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ILR dependent query (10 months gap) - ILR Success Solihull

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

skum
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Post by skum » Tue Oct 08, 2013 11:00 pm

Congratulations!

I am still thinking what to do...Whether to apply for Tier 1 dependent or FLR(M). FLR(M) is cheaper but not sure I can directly apply without becoming PBS dependent first..

vinny
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Post by vinny » Tue Oct 08, 2013 11:27 pm

Already answered.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

Sep08T1Applicant
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Post by Sep08T1Applicant » Thu Oct 10, 2013 9:23 am

Skum, thank you very much. I hope things get sorted for you as well.
I am still in a confusion when I re-read rule 319Ed(ii), I still think (even after amending the rule) this just needs recent stay as PBS dependant and you can combine your all previous stay provided if it is not broken.

vinny - one question, switching in-country will break the continuity?

I think dependants who have their most recent or current stay as PBS dependant will be eligible provided they have during their all specified period which is 5 years must:

a) be in relationship with Tier 1 migrant
b) have spent most recent part as tier 1 dependant
c) remainder of 5 years as a spouse

If in case switching to PBS dependant in-country with a valid leave before switching does not break the continuity then 5 years can be counted as continuous with most recent leave as PBS dependant, hence it is fully applicable. Just my understanding

Is this current understanding?

Please kindly shed some light

Kind regards

vinny
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Post by vinny » Thu Oct 10, 2013 9:34 am

Sep08T1Applicant wrote:vinny - one question, switching in-country will break the continuity?
Probably no.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

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Post by Sep08T1Applicant » Thu Oct 10, 2013 10:18 am

vinny wrote:
Sep08T1Applicant wrote:vinny - one question, switching in-country will break the continuity?
Probably no.
Thanks vinny for your valuable response.
If that is the case then I think skum (considering skum scenario) can apply as PBS dependant and start her most recent stay as PBS dependant. Once skum's partner (Main applicant) applies for ILR then as per 319Ed(ii) skum will be eligible (only my understanding). Please also note d(ii) doesn't say the whole 5 year period should be PBS dependant. It only requires recent or current stay as PBS dependant with lawfully 5 years continuous UK residence and in a genuine relationship (just my understanding). If I understood d(ii) correctly then it gives more flexibility in terms of amalgamating previous dependant or non-dependant leaves (Still my understanding).

Kind regards

deepg
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Post by deepg » Thu Oct 10, 2013 11:21 am

Sep08T1Applicant, mine is also similar case.

I know that your wife granted ILR, can you please clarify, is it granted because your wife have applied before 1st October ie., before the rules changes. or they considered your wife previous leave also?

which 2 years you have showed proof of documents for cohabitation? first 2 years or recent years ?

Thanks in advance.

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Post by Sep08T1Applicant » Thu Oct 10, 2013 11:54 am

deepg wrote:Sep08T1Applicant, mine is also similar case.

I know that your wife granted ILR, can you please clarify, is it granted because your wife have applied before 1st October ie., before the rules changes. or they considered your wife previous leave also?

which 2 years you have showed proof of documents for cohabitation? first 2 years or recent years ?

Thanks in advance.
Well, I did try to find out what made the case worker decide to grant ILR but unfortunately, it wasn't mentioned anywhere in the letter and there was no interaction with the case worker. I have worked out the following assumptions and it can be any one of the below or may be combinations:

My first assumption is case worker looked at my wife's second EC and amalgamate her previous dependant and non-dependant leaves as per the 319Ed(ii) rule in place before 01/10/2013. Although document were collected by the data entry/admin staff (not case worker) only for recent year and a year back - she was not very keen on having more documents. When we submitted the documents and left for biometrics and later left the premises all the time I was worried she didn't take her whole 5 years document. In short she only took recent one year prior 30/09/2013 documents (3 different document) and didn't bother to ask for more.

My second assumption probably they applied discretion based on my wife's first EC before 9th July. I actually made a cover letter and mentioned that as per 319(d)(i) my wife has already completed her 2 continuous years.

Thirdly - I have a strong feeling that we have emails from UKBA stating and mentioning about their mistakes in rule (319Ed(ii) before 01/10/2013)) and also in the email it was stated previous leave can be combined)

Although we took all the cohabitation documents since 2006 in case if they are required. Also to add, the documents collected by the admin staff were actually 1 year prior 30/09/2013 as my wife was not in the country since December 2011 till September 2012.

I hope this helps
kind regards

deepg
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Post by deepg » Thu Oct 10, 2013 12:56 pm

Thanks for detailed clarification.
My wife first entry clearance to UK is on 31/12/2008 and she stayed here until 27/08/2012 (completed more than 2 years) & second entry clearance is on 10/01/2013

Visa details are below:
UK Entry Clearance - 16-Dec-08 - 04-Nov-09
Residence Permit - 23-Sep-09 - 22-Sep-12
UK Entry Clearance - 21-Dec-12 - 03-Oct-15 (Applied from India as dependent after previous visa expired, but on the same category)

Since she has completed her 2 years stay in UK before 9th July, 2012, can we apply for ILR for her based on previous stay? or 2 years stay should be latest ? She was already granted visa as my dependent.

Thanks in advance.

skum
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Post by skum » Thu Oct 10, 2013 10:40 pm

Sep08T1Applicant wrote:
vinny wrote:
Sep08T1Applicant wrote:vinny - one question, switching in-country will break the continuity?
Probably no.
Thanks vinny for your valuable response.
If that is the case then I think skum (considering skum scenario) can apply as PBS dependant and start her most recent stay as PBS dependant. Once skum's partner (Main applicant) applies for ILR then as per 319Ed(ii) skum will be eligible (only my understanding). Please also note d(ii) doesn't say the whole 5 year period should be PBS dependant. It only requires recent or current stay as PBS dependant with lawfully 5 years continuous UK residence and in a genuine relationship (just my understanding). If I understood d(ii) correctly then it gives more flexibility in terms of amalgamating previous dependant or non-dependant leaves (Still my understanding).

Kind regards

Yes need more clarification regarding 319 E d (ii) b. I agree Sep08T1Applicant - it seems that I should be able to apply for ILR along with my husband? I have already completed five years in Uk and I I change to dependent before my husband's ILR application, I should be able to get ILR along with him.
I dont understand 319 E d (ii) c as well

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Post by Sep08T1Applicant » Thu Oct 10, 2013 11:02 pm

Hi deepg,

If you ask me this I have a really strong feeling your wife is eligible. However, it will be really difficult for anyone to comment on this as there is a definite risk involves. I was exactly in your situation and took a risk and applied but again it depends on your financial situation as I did think number of times because of the fees involved. There were number of factors as per the rule d(ii) which makes it difficult to be in dependant's application favour.

I think if you want you can try and prepare your wife's case. I will try and help you out in terms of preparing cover letter, read it and if you think you can take chance then do apply considering the fact that there will be a possibility of refusal as I assumed the same for my wife's case.

When you are planning to apply for your wife? If there is time then I will suggest you to write an email to UKBA and ask them to clarify d(ii) as it still not very clear. It will give us some more information that how the settlement policy staff interprets the rule after the amendments.

In my wife's case, I prepared a cover letter which focuses more on 319Ed(i) rather than 319Ed(ii) - I did try and draw case worker's attention on my wife's first EC as she completed more than 2 continuous years as PBS dependant and she did fulfil the requirement of d(i) although there is a break in continuity but that is after completing the requirement of d(i).

Your wife case is similar to my wife's only if your wife's application was before 01/10/2013 then you would have succesful. Now, they have amended the rule and I am only worried about the break your wife had in order to seek EC in Dec 2012 - Jan 2013 but still I think your wife's first EC should be considered.

It is all my understanding, please don't just blindly follow it but do some research, I really did try and put the facts here for you with a hope if you apply for your wife then she will get it with you. Please also go through this thread, read comments from sushdmehta and vinny (very useful).

Lastly, I would say it is totally up to you to decide and it does depend on the case worker interpretation and discretion as well of the rule.

I wish you all the best mate, I know it is difficult and very awkward situation but there is a hope and for that I am writing back to you.

Another Possibility
I think we can also explore the "Continuous leave" for 319Ed(ii) by looking at the factors which consider leave as broken. Is there any time limit to get the second EC within certain number of days? we have to find answers to these questions. Please can any seniors kindly comment?.
Last edited by Sep08T1Applicant on Thu Oct 10, 2013 11:59 pm, edited 1 time in total.

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Post by Sep08T1Applicant » Thu Oct 10, 2013 11:46 pm

skum wrote:
Sep08T1Applicant wrote:
vinny wrote:
Sep08T1Applicant wrote:vinny - one question, switching in-country will break the continuity?
Probably no.
Thanks vinny for your valuable response.
If that is the case then I think skum (considering skum scenario) can apply as PBS dependant and start her most recent stay as PBS dependant. Once skum's partner (Main applicant) applies for ILR then as per 319Ed(ii) skum will be eligible (only my understanding). Please also note d(ii) doesn't say the whole 5 year period should be PBS dependant. It only requires recent or current stay as PBS dependant with lawfully 5 years continuous UK residence and in a genuine relationship (just my understanding). If I understood d(ii) correctly then it gives more flexibility in terms of amalgamating previous dependant or non-dependant leaves (Still my understanding).

Kind regards

Yes need more clarification regarding 319 E d (ii) b. I agree Sep08T1Applicant - it seems that I should be able to apply for ILR along with my husband? I have already completed five years in Uk and I I change to dependent before my husband's ILR application, I should be able to get ILR along with him.
I dont understand 319 E d (ii) c as well
skum, I think you will be eligible based on the assumption I made earlier only if I understood the rule correctly. Ok here is a suggestion, why don't you email UKBA and try to seek clarification on 319Ed(ii) rule from 01/10/2013 including points below:

a)ask them about "continuous leave", how, why and when it is considered as broken
b)recent/current stay as PBS combining non-PBS dependant leave previously with lawful residence in a genuine relationship.

if we will be clear on these bits then we will be in a better position to decide or comment.

Again it is just my understanding and I hope this helps.
Kind regards

deepg
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Post by deepg » Fri Oct 11, 2013 9:55 am

Thanks a lot Sep08T1Applicant. I booked appointment next Friday (just one week). I took appointment for my wife as well as I didn't know about these changes initially. Only after I booked the appointment I was aware of all these rules.

Looking at the facts and discussion, I feel, it is very less chance to get my wife ILR as I am applying after 1st October. But, I will try to contact UKBA to get more clarity if I can get reply within week. May I know how to contact them?

Also, can you suggest, if my wife ILR refused what would be her status? Currently she has Tier2 ICT dependent till 3-Oct-2015.

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Post by Sep08T1Applicant » Fri Oct 11, 2013 10:56 am

Thanks a lot Sep08T1Applicant. I booked appointment next Friday (just one week). I took appointment for my wife as well as I didn't know about these changes initially. Only after I booked the appointment I was aware of all these rules.

A1: a) Wish you all the best and don't worry. If you still feel un-comfortable then cancel the appointment although it is not that easy as it requires to pay another fee if you wanted to apply alone.
b) which PEO?


Looking at the facts and discussion, I feel, it is very less chance to get my wife ILR as I am applying after 1st October. But, I will try to contact UKBA to get more clarity if I can get reply within week. May I know how to contact them?

A2: Email: SettlementOpsPolicy@homeoffice.gsi.gov.uk
I will again say if the understanding of the rule is correct then your wife is eligible for sure. I know the pain you are going through but it is worth trying. I am only worried about the fact as you are applying after 01/10/2013. Please do clearly mention in your cover letter about the d(i) - as your wife has completed more than 2 years and discuss your understanding of the rule d(ii) in place.


Also, can you suggest, if my wife ILR refused what would be her status? Currently she has Tier2 ICT dependent till 3-Oct-2015.

A3: I think her status will remain the same as it is now. I don't think that refusal will cancel your wife's current visa. You are quite safe in your case you might just get refusal (just assumed) in worst case then her current stay will be regarded as continue as it was

(Any gurus please kindly confirm if statement A3 is correct? I am trying to find reference to this statement)

I hope this helps, wish you all the best and good luck.

Kind regards

vinny
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Post by vinny » Fri Oct 11, 2013 11:19 am

A3. Correct. There are no grounds to curtail her leave, if her circumstances and purpose remain unchanged.

Moreover, if they did curtail her leave, then she will have a right of appeal.
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Post by Sep08T1Applicant » Fri Oct 11, 2013 11:37 am

Thank you so much vinny for confirming with references.

skum
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Post by skum » Fri Oct 11, 2013 12:54 pm

I have been trying to find email ID of UKBA for inquiries related to Tier 1.

Cant find email id...does anyone know the link/id?

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Post by Sep08T1Applicant » Wed Oct 16, 2013 7:26 pm

Hi deepg,

I did try to PM and inbox keep saving it in my outbox,in case you didn't get it please do let me know I will paste you here or email you.

I wish you all the best and I am hopeful that your wife will get it with you rest it depends on that day, case worker and luck with facts, just be positive, concentrate and take every single cohibition document (definitely not required but just for the safe side) with you.

Any response from UKBA yet?
Lastly, which PEO is your appointment?

Kind regards
Last edited by Sep08T1Applicant on Wed Oct 16, 2013 7:28 pm, edited 1 time in total.

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Post by Sep08T1Applicant » Wed Oct 16, 2013 7:27 pm

skum wrote:I have been trying to find email ID of UKBA for inquiries related to Tier 1.

Cant find email id...does anyone know the link/id?
skum did you find the email address? I used to send email on settlement's one, I will try and find out if I can and post it here. thanks

deepg
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Post by deepg » Wed Oct 16, 2013 7:45 pm

Thank you, I got your PM. I have booked appointment in Croydon.

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Post by Sep08T1Applicant » Fri Oct 18, 2013 11:34 am

deepg wrote:Thank you, I got your PM. I have booked appointment in Croydon.
Hi deepg,

I can't stop to see your comments, I am hopeful, do pour us with your experience :)

regards

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