PBS Dependent Extension or a New Visa

Hi

I am on Tier 1 Entrepreneur visa since Sept 2014. I and family (spouse and an under 18 child) came to UK in 2014, my family left UK in Jan 2016. Our first term expired on 8 Jan 2018. I applied extension here within UK and got on 30/05/2018, later I traveled to Pakistan and applied family extension from Pakistan, which they got on 6 July 2018 and then on 24 July 2018 we all traveled to UK and living here since then.

The question is that the Home Office will consider the visa granted on 6 July 2018 for my family as the continuation from 2014 keeping in view the previous rule of absence,or this will be considered from July 2018 as a new visa.

Please confirm

Athar Ali

Subject to 245AAA(a)(ii), etc.

Hi

Thank you very much for your reference. However, the point is not clear. My and family visa of the initial term was expired on 8/01/2018 when they were in Pakistan and I was in the UK. I applied extension on 01/08/2018 and got on 30/05/2018 (Leave to Remain valid till 30/05/2020). I then traveled to Pakistan and applied the visa for family, which they got on 06/07/2018 (Leave to Enter valid till 30/05/2020). We all then travel to UK on 24/08/2018.

The question is that, their current visa is an extension to the initial term or it is a new visa because they applied from Pakistan and they were in Pakistan when initial term was expired on 08/01/2018 keeping in the fact into consideration that My current visa is an extension till 30/05/2020).

Please clarify.

libra71pk1 wrote: ↑

Wed Feb 19, 2020 6:03 pm

Hi

Thank you very much for your reference. However, the point is not clear. My and family visa of the initial term was expired on 8/01/2018 when they were in Pakistan and I was in the UK. I applied extension on 01/08/2018 and got on 30/05/2018 (Leave to Remain valid till 30/05/2020). I then traveled to Pakistan and applied the visa for family, which they got on 06/07/2018 (Leave to Enter valid till 30/05/2020). We all then travel to UK on 24/08/2018.

The question is that, their current visa is an extension to the initial term or it is a new visa because they applied from Pakistan and they were in Pakistan when initial term was expired on 08/01/2018 keeping in the fact into consideration that My current visa is an extension till 30/05/2020).

Please clarify.

Not sure why that matters ?

There is no definition of extension in grant of a visa. You are either granted Entry Clearance (when applying from outside UK) or Leave to Remain (when you apply within UK).

Hi

Thank you very much for the reply and confirming that Leave to Remain and Entry Clearance are the same thing, except the location from where it is granted.

My concern is simple but critical because if it is extension then my family qualify for ILR application as they have completed the 5 years since the first visa of the initial term was granted in Sept 2014, otherwise if is a new visa granted in July 2018 then they will not be qualified for ILR application with me in May 2020, but only another extension.

This is still a question if you could answer please with lots of thanks and appreciations.

Regards

Athar

There current visa is a new visa, and their clock reset to zero by applying outside the UK more than 28 days after their last visa expired.

Thank you very much for your reply and clarification.

Thanks for the clear answer. However, is there any chance to put a point for consideration that since their visa was expired on 08/01/2018 while they were in Pakistan and I was in UK and applied for extension then how it was possible for them to apply the extension within 28 days in a situation when even I was without visa and waiting for the extension here in the UK.

As soon as I got the extension in the UK, I traveled to Pakistan and applied their visa from there.

Any comment in this point please.

Thanks and Regards

Athar

I'll disagree with CR001 here.
As long as all the other conditions are met - absence, cohabitation, KoLL, etc, it does not matter whether the latest visa was a entry clearance or remain to leave.
The requirement is only that the latest visa is a PBS partner visa

Hi

I am in the first extension of the Tier-1, which will be expired in the end of May 2020. I did have a shortage of my time spent in the UK during initial term but got the extension on the basis of 200k investment and 02 employment. I Then created over 12 employment during my extension perdiod to apply ILR on 03 years basis, i.e. 0ne year from initial term and 02 years of extension.

However, recently, I came to know that my qualifying time period is having a shortage of 3 months til my visa is valid. What should I do? I am afraid about my employment claim.

Can you please confirm that if I apply extension and just claim 02 employment and once I get extension and complete my time shortage to apply ILR then can I claim the remaining 10 employment for ILR on 03 years basis? means the employment of the period of 1st extension can be claimed during the period of 2nd extension or it will be lost

Please confirm

Hi

I am going to apply for ILR on 03 years route (one year from initial term and 02 years from extension). My extension visa is valid till end of May 2020 and I am planing to apply around 15 May 2020.

I am maintaining 12 full-time employee for more than 12 months to apply on 03 years ILR route.

My question is about my child. She was under 18 when we were granted first visa in Sept 2014 and then extension in May 2018. She just lived in the UK from Nov 2014 to Dec 2015 and then again returned back to UK in July 2018 during 1st extension and celebrated her 18th birthday on 02/10/2019.

My question is about her absence period between Jan 2016-July 2018 when she was out of UK but under 18 but since July 2018 she is in the UK continuously.

Can she apply along with me ILR in May 2020 by taking the advantage of absence rule for Children?

libra71pk1 wrote: ↑

Sat Feb 22, 2020 2:26 am

Hi

I am in the first extension of the Tier-1, which will be expired in the end of May 2020. I did have a shortage of my time spent in the UK during initial term but got the extension on the basis of 200k investment and 02 employment. I Then created over 12 employment during my extension perdiod to apply ILR on 03 years basis, i.e. 0ne year from initial term and 02 years of extension.

However, recently, I came to know that my qualifying time period is having a shortage of 3 months til my visa is valid. What should I do? I am afraid about my employment claim.

Can you please confirm that if I apply extension and just claim 02 employment and once I get extension and complete my time shortage to apply ILR then can I claim the remaining 10 employment for ILR on 03 years basis? means the employment of the period of 1st extension can be claimed during the period of 2nd extension or it will be lost

Please confirm

You have two options.

1) Apply for extension as normal close the last date of you current visa. Submit biometrics close to the last eligible date, etc. If your extension is not granted before you qualify for the three year period, you can vary your extension application to the 3 year ILR application.
2) If your extension is approved, you can apply for ILR as soon as you qualify for three year AS LONG as you have the 10 jobs in the 12 months before your application date. If you have maintained the 12 jobs throughout, you would obviously qualify.

libra71pk1 wrote: ↑

Sat Feb 22, 2020 2:42 am

Hi

I am going to apply for ILR on 03 years route (one year from initial term and 02 years from extension). My extension visa is valid till end of May 2020 and I am planing to apply around 15 May 2020.

I am maintaining 12 full-time employee for more than 12 months to apply on 03 years ILR route.

My question is about my child. She was under 18 when we were granted first visa in Sept 2014 and then extension in May 2018. She just lived in the UK from Nov 2014 to Dec 2015 and then again returned back to UK in July 2018 during 1st extension and celebrated her 18th birthday on 02/10/2019.

My question is about her absence period between Jan 2016-July 2018 when she was out of UK but under 18 but since July 2018 she is in the UK continuously.

Can she apply along with me ILR in May 2020 by taking the advantage of absence rule for Children?

The absence is immaterial for children.

However, children are only eligible for ILR when both parents get their ILR, so it depends on whether your partner qualifies for ILR at the same time.

Many thanks for your reply. Please correct my understanding from your advice.

I understand that 10-12 jobs which were created in 1st extension if remain continue while waiting period for 2nd extension to the start and continuation of 2nd extension till the reach of the qualifying period to apply ILR will remain intact to claim, provided they are maintained for at least 12 months before ILR application.

In other words it is not must to create a new set of 10 jobs for 12 months separately after entering into the 2nd extension to qualify for 3 years ILR rout and the existing set of jobs will be fine to claim if they are being continued for more than 12 months till ILR application.

Please just answer YES or if it is NO then please give some more advice.

libra71pk1 wrote: ↑

Tue Feb 25, 2020 1:24 am

Many thanks for your reply. Please correct my understanding from your advice.

I understand that 10-12 jobs which were created in 1st extension if remain continue while waiting period for 2nd extension to the start and continuation of 2nd extension till the reach of the qualifying period to apply ILR will remain intact to claim, provided they are maintained for at least 12 months before ILR application.

In other words it is not must to create a new set of 10 jobs for 12 months separately after entering into the 2nd extension to qualify for 3 years ILR rout and the existing set of jobs will be fine to claim if they are being continued for more than 12 months till ILR application.

Please just answer YES or if it is NO then please give some more advice.

YES

Thank you very much. It is really very helpful to make my case.

Best Regards

Athar Ali

Hi

I and my dependent spouse and a child got initial visa on 06/09/2014 till 08/01/2018.

My family stayed for more than a year but left back on 12/12/2015 and did not return until their visa was expired on 08/01/2018 and remained in Pakistan. However, as per rules, there was no condition of absence on PBS dependents till 11/01/2018.

I applied extension on 02/08/2018 in the UK and got on 30/05/2018 (Leave to Remain valid till 30/05/2020). I then traveled to Pakistan and applied the visa for family, which they got on 06/07/2018 (Leave to Enter valid till 30/05/2020). We all then travel to UK on 24/08/2018 and since then we are in the UK permanently.

The question is that, their visa which was granted on 06/07/2018 is an extension to the initial term or it is a new visa because they applied from Pakistan and they were in Pakistan when initial term was expired on 08/01/2018.

Please keep the fact into consideration that My current visa is an extension till 30/05/2020) and they are my dependent as PBS dependents.

My understanding from the rules of 11/01/2018 is that since they are my dependents then they also got extension (not a new visa) on 06/07/2018 and from this date onward they are subject to the 180 days absent rule and no impact on their absence before this date.

Is my understating correct?

libra71pk1 wrote: ↑

Wed Mar 04, 2020 2:29 am

Hi

I and my dependent spouse and a child got initial visa on 06/09/2014 till 08/01/2018.

My family stayed for more than a year but left back on 12/12/2015 and did not return until their visa was expired on 08/01/2018 and remained in Pakistan. However, as per rules, there was no condition of absence on PBS dependents till 11/01/2018.

I applied extension on 02/08/2018 in the UK and got on 30/05/2018 (Leave to Remain valid till 30/05/2020). I then traveled to Pakistan and applied the visa for family, which they got on 06/07/2018 (Leave to Enter valid till 30/05/2020). We all then travel to UK on 24/08/2018 and since then we are in the UK permanently.

The question is that, their visa which was granted on 06/07/2018 is an extension to the initial term or it is a new visa because they applied from Pakistan and they were in Pakistan when initial term was expired on 08/01/2018.

Please keep the fact into consideration that My current visa is an extension till 30/05/2020) and they are my dependent as PBS dependents.

My understanding from the rules of 11/01/2018 is that since they are my dependents then they also got extension (not a new visa) on 06/07/2018 and from this date onward they are subject to the 180 days absent rule and no impact on their absence before this date.

Is my understating correct?

It does not matter whether it is considered an extension or new visa.

I can't see how you would meet the requirements anyway.

Section 319E(d) states:

(d) The applicant and the Relevant Points Based System Migrant or Appendix W Worker must have been living together in the UK........

Clearly you and your dependant do not meet the highlighted condition.

Hi

I think there was something unclear to you what I wrote.

I and my dependents are living together since they got Leave to Enter in July 2018 from Pakistan following to my extension (Leave to Remain) granted in May 2018.

Earlier to that we also lived together in 2014 & 2015 during initial term.

Please review my query with the above clarification and PBS dependent absence policy which was changed on 11/01/2018 in which PBS dependents were free of any absence count, and if they got extension after this date then their absence count will start from the date of their new Entry Clearance is granted.

Please consider the above facts to define that their Leave to Enter granted in July 2018 from Pakistan is a new visa or an extension granted subsequent to my extension in May 2018 in the UK.

libra71pk1 wrote: ↑

Wed Mar 04, 2020 8:34 pm

Hi

I think there was something unclear to you what I wrote.

I and my dependents are living together since they got Leave to Enter in July 2018 from Pakistan following to my extension (Leave to Remain) granted in May 2018.

Earlier to that we also lived together in 2014 & 2015 during initial term.

Please review my query with the above clarification and PBS dependent absence policy which was changed on 11/01/2018 in which PBS dependents were free of any absence count, and if they got extension after this date then their absence count will start from the date of their new Entry Clearance is granted.

Please consider the above facts to define that their Leave to Enter granted in July 2018 from Pakistan is a new visa or an extension granted subsequent to my extension in May 2018 in the UK.

The immigration rule requires both of you to have been living together IN THE UK.

Your dependant was away from 12/12/2015 and 24/08/2018, almost three years. In my opinion, it is very difficult to argue that this was living together in the UK. There clearly is no major connection to the UK during this period, so it is more likely to be interpreted as your dependent having moved back.

Absence will generally refer to short trips away. You are free to try and use the argument that the almost three years away should be considered absence, but I would not be surprised if HO would consider that as not living together in the UK.

This is my personal opinion and you may want to consult a solicitor on how the rule would be interpreted and whether there have been cases where the interpretation has been made in court.

Hi

You have highlighted a new important issue, but it is very much irrelevant in our case. Once she got the visa in July 2018 based upon my extension granted in May 2018 means it was very much established that HO had considered our relationship as partner. I even did not submit the marriage certificate or any such documents with her application again in July 2018. HO probably accessed all of our previous documents submitted during our initial application in 2014 and approved her visa (entry clearance) in July 2018 with same expiry date of mine i.e. 30/05/2020 (same for me, my wife and child).

My question is just only to know that the visa what she was granted in July 2018 a new visa or extension, it is important just to calculate her qualifying period for ILR from Sept 2014 or July 2018 under the PBS dependent absence rules and changes made on 11/01/2018.

Is there any reference or wording or code on her July 2018 visa that can indicate a new or extended visa.

libra71pk1 wrote: ↑

Wed Mar 04, 2020 9:48 pm

Hi

You have highlighted a new important issue, but it is very much irrelevant in our case. Once she got the visa in July 2018 based upon my extension granted in May 2018 means it was very much established that HO had considered our relationship as partner. I even did not submit the marriage certificate or any such documents with her application again in July 2018. HO probably accessed all of our previous documents submitted during our initial application in 2014 and approved her visa (entry clearance) in July 2018 with same expiry date of mine i.e. 30/05/2020 (same for me, my wife and child).

My question is just only to know that the visa what she was granted in July 2018 a new visa or extension, it is important just to calculate her qualifying period for ILR from Sept 2014 or July 2018 under the PBS dependent absence rules and changes made on 11/01/2018.

Is there any reference or wording or code on her July 2018 visa that can indicate a new or extended visa.

I have answered this before - there is no classification in the immigration rules called "new" or "extended". So I am not sure why you are even interested in the defining it in terms that have no relevance anywhere.
If you can point out a specific section that you have a doubt on, it would be easier to address it.

She has a PBS dependant visa - that's it.
There are two ways of getting a PBS dependant visa - as an Entry clearance (which is how she has got it twice) or as a Leave to Remain. But the actual visa that is granted by either means has no difference at all.

Actually, there is one other clause in 319E that will disqualify your dependant.

319E (d) (ii)(b), which defines continuous leave, 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.....
Between 8/1/2018 and 6/7/2018, she did not have leave as your partner. This is not absence, she just does not have continuous leave.

This is even more unambiguous.

Thank you very much for the clarification of Leave to Enter and Leave to Remain. It is very much clear now. It means absence is not an issue but continuity between two visa terms is the main problem.

If you don't be annoyed, I am sharing a real example of similar nature from one of my friend's case for your kind review. Please spare few minutes and read al of my text below.

My friend 's wife was the main applicant under Tier-1 Entrepreneur and her husband (my friend) was her dependent partner who was working out of the UK in the UAE. When their first term was expired, the main applicant was in the UK who applied extension in the UK that took 3-4 months to grant the extension. During this period her partner was out of UK without any leave, he applied his Leave to Enter from UAE after the grant of extension (Leave to Remain) to his wife/partner. Means he was without any leave during this period when main applicant was waiting for extension decision. The dependent partner was granted leave to enter in UAE without any issue or question.

In my understanding my situation seems more or less the same. Our first term was expired on 08/01/2018 when I was in the UK and my depended wife/partner was in Pakistan. I applied extension in the UK on 02/01/2018 and waited for the decision. Certainly, my partner did not have any right of traveling to UK or applying any visa until I got the extension (Leave to Remain) here because I was living here without any leave as well. My own waiting period between my application on 02/01/2018 until the grant of extension on 30/05/2018 is undefined in the papers.I got on 30/05/2018 and then I traveled to Pakistan on 10/06/2018 and applied the entry clearance for my partner and depended child from Pakistan on 28/06/2018, which was granted without any issue on 06/07/2018, we all three traveled to the UK on 24/07/2018 and they received BRP in the UK of the same validity date of mine 30/05/2020.

There is another point to support my argument that, when I was waiting for my extension decision in the UK, ( my partner got serious illness and she was under treatment in Pakistan. This situation was shared to my Case Officer in the Home Office in writing with the support of the evidence of treatment. In this letter I requested case officer to expedite my case and take the decision on my extension request as soon as possible to make me enable to travel to Pakistan and take care of my partner during her treatment. Fortunately case officer took immediate action and granted me the extension just in a week time from the date of this letter.

Based upon above mentioned two situations and arguments, how do now you see the continuity of her July 2018 visa with initial term visa of 2014.

I apologize for long story but it is really a critical aspect for defining her eligibility of ILR in 2020.

In both your case and that of your friend, there is no doubt that the continuity was broken.
If your friend got his ILR, he was very lucky and it is possible your partner may be as well. I would not be surprised that a CW would overlook this. But it would be a matter of luck and oversight rather than eligibility.
With respect of your friend, you did not mention if he was away in UAE continuously for years. If he was traveling frequently back to the UK to be with his family, it is easier to qualify as "living in the UK" and just travelling for work during that period. As I initially mentioned, this is arguable even if it is a tough argument in your partner's case.

In short, I am giving a very unprofessional opinion. You should seek a professional one. And anyway, you can always apply. The worst case is that it gets rejected. There are no negative implications other than losing the fees.

Thank you very much for you reply.

I am thinking on the same lines, what is the maximum risk, it is just the fee.

Do you confirm that if her ILR application is rejected, she will sill keep the chance of applying extension as my dependent partner in the UK if I get ILR? and within how many days after the rejection letter she can apply extension?

Please confirm.

Thanks and regards

libra71pk1 wrote: ↑

Fri Mar 06, 2020 12:00 am

Thank you very much for you reply.

I am thinking on the same lines, what is the maximum risk, it is just the fee.

Do you confirm that if her ILR application is rejected, she will sill keep the chance of applying extension as my dependent partner in the UK if I get ILR? and within how many days after the rejection letter she can apply extension?

Please confirm.

Thanks and regards

If you are planning to rely on the 5 year period being from start of 1st visa, she is already qualified. So, you can apply now and will most probably get the decision before the extension visa expires. If it is negative then she can apply for extension as normal.

If the refusal comes after the visa expires, you have to have the new application within 14 days. But she will be deemed an overstayer from the refusal date until the extension is granted. That will, however, not impact the ILR qualification later.