Continuous residence requirement for dependants on Tier-2 as per appendix continuous residence

[Blazer1]

Hello friends,
I hope this message finds you all well.
I have always been on a Tier-2 dependant visa which is now a skilled worker visa. I never had breaks on my visa. My wife has received her ILR and my child is a British citizen.
Me and my wife entered the UK in Oct 2017, but I had to be out of the UK for more than 180 days as I had a job back in India around 2018, 2019.
I came back to the UK for good in 2020 and there are no long absences after 2020.

I recently came across a link with an appendix stating that dependents's long absences can be accepted if they meet specific requirements. I am attaching the link here for you guys to review.
In my case, I am aware that I am eligible to apply for ILR in December 2024. But as per the appendix, if I can satisfy the requirements laid down in CR2.3( G) and CR 3.1, then I may be eligible to apply for ILR in 2023.
I am unable to attach any screen shots for which I apologise.
Any help/guidance in this regard will be highly appreciated.

https://www.gov.uk/guidance/immigration ... -residence

[CR001]

CR2.3(G) does not apply to PBS Dependents. It clearly states "Appendix Settlement Family Life", which is a different visa route.

More importantly, what are the dates of all your dependents visa, start and expiry dates?

PBS Dependents only have to declare absences, which break continuity of residence, for visas issued on or after 11th January 2018. So the dates of your visas are important.

[Blazer1]

Thanks for your quick reply CR001.

So, as my wife works for NHS , her contracts are for 1 year. That's why every year we had to apply for a new tier-2 visa as she had to change her jobs or renew her contracts.

The first visa was issued on the vignette in the passport and its validity was 13/10/2017- 12/11/2017.

We first entered UK on 26/10/2017 and then got our first BRP

First BRP 29/9/2017-14/11/2018
second BRP 30/6/2018-20/8/2019 ( my wife left her first job before she finished 1 year )
third BRP 2/8/2019-3/9/2020
fourth BRP 11/9/2020-3/9/2021( the application was lodged before 3/9/2020, hence the new BRP was issued with date 11/9/2020)
fifth BRP 17/8/2021-17/9/2022
sixth BRP 18/7/2022-10/10/2024 ( this was the only instance when CoS was issued with 2 years of visa)

I have my absences on an excel sheet, can you tell me how do I share it here in case you would like to have a look at it.

warm regards

[CR001]

second BRP 30/6/2018-20/8/2019 ( my wife left her first job before she finished 1 year )

You only have to declare absences after 30/06/2018. Any absence that is 180 days or more after this visa was issued, breaks your continuity of residence.

When did you return to the UK permanently in 2020? Your qualifying period for ILR will likely start from this date.

[Blazer1]

As per my calculations, my 5 year period starts from 4/11/2019.
But please let me know your opinion.
Please find below the entry and exit dates along with the days spent out of UK

date left UK----date returned back to UK---- days spent out of UK

28 November 2017---- 22 December 2017----23
13 February 2018----12 March 2018----26
20 March 2018----28 May 201---- 68
09 June 2018---- 20 June 2018---- 10
24 July 2018----15 December 2018---- 143
12 January 2019----29 July 2019 ---- 197
09 August 2019----03 November 2019---- 85
04 November 2019----06 December 2019---- 31
16 December 2019----26 December 2019---- 9
28 December 2019----12 February 2020---- 45
13 February 2020---- 20 February 202---- 6
29 February 2020----14 May 2020---- 74
11 March 2022----27 March 2022---- 15
07 August 2022----29 August 2022---- 21
01 October 2022----15 October 2022---- 13
22 January 2023----12 February 2023---- 20
25 March 2023----10 April 2023---- 15

[CR001]

You will need to work it out.

The rule is, any absences of 180 days or more in ANY 12 month rolling period breaks your continuity of residence.

Unsure why you conclude your qualifying period starts on 4th November 2019.

[Blazer1]

then as per you, when can i apply for my ILR or when do i qualify ? i am confused with the rules and most of the solicitors don't have an answer. i don't want my application to get rejected.

[zimba]

You seem to have held valid visas since 2017. So whether you qualify or not will have to be determined from the date you will choose to apply for ILR. This makes it a bit complicated. I can see your visa is valid till 10/10/2024. So I will start from there.

STEP 1: Assume a date you want to apply for ILR, let's start from 10/10/2024. So 10/10/2019 to 10/10/2024. This is your five years period.
STEP 2: You need to check if there is ANY '365 days period' in that 5 years for which you have more than 180 days of absence ??
STEP 3: If the answer in the previous step is NO, then you move the assumed ILR DATE by one day backwards and start again from step STEP 2. (i.e you start from 09/10/2024 and now your five-year period is 09/10/2019 to 09/10/2024, and so on)

You keep moving the assumed ILR date backwards until you find the earliest date that is suitable for the ILR application, where you do not fail the absence limit

[Blazer1]

Thanks zimba for making it so simple.

[secret.simon]

I think that your estimation of using 4th November 2019 as the starting point was spot on.

Calculating absences is a mathematical exercise and I approached it in this manner.

14th May 2020 was the last day of any extended long period of leave. If you count backwards 180 days of absence from that date, you would come to approximately 165 days leave by 4th November 2019.

Therefore, if you take your starting point as 4th November 2019, you would not have absence of more than 180 days in any 12 month rolling period since then. Which would make your five year period end on 4th November 2024.

Felicitously, you have a visa valid till 10th October 2024. Factoring in that you are allowed to apply 28 days before the date of completing five years, you can apply between 8th October 2024 and 10th October 2024.

PS: You can, in theory, apply up to 15 days earlier, because even then, your absences would be (just) under 180 days of absences in any rolling period. But while there is no rule requiring that the start of the five year period needs to be the UK (for immigration applications), it may just delay your ILR appoval while the caseworker double-checks that detail. Better to start it from a date when you were in the UK.

[Blazer1]

Hello Simon, many thanks for your reply. I appreciate you taking out the time to analyse the dates and confirming 4/11/2019 as the starting point.
When I spoke with a reliable solicitor, I was informed that because of my profession I had to be back in my home country and hence I can apply for my ILR in 2023. My case is unique as explained by the solicitor because I am a commercial pilot. What do you guys think ? Shall I go ahead and apply in 2023 or wait till 2024 ?

[secret.simon]

There are some exemptions for naturalisation based on one's job (and even then, I believe that the expectation is that the job is based in the UK, so if you were a commercial pilot for a UK based airline, etc), but, to the best of my knowledge, for immigration purposes, an absence from the UK is an absence.

Keep in mind that naturalisation and immigration are separate processes, under different laws, with different requirements, etc. The immigration pathway ends at ILR.

Check with the solicitor if they are sure that the job exception applies to immigration applications as well and if so, to refer you to the relevant passage from a Home Office caseworker guidance (and could you please post that reference and caseworker guidance here).

[Blazer1]

I was working for a Non UK airline. And yes I agree with you that absences are absences !
How can I get case worker guidance ? It’s only after I file my application ?
Well the only problem with all the solicitors in the UK is that they give all the information and leave the final responsibility of taking the decision on the applicant.

[AmazonianX]

I was working for a Non UK airline. And yes I agree with you that absences are absences !
How can I get case worker guidance ? It’s only after I file my application ?
Well the only problem with all the solicitors in the UK is that they give all the information and leave the final responsibility of taking the decision on the applicant. Candidly, it is not a problem, ultimately the decision on how to proceed lies with you the applicant or client using the solicitor's services.

[secret.simon]

How can I get case worker guidance ?

The relevant caseworker guidances are all available on the Gov.UK website. You can just google for them, though you would first need to know what to google for

But in this case, if you are consulting a solicitor, you could ask them for a link to the relevant caseworker guidance and go through it with them.

As I mentioned, I know that there are some exceptions for absences in the Naturalisation caseworker guidance, one of which is

the excess absences were an unavoidable consequence of the nature of the applicant’s career, such as a merchant seaman or employment with a multinational company based in the UK with frequent travel abroad

But again, naturalisation and immigration are two different and separate legal processes, with different requirements. And I do not think a parallel exemption exists for immigration applications, specifically for PBS Dependents applications. But again, I am open to being persuaded otherwise if the solicitor can provide some proof of their assertion, such as a link to a relevant caseworker guidance.

You could show the solicitor this thread and ask them their thoughts on it.

Well the only problem with all the solicitors in the UK is that they give all the information and leave the final responsibility of taking the decision on the applicant.

I'd hope so!! I would not want my life run by actions taken by lawyers on my behalf. Their job is to offer me advice and allow me the space and the knowledge to take the decision for myself. It is not their role to take decisions for the client (unless you give them the power-of-attorney to act on your behalf), but to help the client in implementing the client's decision in a legal manner.

PS: I've glanced through the Continuous residence caseworker guidance and your solicitor may be relying on the same Rules that CR001 has already told you above do not apply to you.

where an applicant is applying under Appendix Settlement Family Life, they may be absent for the purposes of work, study or supporting family overseas, so long as the family have throughout the period of absence maintained a family life in the UK and the UK remained their place of permanent residence

CR001 had stated in her first reply to you that your visa is not issued under Appendix Family Life (which is the visa pathway for family members of people on ILR or British citizens).

[Blazer1]

hello simon.
many thanks for that detailed explanation.
I guess I will have to wait till 2024 as I am not eligible as per the CR appendix