ILR for Tier 1 PBS Dependant (Partner & Child)

maricentr · Post by **maricentr** » Tue Nov 24, 2020 5:20 pm

Hi folks!
We are looking forward to submit an ILR application on 2021 but really worried about the period absences.

Here are our details:
Initial Visa Granted: 29 Sept 2016 - 11 March 2018

Entry in the UK as dependant (partner & child): 27 Oct 2016

PBS Leave to Remain Extension: 24 March 2018 - 24 March 2021

We made a recent application for another extension to avoid IHS surcharge increase (October 2020) and because I am due to give birth on January 2021. This extension was APPROVED.
PBS Leave to Remain Extension (2nd): 06 November 2020 - 06 Nov 2023

I understand that we can submit an ILR as early as 29 Sept 2021, however the allowed absences is really bugging me as we have frequent travel abroad (to join my husband [already with British citizenship via Naturalization] for business and holiday).

If the number of absences from the UK that needs to be counted is after the rules in place (11 January 2018) - 180 days and our last leave was granted just this 06 Nov 2020, our numbers are so beyond that:

Out of UK - In UK
31 May 2018 - 28 Aug 2018 = 89 days absent
06 Nov 2018 - 23 Dec 2018 = 47 days absent
17 Mar 2019 - 10 May 2019 = 54 days absent
13 July 2019 - 13 Sept 2019 = 62 days absent
17 Jan 2020 - 03 March 2020 = 46 days absent

What do you recommend that we do with this kind of situation?
Appreciate your feedback.

CULLINAN · Post by **CULLINAN** » Tue Nov 24, 2020 5:25 pm

Yes you are eligible from 29th Sep 2021 minus 28 days.

Your absence from UK should not be more than 180 days on rolling basis i.e. any 12 months, after any leave that was granted after 11th Jan 2018. In your case March 2018 onwards.

You will have to calculate accordingly.

Are you planning to give birth abroad?

Your husband does not live in UK?

maricentr · Post by **maricentr** » Tue Nov 24, 2020 5:33 pm

CULLINAN wrote: ↑
Tue Nov 24, 2020 5:25 pm
Yes you are eligible from 29th Sep 2021 minus 28 days.

Your absence from UK should not be more than 180 days on rolling basis i.e. any 12 months, after any leave that was granted after 11th Jan 2018. In your case March 2018 onwards.

Thanks for your quick reply.
Having said that, all our absences as enumerated is actually over and above the 180 days allowed absence

What is the remedy for this? Would the planned ILR application on 2021 result an outright refusal?

maricentr · Post by **maricentr** » Tue Nov 24, 2020 5:35 pm

CULLINAN wrote: ↑
Tue Nov 24, 2020 5:25 pm
Yes you are eligible from 29th Sep 2021 minus 28 days.

Your absence from UK should not be more than 180 days on rolling basis i.e. any 12 months, after any leave that was granted after 11th Jan 2018. In your case March 2018 onwards.

You will have to calculate accordingly.

Are you planning to give birth abroad? I am planning to give birth here in UK

Your husband does not live in UK? We are living here in UK

maricentr · Post by **maricentr** » Tue Nov 24, 2020 5:45 pm

maricentr wrote: ↑
Tue Nov 24, 2020 5:35 pm

CULLINAN wrote: ↑
Tue Nov 24, 2020 5:25 pm
Yes you are eligible from 29th Sep 2021 minus 28 days.

Your absence from UK should not be more than 180 days on rolling basis i.e. any 12 months, after any leave that was granted after 11th Jan 2018. In your case March 2018 onwards.

You will have to calculate accordingly. The absences I've listed were the days we spent outside UK (e.g on 31 May 2018 we left UK and came back on 28 Aug 2018 = 89 days absent) and so on. I am counting 298 days absences (give or take) since March 2018 onwards.

Are you planning to give birth abroad? I am planning to give birth here in UK

Your husband does not live in UK? We are living here in UK

CULLINAN · Post by **CULLINAN** » Tue Nov 24, 2020 6:14 pm

Your continuous residency seems to have broken. You need 5 years continuous residence to settle from the date it was broken.

maricentr · Post by **maricentr** » Tue Nov 24, 2020 6:18 pm

CULLINAN wrote: ↑
Tue Nov 24, 2020 6:14 pm
Your continuous residency seems to have broken. You need 5 years continuous residence to settle from the date it was broken.

Awww... I have to re start counting then. Determine a new target date for a 5 year residency then make sure 180days allowed absence.

CULLINAN · Post by **CULLINAN** » Tue Nov 24, 2020 6:22 pm

maricentr wrote: ↑
Tue Nov 24, 2020 6:18 pm

CULLINAN wrote: ↑
Tue Nov 24, 2020 6:14 pm
Your continuous residency seems to have broken. You need 5 years continuous residence to settle from the date it was broken.
Awww... I have to re start counting then. Determine a new target date for a 5 year residency then make sure 180days allowed absence.

You should not have extended your PBS extension. Rather you should have gone for a spouse visa. You will take 5 years on spouse visa to settle but there is no absence limits on family route (if I am correct).

If my calculation is correct, see attached:

maricentr · Post by **maricentr** » Tue Nov 24, 2020 9:32 pm

CULLINAN wrote: ↑
Tue Nov 24, 2020 6:22 pm

maricentr wrote: ↑
Tue Nov 24, 2020 6:18 pm

CULLINAN wrote: ↑
Tue Nov 24, 2020 6:14 pm
Your continuous residency seems to have broken. You need 5 years continuous residence to settle from the date it was broken.
Awww... I have to re start counting then. Determine a new target date for a 5 year residency then make sure 180days allowed absence.
You should not have extended your PBS extension. Rather you should have gone for a spouse visa. You will take 5 years on spouse visa to settle but there is no absence limits on family route (if I am correct).

If my calculation is correct, see attached:

Arrghh! So sad about this. If I had been aware of the 180days or that I should have applied for a Spouse Visa instead of the PBS dependant extension that was just granted this month.. All along I thought I could apply for ILR on 2021 then naturalization immediately if ILR is granted since husband already holds British citizenship.
A great deal of money and time wasted.

If I wanted my 5 year continuous residence to re-start, the best way is to apply for a spouse visa now? FLR (M)?
Appreciate your feedback..

CULLINAN · Post by **CULLINAN** » Tue Nov 24, 2020 9:48 pm

Yes you could have shifted to family route and could have applied a spouse visa. If you had done that, your ILR clock would have reset to zero previously and your time would have started to tick for ILR on that route. Obviously if you met all the requirements of FLR(M).

Now, you still can shift to FLR(M) but you will have to spend 5 years on this category before you can apply ILR on SET(M). There is no absence limit on family route as far as I know.

or

you can continue on PBS route till you complete 5 continuous years of residence. Each time you break the absence limit, it will reset the time.

maricentr · Post by **maricentr** » Tue Nov 24, 2020 11:34 pm

CULLINAN wrote: ↑
Tue Nov 24, 2020 9:48 pm
Yes you could have shifted to family route and could have applied a spouse visa. If you had done that, your ILR clock would have reset to zero previously and your time would have started to tick for ILR on that route. Obviously if you met all the requirements of FLR(M).

Now, you still can shift to FLR(M) but you will have to spend 5 years on this category before you can apply ILR on SET(M). There is no absence limit on family route as far as I know.

or

you can continue on PBS route till you complete 5 continuous years of residence. Each time you break the absence limit, it will reset the time.

Thank you for your quick and valuable responses.
My scenario is gonna keep me up and thinking for so many night and day until I decide which route should I go for.
> If I apply for FLR(M), my clock would re-set, if approved and maybe another extension application in the future to cover the 5 year residence, then I can apply for ILR on 2025 (give or take).. if there is NO absence limit in this category, then I can still go out of UK and travel with my family which is a likelihood for us.

>If I continue with the PBS visa, I need to watch out for the 180 days that should not be broken. We have plans to be out of UK after the birth of my baby ( around March 2021), so definitely I cannot stay longer than we plan for instead determine a new date where I would re calculate the 5 years residency.. Arrghh! I am so confused now which date should it be.. it is so mind-boggling to me now.

Also, since my 1st born son (PBS Dependant child, born outside UK last Dec 14 2014) has got his visa until Nov 06, 2023 - he would also then qualify for 5 year continuous residence (initial entry clearance granted was 29 September 2016). 180 days limit is not applicable to child dependant, am I correct?
> Can I separately apply him for ILR on September 2021 and if approved, then register him as child of British Citizen?
> Is this the likely scenario for my son? Or I should tag him along with my application if I pursue an FLR(M)?

Thank you so very much!

CULLINAN · Post by **CULLINAN** » Wed Nov 25, 2020 12:11 am

Your son born abroad will be tagging along with you. He will apply for ILR when you will. The residence does not apply to him though but he can only apply when the less privileged parent (in immigration sense) i.e you apply for ILR.

If you plan to switch to FLR(M), you will switch your son also.

In your case, your son has to have ILR before he can be registered as a British Citizen.

Also read:
https://www.freemovement.org.uk/the-180 ... tner-visa/

maricentr · Post by **maricentr** » Wed Nov 25, 2020 1:36 am

CULLINAN wrote: ↑
Wed Nov 25, 2020 12:11 am
Your son born abroad will be tagging along with you. He will apply for ILR when you will. The residence does not apply to him though but he can only apply when the less privileged parent (in immigration sense) i.e you apply for ILR.

If you plan to switch to FLR(M), you will switch your son also.

In your case, your son has to have ILR before he can be registered as a British Citizen.

Also read:
https://www.freemovement.org.uk/the-180 ... tner-visa/

Thanks for your reply.
I am just trying to make sense of my situation right now.
We have a PBS visa that we can maximize until Nov 2020 - Nov 2023 but we cannot use for future ILR application unless I make sure I can target a new a 5 year continuous period and that will not have 180 days absence. Please help me a little further with the calculation of the rolling basis as Im very confused what date should I start.

If I switch now to Partner visa, I have to prepare for all the needed documents, take an English language test for CEFR A1 and spend for visa fee £1,033 (x 2 or £2,066 as I need to include my son in my application). Do I have to pay for IHS again or there will be re-calculation or a refund from the IHS fee I have paid for from the recent PBS dependant application?

Thank you!

CULLINAN · Post by **CULLINAN** » Wed Nov 25, 2020 2:50 am

If you switch, you would need to pay IHS again at the new rate calculated at the date of application. However, I believe you should get a refund if you pay twice as the guidance says:

Refunds

You’ll get a full immigration health surcharge (IHS) refund if:
you paid twice
your visa application is refused
you withdraw your visa application

https://www.gov.uk/healthcare-immigrati ... on/refunds

The rolling basis absence works in a way that you can not have any absence outside UK for more than 180 days in ANY 12 month period i.e rolling basis on any leave that was granted after 11th Jan 2018.

For example:

1/1/2019 - 31/12/2019 (not more than 180 days outside)
2/1/2019 - 1/1/2020 (same as above)
3/1/2019 - 2//1/2020 (same as above)
and so on....

You will have to do the calculations yourself.

To be honest, given your situation the easiest for you to settle is via the PBS route given you keep a check on your absences and maintain a 5 year continuous residence.

If you cant, then obviously you will have to settle through FLR(M) which gives you benefit of no absence limits but you have to incorporate your additional costs, paper work, meeting the visa specific requirements etc and a reset of ILR clock.

CULLINAN · Post by **CULLINAN** » Wed Nov 25, 2020 10:49 am

Just to help you. IF my calculation is right (do not totally rely on that), you broke your continuous residency on 3/5/2019.

maricentr · Post by **maricentr** » Wed Nov 25, 2020 4:55 pm

CULLINAN wrote: ↑
Wed Nov 25, 2020 10:49 am
Just to help you. IF my calculation is right (do not totally rely on that), you broke your continuous residency on 3/5/2019.

Thank you very much for the illustration and your responses. Your inputs are of tremendous help to me. I will study this thoroughly and weigh on the pros and cons between PBS and partner visa, whichever would be the best route to take. Thanks again.

CULLINAN · Post by **CULLINAN** » Wed Nov 25, 2020 5:25 pm

maricentr wrote: ↑
Wed Nov 25, 2020 4:55 pm

CULLINAN wrote: ↑
Wed Nov 25, 2020 10:49 am
Just to help you. IF my calculation is right (do not totally rely on that), you broke your continuous residency on 3/5/2019.
Thank you very much for the illustration and your responses. Your inputs are of tremendous help to me. I will study this thoroughly and weigh on the pros and cons between PBS and partner visa, whichever would be the best route to take. Thanks again.

Good luck.. hope you can make an informed decision.

maricentr · Post by **maricentr** » Thu Nov 26, 2020 4:59 pm

CULLINAN wrote: ↑
Wed Nov 25, 2020 2:50 am
If you switch, you would need to pay IHS again at the new rate calculated at the date of application. However, I believe you should get a refund if you pay twice as the guidance says:

Refunds

You’ll get a full immigration health surcharge (IHS) refund if:
you paid twice
your visa application is refused
you withdraw your visa application
https://www.gov.uk/healthcare-immigrati ... on/refunds

The rolling basis absence works in a way that you can not have any absence outside UK for more than 180 days in ANY 12 month period i.e rolling basis on any leave that was granted after 11th Jan 2018.

For example:

1/1/2019 - 31/12/2019 (not more than 180 days outside)
2/1/2019 - 1/1/2020 (same as above)
3/1/2019 - 2//1/2020 (same as above)
and so on....

You will have to do the calculations yourself.

To be honest, given your situation the easiest for you to settle is via the PBS route given you keep a check on your absences and maintain a 5 year continuous residence.

If you cant, then obviously you will have to settle through FLR(M) which gives you benefit of no absence limits but you have to incorporate your additional costs, paper work, meeting the visa specific requirements etc and a reset of ILR clock.

Hello again!
I am trying to do the calculations of the 180days.

The rolling basis absence works in a way that you can not have any absence outside UK for more than 180 days in ANY 12 month period i.e rolling basis on any leave that was granted after 11th Jan 2018.

If my PBS visa extension was granted 23 March 2018 - this will be the start of counting the 12 month period as follows?
24/03/2018 - 23/03/2019
24/03/2019 - 23/03/2020
24/03/2020 - 23/03/2021

The previous absences before 23 March 2018 is irrelevant, is that correct?

maricentr · Post by **maricentr** » Thu Nov 26, 2020 5:43 pm

maricentr wrote: ↑
Thu Nov 26, 2020 4:59 pm

CULLINAN wrote: ↑
Wed Nov 25, 2020 2:50 am
If you switch, you would need to pay IHS again at the new rate calculated at the date of application. However, I believe you should get a refund if you pay twice as the guidance says:

Refunds

You’ll get a full immigration health surcharge (IHS) refund if:
you paid twice
your visa application is refused
you withdraw your visa application
https://www.gov.uk/healthcare-immigrati ... on/refunds

The rolling basis absence works in a way that you can not have any absence outside UK for more than 180 days in ANY 12 month period i.e rolling basis on any leave that was granted after 11th Jan 2018.

For example:

1/1/2019 - 31/12/2019 (not more than 180 days outside)
2/1/2019 - 1/1/2020 (same as above)
3/1/2019 - 2//1/2020 (same as above)
and so on....

You will have to do the calculations yourself.

To be honest, given your situation the easiest for you to settle is via the PBS route given you keep a check on your absences and maintain a 5 year continuous residence.

If you cant, then obviously you will have to settle through FLR(M) which gives you benefit of no absence limits but you have to incorporate your additional costs, paper work, meeting the visa specific requirements etc and a reset of ILR clock.
Hello again!
I am trying to do the calculations of the 180days.

The rolling basis absence works in a way that you can not have any absence outside UK for more than 180 days in ANY 12 month period i.e rolling basis on any leave that was granted after 11th Jan 2018.

If my PBS visa extension was granted 23 March 2018 - this will be the start of counting the 12 month period as follows?
24/03/2018 - 23/03/2019
24/03/2019 - 23/03/2020
24/03/2020 - 23/03/2021

The previous absences before 23 March 2018 is irrelevant, is that correct?

But 180days TOTAL absences only until the targeted ILR application date? Not 180 days every end of the 12month rolling basis?

If I have broken the 5 year continuous residency around May 2019 - it should be at this the date that I can look as a restart of the clock for the next 5 years?

Given the travel outside UK I have spent already (from May 2019 until March 2020 which is around 117days - this means

1. I cannot be absent in UK for another 63 days until May 2024 (May 2019 - May 2024 = 5 years continuous)?

2. Obviously, I have to re-apply again for a PBS extension visa before Nov 06, 2023 (expiry of recently granted PBS visa)

Looking forward to your input. Thank you!

CULLINAN · Post by **CULLINAN** » Thu Nov 26, 2020 6:46 pm

Do not confuse two things.

You will break continuous residence if:

a) You spend more than 180 days in any year during your 5 year continuous period.

or

b) exceed 180 days on rolling basis at anytime.

Your continuous period broke in May 2019 and will reset from the date you broke it. If you exceed any of (a) or (b) as stated above it will be break again.

If my PBS visa extension was granted 23 March 2018 - this will be the start of counting the 12 month period as follows?
24/03/2018 - 23/03/2019
24/03/2019 - 23/03/2020
24/03/2020 - 23/03/2021
This is (a) as stated above. You can not even exceed 180 days on rolling basis i.e. (b) as stated above also

The previous absences before 23 March 2018 is irrelevant, is that correct?
Correct

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ILR for Tier 1 PBS Dependant (Partner & Child)

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