set(o) tier 2 applicant with former tier 5 dependant

William the Conker · Post by **William the Conker** » Sun Sep 27, 2020 2:30 pm

I am applying for ILR, having lived in the UK for 5 years on a series of Tier 2 (general) visas. My dependant and I have lived together for the full 5 years that we have been in the UK (and before immigrating too). Initially, however, she came to the UK with me on Tier 5 Youth Mobility Visa. We added her to my visa as a dependant when we extended my visa in 2017.

Can she apply for ILR with me now, even though she was on a Tier 5 visa for the first two years?
And if so, do have to supply five years' evidence of cohabitation, or only 2?

We have been confused by these two pieces of guidance online:

Eligibility for partners
Your partner may qualify if all of the following apply:

    they have permission to be in the UK as your partner
    they’ve been living in the UK with you for at least 2 years if they applied before 9 July 2012 or 5 years if they applied on or after 9 July 2012
    your relationship is genuine
    you intend to continue living together
    you have enough income to support yourselves and your dependants
    you’re not using public funds
Link: https://www.gov.uk/settle-in-the-uk/y/y ... neral-visa

Combining leave for ILR
Leave granted as a dependant in another category of the Immigration Rules can be combined with leave granted as a PBS or Appendix W dependant to count towards the probationary period for ILR.
The applicant must have been granted as the spouse, civil partner, unmarried or same-sex partner of the same main applicant (that is, the PBS or Appendix W migrant).
The most recent leave must be as the partner of that skilled worker.
Leave granted for any other reason cannot be combined.
Link: https://assets.publishing.service.gov.u ... 528%2C0%5D

CR001 · Post by **CR001** » Sun Sep 27, 2020 2:55 pm

Can she apply for ILR with me now, even though she was on a Tier 5 visa for the first two years?

No she cannot apply for ilr with you. It will be refused. Tier 5 YMS does not lead to ILR based on 5 years residence. She needs to have held a tier 2 dependent for 5 years before she can apply for ilr, in her case, she will only qualify for ilr in 2022.

It is not about simply living together in the UK. It has everything to do with holding a qualifying visa in the relevant category.

She will need to apply for a tier 2 depeneent extension before her visa expires. It will be a 3 year extension.

William the Conker · Post by **William the Conker** » Sun Sep 27, 2020 3:35 pm

Thank you very much, CR001.

I assume that we calculate her five-year eligibility period on Tier 2 from the date printed on the BRP she received in 2017 (when she switched from Tier 5 to being my Tier 2 dependant)? The five-year mark would then be five years minus 28 days, as usual?

Our current visas expire 14 Apr 2021. Does my dependant need to apply to extend her visa now—when I apply for ILR—or can she apply to extend anytime before her current visa expires? We would like to wait if possible to minimize the amount of IHS surcharge we have to pay.

Many thanks.

CR001 · Post by **CR001** » Sun Sep 27, 2020 4:11 pm

I assume that we calculate her five-year eligibility period on Tier 2 from the date printed on the BRP she received in 2017 (when she switched from Tier 5 to being my Tier 2 dependant)? The five-year mark would then be five years minus 28 days, as usual?

Correct.

Our current visas expire 14 Apr 2021. Does my dependant need to apply to extend her visa now—when I apply for ILR

No.

or can she apply to extend anytime before her current visa expires?

Yes.

We would like to wait if possible to minimize the amount of IHS surcharge we have to pay.

It will be a 3 year extension regardless of when you apply. IHS is potentially also increasing.

https://www.freemovement.org.uk/immigra ... ober-2020/

William the Conker · Post by **William the Conker** » Thu Oct 01, 2020 12:21 pm

Many thanks for your advice, Char, and for the reminder that IHS fees are set to increase very soon. That certainly makes it more advantageous to just extend her visa ASAP.

Is it possible for her to apply for the Tier 2 extension now, at the same time as I apply for ILR, or does she need to wait until my ILR has been approved?

Also, is there any advantage for her to apply for a 'Partner of a settled person' visa instead of a Tier 2 extension?

CR001 · Post by **CR001** » Thu Oct 01, 2020 12:42 pm

Many thanks for your advice, Char, and for the reminder that IHS fees are set to increase very soon. That certainly makes it more advantageous to just extend her visa ASAP.

The increase in IHS has been delayed for a bit, probably by no more than a few weeks.

https://www.freemovement.org.uk/immigra ... ober-2020/

Is it possible for her to apply for the Tier 2 extension now, at the same time as I apply for ILR, or does she need to wait until my ILR has been approved?

Yes, however she wont' get a decision until your ILR is approved. If your ILR fails, her extension will also fail.

Also, is there any advantage for her to apply for a 'Partner of a settled person' visa instead of a Tier 2 extension?

It resets her 5 year ILR clock to zero and a new 5 year route (2 x 2.5 year visas) before she can apply for ILR. She cannot combine time as PBS Dependent with partner of settled person visa to make up 5 years.

William the Conker · Post by **William the Conker** » Sun Oct 11, 2020 9:10 pm

Thank you very much for explaining, Char. We did not know that changing her dependancy status could have such disastrous consequences!

Two questions:

1. We are applying for the extension to her Tier 2 visa as my dependant now. Meanwhile, I have now applied for ILR and am waiting on the results. Her application asks if the main applicant (me) has ILR: I assume we select 'no' at this point, since mine still hasn't been approved yet?

2. Does my dependant need to prove she has the necessary funds to meet the maintenance requirement? My employer/sponsor is A-rated and certifies maintenance on my current CoS. However, there is no CoS for the ILR app and the PBS dependants guidance mentions that "maintenance cannot be certified if your main applicant has indefinite leave to remain". I note that the Tier 2 extension application does not request anything related to maintenance. However, the PBS guidance notes: "Where the main applicant has been granted ILR or has naturalised as a British citizen you will need to show evidence of funds to satisfy maintenance requirements and cannot rely on certified maintenance or similar alternative demonstrations".

Thank you again.

CULLINAN · Post by **CULLINAN** » Sun Oct 11, 2020 9:17 pm

1) Correct.

2) No maintenance needed.
[The guidance your pointing out maybe is for someone who gets ILR via LR and then have to switch PBS dependents to FLR(M)]

PS Add a cover letter and mention you have applied for ILR. Your partner’s application will be processed after your decision anyways.

CR001 · Post by **CR001** » Mon Oct 12, 2020 6:10 am

1. We are applying for the extension to her Tier 2 visa as my dependant now. Meanwhile, I have now applied for ILR and am waiting on the results. Her application asks if the main applicant (me) has ILR: I assume we select 'no' at this point, since mine still hasn't been approved yet?

Why are you applying now when your partner still has a visa valid till April 2021? There is no requirement to apply for an extension know.

2. Does my dependant need to prove she has the necessary funds to meet the maintenance requirement? My employer/sponsor is A-rated and certifies maintenance on my current CoS. However, there is no CoS for the ILR app and the PBS dependants guidance mentions that "maintenance cannot be certified if your main applicant has indefinite leave to remain". I note that the Tier 2 extension application does not request anything related to maintenance. However, the PBS guidance notes: "Where the main applicant has been granted ILR or has naturalised as a British citizen you will need to show evidence of funds to satisfy maintenance requirements and cannot rely on certified maintenance or similar alternative demonstrations".

You need to prove maintenance of £630 for 90 days for a tier 2 dependent extension where the main tier 2 visa holders has ornis applying for ilr. The rules do not allow your tier 2 sponsor to certify maintenance if you have ilr.

William the Conker · Post by **William the Conker** » Mon Oct 12, 2020 8:47 am

CR001 wrote: ↑
Mon Oct 12, 2020 6:10 am

1.Why are you applying now when your partner still has a visa valid till April 2021? There is no requirement to apply for an extension know.
We're applying now because you told us that we will be forced to apply for a 3-year extension regardless, so we will have to pay for a full three years anyway, and the IHS fees are set to increase by the end of the month. So, we will save £705 if we apply before the increase is applied. Does that make sense?

Thanks again.

William the Conker · Post by **William the Conker** » Mon Oct 12, 2020 9:10 pm

Hi Char,

I just re-read my post and realized it sounded a bit blunt—my apologies for that!

We were planning to apply now since we were hoping to beat the increase in IHS fees. And, if we need to pay for 3 years anyway, there's no benefit in maximizing the time on this visa, since 3 years puts us well over the two years we need before she can apply for ILR herself.

Can you think of any reason why we shouldn't apply now, in this case?

Thanks again, and apologies if my last post came off as terse!

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set(o) tier 2 applicant with former tier 5 dependant

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