PLEASE HELP : PBS Dependent ILR questions

Anjali85 · Post by **Anjali85** » Tue Oct 10, 2017 5:47 pm

Hi all, Hope you are doing well.

Please find my scenario described below. It would be great help if you can answer the questions.

ILR Route : Tier 1 Dependent 5 year category.
First time visa issues : 02-Nov-2012
First time UK entry : 20-Jan-2013
Days Between UK entry and Visa issue date :79

Question 1 : Can I apply for ILR on 04-Nov-2017 , ie 5 years after the visa issue date? Please note that I am calculating 5 years starting from visa issue date, not from UK entry date. Pls correct me if I am wrong.

Question 2 : I was out of UK for close to 10 months during maternity period. That is more than 180 days in continuous 12 month period. Will it be a problem for applying ILR as dependant?

Your help is highly appreciated.

CR001 · Post by **CR001** » Tue Oct 10, 2017 6:49 pm

Question 1 : Can I apply for ILR on 04-Nov-2017 , ie 5 years after the visa issue date? Please note that I am calculating 5 years starting from visa issue date, not from UK entry date. Pls correct me if I am wrong.

No you cannot apply in the beginning of November. Your 5 years residence clock starts from date of ENTRY to the UK and not the date of visa issue date.

Question 2 : I was out of UK for close to 10 months during maternity period. That is more than 180 days in continuous 12 month period. Will it be a problem for applying ILR as dependant?

There is no absence limit for PBS dependents.

libral · Post by **libral** » Wed Oct 11, 2017 12:19 am

Can they not apply if they enter with in 90 days?

Also if the partner has already been granted Ilr, then are the dependant become main applicants when applying on Set o?

thanks

CR001 · Post by **CR001** » Wed Oct 11, 2017 8:07 am

libral wrote: ↑
Wed Oct 11, 2017 12:19 am
Can they not apply if they enter with in 90 days? No. That concessions is ONLY applicable to the main PBS visa holder and NOT dependents.

Also if the partner has already been granted Ilr, then are the dependant become main applicants when applying on Set o? Yes

thanks

Anjali85 · Post by **Anjali85** » Wed Oct 11, 2017 9:12 am

CR001 wrote: ↑
Wed Oct 11, 2017 8:07 am

libral wrote: ↑
Wed Oct 11, 2017 12:19 am
Can they not apply if they enter with in 90 days? No. That concessions is ONLY applicable to the main PBS visa holder and NOT dependents.

Thanks a lot for your responses.

Is there any document or article which confirms that 5 year period for dependent (spouse) starts from the date of entry?
Unfortunately, I am in a situation where I've to file for ILR as early possible. Any help on this is highly appreciated.

CR001 · Post by **CR001** » Wed Oct 11, 2017 9:39 am

Anjali85 wrote: ↑
Wed Oct 11, 2017 9:12 am
Thanks a lot for your responses.

Is there any document or article which confirms that 5 year period for dependent (spouse) starts from the date of entry?
Unfortunately, I am in a situation where I've to file for ILR as early possible. Any help on this is highly appreciated.

The immigration rules clearly state that a PBS dependent requires 5 years residence to qualify for ILR if they are post 9 July 2012 applicants. As the absence concessions do not apply to PBS dependents, this residence period is counted from date of ENTRY for ILR.

We have had members in the past apply too early thinking the concessions applied to PBS Dependents and their applications were refused due to not meet the residence requirement.

Anjali85 · Post by **Anjali85** » Wed Oct 11, 2017 1:27 pm

thanks a lot. much appreciated. have a good day.

me786 · Post by **me786** » Thu Oct 12, 2017 12:59 am

I have received a response from Home office through public inquiry email id that suggested that PBS dependents are also covered by the guidelines to calculate the continuous 5 year stay in UK for PBS applicants.

This means that the 90 day entry buffer that is applicable to PBS main applicants should also be applicable to dependent applicants. I am yet to make my application however I have all intentions of applying for ILR based on the initial visa issuance date instead of the actual UK entry date.

To me it seems that due to lack of clarity around how to calculate the 5 year stay in UK for PBS dependents the default assumption has been to use the UK entry date as the safe starting point.

Please reach out to UKVI to form your own opinion and post back if you find more on the same.

CR001 · Post by **CR001** » Thu Oct 12, 2017 1:46 pm

me786 wrote: ↑
Thu Oct 12, 2017 12:59 am
I have received a response from Home office through public inquiry email id that suggested that PBS dependents are also covered by the guidelines to calculate the continuous 5 year stay in UK for PBS applicants.

This means that the 90 day entry buffer that is applicable to PBS main applicants should also be applicable to dependent applicants. I am yet to make my application however I have all intentions of applying for ILR based on the initial visa issuance date instead of the actual UK entry date.

To me it seems that due to lack of clarity around how to calculate the 5 year stay in UK for PBS dependents the default assumption has been to use the UK entry date as the safe starting point.

Please reach out to UKVI to form your own opinion and post back if you find more on the same.

If you feel you can afford to lose that much money due to not meeting the 5 year residence requirement, then apply and let us know the outcome. You will note from the calculating continuous residence guidelines, that it does not list 'PBS dependents' as a category the guidance applies to. You should alos be aware that the call centre is a 3rd party agent and frequently give out incorrect advice and take no responsibility for it.

The immigration rules are clear that a PBS Dependent requires 5 years residence in that visa category to qualify for ILR.

Specific PBS dependent Immigration rules in 319E below.

https://www.gov.uk/guidance/immigration ... ly-members

me786 · Post by **me786** » Thu Oct 12, 2017 11:43 pm

I have got this response through FOI request as well as through an email response to the public enquiry email address. I understand that call centre responses are a bit unreliable and hence persistently tried to get a written response that I can use to support my ILR application.

The point that I have tried to clarify with UKVI is that in absence of a clear definition of how exactly those 5 years are calculated for dependents, it should be covered under the same guidance as PBS applicants.

I have even tried without luck to search for a case in this forum where dependent ILR was refused because the application was made based on start date as the visa issuance date and not the entry date. Can you help pointing me to any such examples from the past ?

CR001 · Post by **CR001** » Fri Oct 13, 2017 8:25 am

me786 wrote: ↑
Thu Oct 12, 2017 11:43 pm
I have got this response through FOI request as well as through an email response to the public enquiry email address. I understand that call centre responses are a bit unreliable and hence persistently tried to get a written response that I can use to support my ILR application.

The point that I have tried to clarify with UKVI is that in absence of a clear definition of how exactly those 5 years are calculated for dependents, it should be covered under the same guidance as PBS applicants.

I have even tried without luck to search for a case in this forum where dependent ILR was refused because the application was made based on start date as the visa issuance date and not the entry date. Can you help pointing me to any such examples from the past ?

1. The immigration rules overide ANY guidance notes. Guidance notes are just that, guidance.

2. There have been many members posting refusals as the PBS migrant did not meet the residence requirement.

Here are a couple of examples I found with a quick search, both refused and quoting immigration rule 319E, as I have stated already.

indefinite-leave-to-remain/tier-1-gener ... %20refused

And another, also refused under 319E(d)

indefinite-leave-to-remain/ilr-applicat ... d#p1378875

me786 · Post by **me786** » Wed Oct 18, 2017 10:53 am

This is a link to a FOI request on this subject which clarifies that the period between visa issuance and actual entry can be counted towards continuous stay for PBS dependents as well.

https://www.whatdotheyknow.com/request/ ... ing-694691

CR001 · Post by **CR001** » Wed Oct 18, 2017 11:10 am

me786 wrote: ↑
Wed Oct 18, 2017 10:53 am
This is a link to a FOI request on this subject which clarifies that the period between visa issuance and actual entry can be counted towards continuous stay for PBS dependents as well.

https://www.whatdotheyknow.com/request/ ... ing-694691

You are mistaken, but if that is what you believe please do apply for the dependent and let us know the outcome. Again, the immigration rules override any guidance notes.

The guidance page 4 you have been referred still does not state it is applicable to a PBS Dependents and the response you received from whatdotheyknow says 'if they are eligible'.

Perhaps you have not looked at the refused examples I provided??

me786 · Post by **me786** » Wed Oct 18, 2017 2:53 pm

CR001 wrote: ↑
Wed Oct 18, 2017 11:10 am

me786 wrote: ↑
Wed Oct 18, 2017 10:53 am
This is a link to a FOI request on this subject which clarifies that the period between visa issuance and actual entry can be counted towards continuous stay for PBS dependents as well.

https://www.whatdotheyknow.com/request/ ... ing-694691
You are mistaken, but if that is what you believe please do apply for the dependent and let us know the outcome. Again, the immigration rules override any guidance notes.

The guidance page 4 you have been referred still does not state it is applicable to a PBS Dependents and the response you received from whatdotheyknow says 'if they are eligible'.

Perhaps you have not looked at the refused examples I provided??

Let me start by saying that I am just trying to remove ambiguity around the calculation of 5 years for ILR eligibility of PBS dependents and avoid making false assumptions due to lack of clarity.

I have not overlooked the examples you had captured in your previous reply. Both of the examples were clearly in conflict of immigration rules ( i.e. applying after 2 years instead of 5 and not being on dependent visa for whole of 5 years ). Infact, I have tried hard to look for a similar case to test the strength of my argument but I have not been successful yet.

The term "eligibility" in FOI response as per my understanding stands for the criteria for a PBS dependent visa holder to have a continuous stay of 5 years along with some of the other general requirements like subsisting relationship, LIUK, English language etc.

Is the absence of PBS Dependent as a category from the guidance for continuous period calculation, the only reason why you think the visa issuance date will not be accepted as the start date ?

zimba · Post by **zimba** » Wed Oct 18, 2017 3:56 pm

Under 319E(d) in Immigration Rules part 8: family members it is required that the dependant and the partner must have been living together in the UK, start of which will be date of entry to the UK:

(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 period specified ...

Hence the date of entry will be used as the start of the ILR specified period for PBS dependants

CR001 · Post by **CR001** » Wed Oct 18, 2017 4:09 pm

A PBS dependent applying for ILR requires 5 years residence, ie living in the UK for the 5 years (minus the standard 28 days). The exact same rule applied to PBS dependents prior to the rule changes in July 2012, where 2 years residence was required.

See page 29 of the HO caseworker guidance notes (click). The key words are 'have been living in the UK with......' as 319E(d) of the immigration rules also clearly states.

https://www.gov.uk/settle-in-the-uk/y/y ... ier-5-visa

The concession of 90 days and 180 days absence limits do not apply to PBS dependents. One could argue that if the 90 concession applied, then PBS Dep should be restricted to the same 180 days per 12 month absence limit, which would almost certainly disqualify a lot of PBS dependents from applying for ILR due to lengthy absences.

The two refusal cases I posted are from 2016 where both were refused for failing to meet the 5 years residence requirement under 319E(d).

Is the absence of PBS Dependent as a category from the guidance for continuous period calculation, the only reason why you think the visa issuance date will not be accepted as the start date ?

Not only the guidance which is mute on it, the immigration rules clearly state what the requirements are.

CR001 · Post by **CR001** » Wed Oct 18, 2017 4:11 pm

zimba88 wrote: ↑
Wed Oct 18, 2017 3:56 pm
Under 319E(d) in Immigration Rules part 8: family members it is required that the dependant and the partner must have been living together in the UK, start of which will be date of entry to the UK:

(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 period specified ...
Hence the date of entry will be used as the start of the ILR specified period for PBS dependants

I believe it is a bit pointless trying to explain this to the user (me786) who has been asking the same questions since February and stating the same points about the concessions applying to PBS dependents. Perhaps posting repetitively until someone says what they would like to hear

lanrezy · Post by **lanrezy** » Thu Nov 02, 2017 9:17 am

Hi,

@ me786,

It will be a source of knowledge for everyone if you eventually take this risk and update this query.

Cheers

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PLEASE HELP : PBS Dependent ILR questions

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