-ii-b.

The sec states:
(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e),


They clarified in a phone conversation that this applies because when he switched from Tier2 PBS dependent to spouse visa, his 5yr clock towards ILR was reset. Therefore it is now counting down towards 5 yrs from Mar 2017. Upon stating that this info was not categorically stated anywhere in the website, they said we should have taken immi advise when applying for his spouse visa.

The advise I need:
1) Does it state anywhere in the gov.uk website that changing from dependent to spouse visa, the ILR clock is reset? I thought both the visas counted towards permanent residency.
2) Would it not have been an untruthful application on his part if he still applied as Tier2 dependent while I was on ILR?
3) What are my possible forward paths - should I submit an admin review? appeal?

Thanks for your time in advance!

1. You need 5 years residence as a PBS dependent OR 5 years residence on a spouse visa. He should have extended PBS Dependent visa and not switched visa category as you cannot combine different categories to make up 5 years. See link below.

2. No, the rules allow PBS Dependents to continue as PBS Dependents when their partner have gained ILR as a PBS migrant.

3. The refusal is correct, he will need to wait 5 years on spouse settlement visa to qualify for ILR or apply based on long residence in 2022 if that is sooner.

immigration-for-family-members/dependan ... 14832.html

Which ILR form did he complete, Set(O) or Set(M)?

Thanks CR001. He applied with Set(o).
I have now found the wording in the appropriate document (https://www.gov.uk/government/publicati ... rs-1-2-4-5) that states that he could have applied on Tier2 PBS dependent even though I moved on to ILR, but how does one get to this doc?
If i am the applicant today, and I want to renew my Tier2 PBS visa and i go to the gov.uk website and go through the click-through process to find the eligibility or appropriate doc, then I get to:

Visas >> Family visas (apply, extend or switch) >> Apply as a partner or spouse

Since I am already in the UK, so i am taken to this link for application:
https://visas-immigration.service.gov.u ... ily-routes

Till now in the click through process I didnot get an option to choose that I am currently on Tier2 PBS and can continue on this category. So it seems difficult for an applicant to know that continuing to use Tier2 PBS is even an option, unless he/she already knows about it and makes a search for that particular application form on the UKBA website. What is your feedback on this?

Thanks again!

If i am the applicant today, and I want to renew my Tier2 PBS visa and i go to the gov.uk website and go through the click-through process to find the eligibility or appropriate doc, then I get to:

Visas >> Family visas (apply, extend or switch) >> Apply as a partner or spouse

Not sure what link you are referring to as you have not posted the actual link, but it would be 'work, tier 2, dependent partner' or something along those lines.

However, from the Tier 2 Family Members page, see the links below.

https://www.gov.uk/tier-2-general/family-members

Dependants applying in the UK on their own
Your dependants can apply to extend or switch their visas to stay with you if they’re already in the UK.

Your family members can apply online if they’re your:

partner
child
They can also ask to use the priority service.

You can get a same-day decision at a premium service centre.

It’s best for your dependants to apply at the same time as you but they can apply at a later date.

Which takes you to this one below.

https://visas-immigration.service.gov.u ... nt-partner

However, that is all moot now as you have already switched to FLR(M).

Unfortunate that you made a mistake in the application. You are not the first and you are possibly not going to be the last.

I agree this is a confusing route.

Interestingly, I believe your partner can still apply for a PBS dependant visa now (or on expiry of the current visa).

And once that visa is granted, can apply for ILR based on the PBS 5 year route the next day (since the clock effectively gets restored).

This is because the immigration rules state:


(c) The applicant must have, or have last been granted, leave as the partner of the Relevant Points Based System Migrant who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant; This will be true once he switched back to PBS dependant

(d) The applicant and the Relevant Points Based System Migrant 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 the applicable specified period in either (i) or (ii), subject to (iii):
(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 This allows the rest of the 5 year to be a dependant in any category.

In the first place, go for an AR explaining it was an error to switch because of all the reasons you stated. Explain that this possibility is there and it is just creating more work for HO and expenses for yourself to do this but has the same end result.

Not likely to succeed but worth trying nevertheless.

@ CR001 - the issue was that since I was NOT on Tier2 anymore when he was renewing his visa, so we didnot go to any pages related to that. We thought the correct path would be to use whatever options come under spouse of a settle person.

@marcnath - very interesting point you are making below. I think a couple of points I would seek clarification on will be: 1) Is it possible for him to apply for Tier2 PBS dependent now or does he need to wait till current visa is finished? 2) If he CAN change now, will the clock continue counting previous dependent visa + spouse visa? Or will it just count dependent visa only?

I am now a become a British citizen, and I think the optimum route will be for him to apply for ILR based on long residency next year in Sept (since he will complete about 10 yrs). Any final thoughts on this?

radish2018 wrote: ↑

Wed Jun 20, 2018 2:48 pm

@ CR001 - the issue was that since I was NOT on Tier2 anymore when he was renewing his visa, so we didnot go to any pages related to that. We thought the correct path would be to use whatever options come under spouse of a settle person.

Agree that is quite the logical way to go.

HO systems should be smarter to recognise that -- but .....

radish2018 wrote: ↑

Wed Jun 20, 2018 2:48 pm

@marcnath - very interesting point you are making below. I think a couple of points I would seek clarification on will be: 1) Is it possible for him to apply for Tier2 PBS dependent now or does he need to wait till current visa is finished?

I have not seen anything that would prevent him from applying for a PBS dependant now.

radish2018 wrote: ↑

Wed Jun 20, 2018 2:48 pm

2) If he CAN change now, will the clock continue counting previous dependent visa + spouse visa? Or will it just count dependent visa only?

As explained above, that seems to be quite clear. The conditions for 5 yr PBS Dependant ILR are:
1) Should be a PBS dependant at the time of application
2) Should have the entire 5 years as a dependant of the same person in any category

radish2018 wrote: ↑

Wed Jun 20, 2018 2:48 pm

I am now a become a British citizen, and I think the optimum route will be for him to apply for ILR based on long residency next year in Sept (since he will complete about 10 yrs). Any final thoughts on this?

If there is no urgency, then possibly the safest. You will have to pay only ILR(LR) fees rather than PBS dependant + ILR fees