180 days absence rule (and) ILR for Tier2 Dependants:

[onikesh84]

The home office document (please find attached page eight) for calculating continuous period for ILR says:

https://www.gov.uk/government/publicati ... riod-in-uk

1. "For PBS dependant You must not include any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 towards the 180 days allowable absences"

For example, if a dependant’s qualifying period includes initial leave granted from 1 January 2015 to 31 December 2017, and an extension granted from 1 January 2018 to 31 December 2019, you must not count any absences before 1 January 2018.

2. Regarding the period between visa start date and entry to the UK it says that "If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation"

My wife entered UK on tier2 dependant which was renewed once. The dates for her first tier2 dependant visa and entry into the UK are

Tier2 dependant Visa Start Date: 16 May 2014
Actual entry into UK: 16 Nov 2014

So clearly the gap between her visa start and entry date is 184 days.

My question is: If for a PBS dependant 'any' absence for period of leave granted under old rule (which was in place before 11 Jan 2018) should not be included in the 180 day allowable absence then can my wife's qualifying period for ILR start from her Visa start date instead of the date she entered UK despite the gap between the 2 dates being 184 days ?

Note: Her Tier 2 visa was renewed on 20 Sep 2016 and it's valid till 14 Sept 2019. So if I can consider her qualifying period for ILR from her first visa start date (16 May 2014) rather than her entry date into the UK (16 Nov 2014) then I can apply for her ILR much before without needing another Tier 2 extension.

Thanks,
Nikesh

[zimba]

PBS dependants who have been granted visa before 11 Jan 2018 do not have any absence limit when they apply for ILR

[onikesh84]

Does that mean a gap of more than 180 days between visa start and UK entry date should be fine for a PBS dependant

[zimba]

Yes.

[onikesh84]

Thanks Zimba for the update but you are sure about this right. Asking since I might loose lots of money if my application goes wrong.

[CR001]

I cannot recall any success posts of dependents with such a large number of days delay in arriving in the UK, perhaps zimba does.

If you don't wish to risk it, then apply later for your dependent.

[onikesh84]

CR001-Do you think I should take advise from a immigration adviser and also can any such advise be relied upon in this case, since the home office guidance i mentioned above is a bit contradicting and open to interpretation.

[CR001]

Not open to interpretation. It is quite clear. As the delay in your case was 184 days, I believe the last para in the below applies and I personally would avoid the risk and wait before applying.

uk-tier-1-general-dependent-visas/ilr-t ... l#p1583820

Note the absence (pun intended) of family members in Categories covered by this guidance.

****UPDATE**** PBS dependant category is now covered under the Indefinite leave to remain: calculating continuous period in UK guidance!

This means that PBS dependants may now also take advantage of the following:

Period between the issue of entry clearance and entering the UK

The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the continuous 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.

If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation.

[onikesh84]

CR001 it also has a special section for PBS dependant and it says the below. Please note the use of word "any"

PBS dependants
You must not include any absence from the UK during periods of leave granted
under the Rules in place before 11 January 2018 towards the 180 days allowable
absences. For example, if a dependant’s qualifying period includes initial leave
granted from 1 January 2015 to 31 December 2017, and an extension granted from
1 January 2018 to 31 December 2019, you must not count any absences before 1
January 2018.

[CR001]

CR001 it also has a special section for PBS dependant and it says the below. Please note the use of word "any"

PBS dependants
You must not include any absence from the UK during periods of leave granted
under the Rules in place before 11 January 2018 towards the 180 days allowable
absences. For example, if a dependant’s qualifying period includes initial leave
granted from 1 January 2015 to 31 December 2017, and an extension granted from
1 January 2018 to 31 December 2019, you must not count any absences before 1
January 2018.

The above and the quote I provided, are two different aspects/provisions as far as I understand.

It really is your decision if you want take the risk and if refused for not meeting the qualifying 5 years residence, losing your fee.

[onikesh84]

CR001 Thanks for your help, I completely understand your interpretation as well. I am trying to get as many opinions as possible.

Zimba what do you think, do you still think 184 days is fine between visa start and entry of a pbs dependant

[onikesh84]

CR001 One more question. I am already on ILR but my spouse is not. Can I apply for my daughters ILR even if she has not met the 5 year residence based on the fact that one of her parent has an ILR

[CR001]

CR001 One more question. I am already on ILR but my spouse is not. Can I apply for my daughters ILR even if she has not met the 5 year residence based on the fact that one of her parent has an ILR

A child born abroad will qualify for ILR when your spouse does.

[onikesh84]

Tough luck seems that I will need to waste money for extending both my wifes and daughters tier2. They current visas are falling short by just one month before they completele 4 yr 11 months in UK. If I count from their original visa start date then I could have saved this money.

[onikesh84]

CR001 one more thing have you heard of anybody applying by giving a genuine reason for their long absence. In my case my mother was seriously ill and hence my wife stayed back in India. We can provide all the doctors certificates and medical reports to support that. Do you think its worth going that path, considering there was a genuine reason, we have evidences and the gap was just 4 days more than 180 ?

[CR001]

As I said, the choice and risk is yours.

The immigration rules are clear on the 180 days maximum. There is usually no discretion.

[onikesh84]

@zimba Can you please help here, on what basis did you feel that having more than 180 days of absence between Visa start and first UK entry for PBS dependant should be fine, was it based on your interpretation of the rules or do you know of any such application being successful in the past

[ijam]

My case may help you:
Me a British passport holder. My wife and kids had the Tier 2 general dependent visa stamped in October 2013. But they arrived in the UK in Aug, 2014.
We applied for my wife's ILR in December, 2018 successfully. Her extension for Tier 2 general was valid till Mar, 31 2019.

[onikesh84]

ijam Thanks for the info. I guess this is very very helpfull. The only difference between your and my case is that I have an ILR not a British citizenship. But the rules for dependants to apply for ILR are same irrespective of the main applicant being a British citizen or and ILR holder.

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

@zimba @cr0001 Can you please give your opinion based on this info.

My Imigration History:
Tier2-Visa: 01 Sep 2013
Tier2-Ext: 20 Sep 2016
ILR: 18 Sep 2018

My Wifes History:
Tier2-Visa: 16 May 2014
Entry into UK: 16 Nov 2014
Tier2-Ext: 20 Sep 2016
Tier2-Ext End date: 14 Sep 2019

If i consider her first Tier2 Visa start date then I can apply for her ILR next month April 2019 else I will have to go for a Tier2 ext because she will be short just by a month

[onikesh84]

But the rules for dependants to apply for ILR are same irrespective of the main applicant being a British citizen or and ILR holder.
>> Provided that the British citizen has become a citizen by previously going through the work visa -> ilr -> citizen route.

ijam can you confirm that you were not British citizen by birth, but you had a work visa previosuly.

Also one more question when you made the ILR application what did you put for First entry dat in UK was it you wifes visa start date or her actual entry date in uK

[ijam]

I was a foreign national on Tier 2 general visa earlier. We put her actual entry date in the UK.

[onikesh84]

ijam Thanks for all the info. I guess I am going to go ahead directly with ILR application for my wife without applying for tier 2 extension. I will hold back my daughters ILR application though to cut down on monetary risk.

[ijam]

Thats exactly what we did. All the best.

[mma1]

Hi Nikesh

I am in a similar situation to yours and wanted to check if you had reached to any conclusion on which route to apply and if you actioned, which one?

Many thanks