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Hello genuine people!

I need your help and advice on my case.

My wife was granted ILR status based on a 10 years route a few days ago.

Now it is my turn to apply but I am not sure what is the best way to do so.

I have been living in the UK since October 2010 as a PBS dependent on my wife’s visa.

However, I had to travel a lot especially during 2010-2012 because of my work in my home country. I could not quit the job abroad until 2012 for personal reasons. Now my days outside of the UK are equal to 662 which exceeds the limit of 540 as outlined by regulation. 46 days out of 662 were for business purposes.

My current visa is valid until 26 April 2021. Even if I wait until April 2021 the number of my days outside of the UK is equal to 580 (46 days for business are included in 580).

My questions are as per below:

1)     Am I eligible to apply for ILR on my own (independently), not as a dependant on my wife’s ILR and what are the chances to get a refusal with 580 days outside of the UK (46 days for business trips, I can get a letter from my previous employer to confirm this)?

2)     If I am eligible to apply on my own (independently) I assume the best time to apply is in April 2021, so I need to wait a few months in order to get my number of days outside the UK down to 580. Please advise.

3)     If I am not eligible to apply myself and must apply as a dependent, what status and document will I be granted? Is it going to be BRP with ILR or BRP with some type of Visa extension?

4)     Is there a requirement for ILR LR dependents to not exceed the limit of 540 days?

5)     If I apply myself for ILR LR my application type will be Set (LR) like my wife’s. But if I apply as a dependent, what type of application should I use?

Thank you very much for your time, support and help.

Firstly you can not settle via the PBS route now since your wife got ILR via LR.

You only have two options. (A) is very risky. (B) will give you more time and safe.

A) Although the LR guidance talk about exercising discretion when it comes to total absences if there are any compelling circumstances. However, HO is very strict when it comes to exceeding absence limits for LR. This option can be very risky as the application can be refused if CW does not exercise discretion and in your case, I see it as a weak case.
https://assets.publishing.service.gov.u ... 6.0ext.pdf

B) Your PBS visa is technically invalid now and if you travel outside UK, it could be curtailed or you can be refused entry in UK.

You are expected to switch to FLR(M) now. You will have to meet all the visa specific requirements including the income threshold. The ILR clock will reset for the 5 year route.

You will get a 30 months initial visa before you can extend it for another 30 months, and settle via this route when you complete 60 months minus 28 days.

or

The safest in your situation would be to switch over to FLR(M) and then apply ILR via LR on a date when you are eligible and meet the LR requirements including the absence limits.

Also, do the calculations yourself and see when you meet the absence requirement.

You can possibly apply for FLR(M) before PBS dep visa expiry in April 2021 (given you do not travel outside UK - your visa could be curtailed if you do).
You get 2 months to submit biometrics after you apply. You can extend this period possibly till June 2021 and will be covered by Section 3C.

The day you meet the LR requirements, VARY your application to ILR LR given a decision is not made on your FLR(M) application. Make sure you vary to LR on a day when you are eligible. The fee for FLR(M) will be refunded then and your LR application will be considered instead.

Note: Make sure you submit biometrics for FLR(M) also to make the application valid before you vary it to LR. You will have to submit biometrics again for LR.

For the variation route on Section 3C, I know that if God forbid HO is not in a good mood, they can say that after you varied to LR on Section 3C, the date of application will be the date of initial FLR(M) and you did not actually qualify on that date for LR and refuse.

But then, the policy also says, that as long a decision is made on the date when the applicant actually qualifies, the CW must take the date of decision to count continuous period and grant the visa.

I would request @Vinny to please clarify if the variation in this case for LR will be safe to play if the user varies to LR while on Section 3C. Thanks

CULLINAN wrote: ↑

Sat Nov 28, 2020 12:37 am

For the variation route on Section 3C, I know that if God forbid HO is not in a good mood, they can say that after you varied to LR on Section 3C, the date of application will be the date of initial FLR(M) and you did not actually qualify on that date for LR and refuse.

But then, the policy also says, that as long a decision is made on the date when the applicant actually qualifies, the CW must take the date of decision to count continuous period and grant the visa.

I would request @Vinny to please clarify if the variation in this case for LR will be safe to play if the user varies to LR while on Section 3C. Thanks

Thanks a lot, CULLINAN. I was hoping you would reply.
I will wait for Vinny's inputs.

I know it is irrelevant now, but just so I know, if I have applied together with my wife's ILR application, would I have been granted ILR even if I exceeded the absence limits?

An applicant submits application A in time. They then submit application B before application A has been decided, but after the applicant’s leave has expired when the applicant transitioned to 3C leave.

As the applicant transitioned to 3C leave and a decision has not yet been made on application A, application B is automatically considered as a variation of application A. The date of application is the date application A was submitted.

https://assets.publishing.service.gov.u ... .0-ext.pdf

I have personally heard about a case where HO refused an applicant who varied to LR on Section 3C, giving an argument that after variation, the date of application was the initial date and at that point the applicant did not meet the 10 years continuous lawful residence. In my view, it is still a little risky to vary to LR on Section 3C as you never know HO’s mood.

Safest option: The best would be to apply for FLR(M) and once it is successful, only then apply for LR when you are eligible. Obviously, it involves more cost but is the safest route to take in my opinion.

You could not have applied with your wife since you can not settle via the PBS route, while she got ILR via LR.

But then, the policy also says, that as long a decision is made on the date when the applicant actually qualifies, the CW must take the date of decision to count continuous period and grant the visa.

as this will not apply to 10 years lawful residence.


My opinion stands as to the above post “safest option.”

Safest option: The best would be to apply for FLR(M) and once it is successful, only then apply for LR when you are eligible. Obviously, it involves more cost but is the safest route to take in my opinion.

This is so helpful, CULLINAN, thank you.
Yes, agree with you on the safest option.

Actually, looking back at my absence days, I only have my current passport which is valid from September 2014 and my previous one was taken from me when I got the new (current) passport. So, the days from 2010 and 2014 were calculated based on my personal records with some conservatism. I heard that there is an option (at cost) to request travel history from HO. Do you know how this works?

ablon wrote: ↑

Sat Nov 28, 2020 1:26 am

This is so helpful, CULLINAN, thank you.
Yes, agree with you on the safest option.

Actually, looking back at my absence days, I only have my current passport which is valid from September 2014 and my previous one was taken from me when I got the new (current) passport. So, the days from 2010 and 2014 were calculated based on my personal records with some conservatism. I heard that there is an option (at cost) to request travel history from HO. Do you know how this works?

You can possibly apply for a Subject Access Report (SAR) and hope your travel dates are recorded there. Sometimes, not all are. You would possibly have to be searching your flight tickets etc in that case.

https://www.gov.uk/government/publicati ... mmigration

Do you have a copy of the previous full passport? If you have, you are sorted.

I might have it, but not sure if it is in full though. Need to check. If some pages are missing, will it be an issue?

ablon wrote: ↑

Sat Nov 28, 2020 1:37 am

I might have it, but not sure if it is in full though. Need to check. If some pages are missing, will it be an issue?

As long you have the bio page and all stamps pages.

Got it. Really appreciate all you help, CULLINAN. God bless you.

Sorry, CULLINAN, if I wait until April 2021 and apply then for ILR LR with 580 days of absence of which 46 days were for business trips and I can get a letter confirming this from my previous employer, will this fall under discretion?

Discretion is very rare if you are over the 540 days absence limit, even by one day. All absences are classed as simply absence. HO makes no distinction between types or reasons of absence.

An employer letter is likely irrelevant.

CR001 wrote: ↑

Sat Nov 28, 2020 8:59 am

Discretion is very rare if you are over the 540 days absence limit, even by one day. All absences are classed as simply absence. HO makes no distinction between types or reasons of absence.

An employer letter is likely irrelevant.

Thank you for your clarification, CR001.

CULLINAN wrote: ↑

Sat Nov 28, 2020 12:15 am

Firstly you can not settle via the PBS route now since your wife got ILR via LR.

You only have two options. (A) is very risky. (B) will give you more time and safe.

A) Although the LR guidance talk about exercising discretion when it comes to total absences if there are any compelling circumstances. However, HO is very strict when it comes to exceeding absence limits for LR. This option can be very risky as the application can be refused if CW does not exercise discretion and in your case, I see it as a weak case.
https://assets.publishing.service.gov.u ... 6.0ext.pdf

B) Your PBS visa is technically invalid now and if you travel outside UK, it could be curtailed or you can be refused entry in UK.

You are expected to switch to FLR(M) now. You will have to meet all the visa specific requirements including the income threshold. The ILR clock will reset for the 5 year route.

You will get a 30 months initial visa before you can extend it for another 30 months, and settle via this route when you complete 60 months minus 28 days.

or

The safest in your situation would be to switch over to FLR(M) and then apply ILR via LR on a date when you are eligible and meet the LR requirements including the absence limits.

Hello CULLINAN, quick question on "Your PBS visa is technically invalid now", is there any reference which says that staying on my PBS dependent visa (while main applicant had got ILR) is allowed (reference similar to Section 3C)?
Just worried if this might become an issue when I apply for ILR early next year.

immigration-for-family-members/dependan ... 43881.html

immigration-for-family-members/dependen ... l#p1124247

CULLINAN wrote: ↑

Wed Dec 02, 2020 12:17 pm

immigration-for-family-members/dependan ... 43881.html

immigration-for-family-members/dependen ... l#p1124247

Thanks a lot for your prompt response, CULLINAN!