Eligible for ILR or not

Hi Team,

I am bit confused whether we are eligible for ILR or not.

We got out Tier 1 General visa granted in
Tier 1 General Visa
27 April 2010 to 26 April 2013

We entered in UK in 11 Sep 2010. My wife who is primary application went back to India on maternity reason on 25 Sep 2010 and return to UK with our son on 1 Oct 2011.

I am working in UK as a Tier 1 dependent from 15 Sep 2010 to 5 April 2013.

As she was not able to extend visa as Tier 1 General, she got a sponsorship and successfully changed visa status to Tier 2 General in UK

Tier 2 General Visa
23 April 2013 to 23 May 2016

She never worked during her Tier 1 General visa duration.

She is working as a full time employee form Aug 2013 after getting Tier 2 General visa.

I started working as a Tier 2 General Dependent from May 2013.

Are we eligible for ILR by Sep 2015 or do we need to go for another extension in May 2016.

Regards,
Karpu

You will have to go for another extension and may qualify in 2018, provided that route is still in existence.

Hi Obie,

Thanks for your quick response on this.

My question is as she changed her Visa status from Tier 1 General to Tier 2 General in UK why can't we count that time for ILR eligibility.

Is there anything which I a missing here. Can you please explaing.

-Karpu

But you said she did not undertake any economic activity with that visa, how can that visa then contribute to ILR, even ignoring the fact that she spend as excessive period of 13 months in India, when she is only permitted 180 days.

Hi Obie,

Thanks for your findings. This is where I am getting confused.

She is in India for 13 months because of child birth which can be considered as medical reason.
As she did not worked during her Tier 1 duration she was not able to extend her visa which results in Tier 2 General visa conversion and she is working now.

For ILR, with my knowledge, we need to show proof of employment for last 12 months and earning as per COS, and duration of stay for 5 years in UK and other relevant tests such as Life in UK and English Language certificates.

This is the point where I got confused whether we are eligible or not. I did not find any such case in the forums to make a decision.

I don’t want to see any Lawyer before taking advice form the site.

Regards,
-Karpu

karpu wrote: She is in India for 13 months because of child birth which can be considered as medical reason.

This is a debatable point, and likely not a winnable one, as the disparity in the expected quality of care for pregnancy is likely far to the advantage of the UK for just about every metric imaginable.

Hi ouflak1,

You are correct, I have not explained the medical reason completely. She was under medication during pregency and after delivery, and my son got admitted in hospital in India after birth. And we have got completely medical history records for us and my son.

Do you think this is the point they may reject case after providing medical records.

Regards,
-Karpu.

I don't believe pregnancy or maternity counts toward such excessive absence.

I believe when the rules state that the person has been living lawfully in the UK under those different categories, it mean more than merely holding an EC in that capacity.

The person needs to show that they were residing in the UK in accordance with the terms of that visa.

https://www.gov.uk/government/uploads/s ... eriods.pdf

Hi All,

Thanks for your response.

In such case i may need extension in May 2016 and we are going to be eligible in Sep 2016 as we will be completing 5 years in 2016.
Again we have to check other rules for eligibility.

Thanks

Hi All,

Many thanks for your response on this. Once again I need a suggestion from experts, where my understanding is correct or not for keeping our ILR options alive without going for another extension.

As my wife who is primary applicant outside UK from 25th Sep 2010 to 30th Sep 2011 (more than 180 days), hence we are not eligible for ILR in Sep 2015.

But, if we consider below time lines can we?

If we take 4th April 2011 to 30th September 2011 – difference is 179 days is outside UK which is not falling under 180 days time.

Start Date End Date Outside UK
1st October 2011 to 3rd April 2012 179 days
4th April 2012 to 3rd April 2013 45 days
4th April 2013 to 3rd April 2014 30 days
4th April 2014 to 3rd April 2015 30 days till date
4th April 2015 to 3rd April 2016

The other option is go for extension in May 2016 and will be eligible in September 2016, but as you know there are other rules also going to be applicable after April 2016.

Please suggest.

Regards,
Karpu

karpu wrote:Hi All,


Start Date End Date Outside UK
1st October 2011 to 3rd April 2012 179 days

Regards,
Karpu

That is not a year! The year would be: 4th April 2011 - 3rd April 2012

HI karpu

several issues here

1- whether your wife worked or not before going back to india, is not important. if say, she was looking for work but unable to find it. economic acitivity as such is no longer a settlement requirement under tier1, you have to gain points instead. so for tier2 settlement, i do not think this will come up. plus, looking for work is also economic activity for this purpose.

2 - your wife's absences are a worse thing. they do break continuity and they have a special note for caseworkers, that electing to give birth to a child overseas and then not come back for many months, is not a valid medical reason. primarily because this is for most people a planned event. medical reasons that are excused are those you cannot possibly have planned for, such as, accidents that happen while you are on holiday, or illness of a close relative overseas.
so, maternity absence for over 6 months does break continuity. it will not be excused for over 180 days at a time

3 - you are gauging correctly, that under current rules -- which is saying little, they change them every time -- it does tend to work in your favour if you pick an application date that breaks your longer absence into two segments of less than 180 days each. so, in your example, if you pick a date in April 2016 that is 179 days from your wife's departure in 2010 and not more than 179 to her arrival back in 2011, it will likely work.

the absences,once managed into less-than-180days in every 12-month segment counting backwards -frame, will not hurt your wife further, since they were personal, not for reasons of economic activity overseas.

so this may all work

Hi Sagareva,

Thanks for detailed explanation.

Now I gained some confidence that my understanding is correct.

I will keep posted on the updates going forward.

Hi Gurus,

Once again I need your help in my case. I have explained my case in detailed in my previous posts. As time is approaching now I am in the process of collecting all documents. I need some guidance in below points once again.

As I am going through latest SET O from where in Section “12P Tier 2 migrant” it says “If you were a Tier 1 (General) migrant, evidence that you were economically active in the UK in employment or self-employment or both (see section 12L)”.

As primary applicant was not working during Tier 1 duration (which is till 24th April 2013), can I consider this duration against Continuous stay or do I have to start my continuous stay from 24th April 2013.

Please advise me. If anyone is in same situation please share your thoughts which will be very helpful.

Thanks in advance.
Karpu

I somehow have different take on this whole scenario
1) Economy activity in Tier 1 (General) doesn't matter, but what matters is legality of continuity. Economic activuty would have have matter when extending NOT counting towards 5 yrs legal stay. Please enlighten me with rules/links if i am wrong
2) 179 days absence on first yr with or without reason, whether or not it's compassionate or maternity will be counted as within limit of 180 days allowed for any calendar yr. BUT applicant need to provide reason with letters, in this case self-explanatory letter

Hi Abhishek,

Thank you very much for your response.

Gurus please anyone having anything to say. Did anybody see such cases?

Please share your thoughts.

Thanks

-Karpu