ILR SET(M) - dependant who is over 18

[PhuketBlue]

My family moved to the UK with me 4 and a half years go. My wife is on the 5-year route and so is my adopted son. Unfortunately the UK doesn't accept adoptions from his country so he had to go through the process with his mum. He was 16 when we moved and so could apply along with his mum. I am a British citizen by birth as are my 2 daughters.

Anyway, my wife and son's 5-year visas will end in June of next year and they would like to apply for ILR. It shouldn't be a problem for my wife but my son went back to his home country for 9 months to complete an intensive educational course that he needed for his profession. We had been informed at the time by a supposed immigration expert that this shouldn't be a problem as his passport isn't stamped out from the UK and isn't stamped into or out from his home country. So in effect he only has the stamp in his passport when he returned to the UK after his studies. So nothing to really say how long he had been away.

We hadn't realised though that him having been away for that amount of time would be more than is acceptable for ILR purposes.

Is there anyway around this or does being out of the country for over 180 days in a 12-month period automatically exclude him from ILR? Any suggestions as to what we can do from here?

Entirely my fault for not getting correct advice before he went.

[CR001]

My wife is on the 5-year route and so is my adopted son.

Which 5 year route exactly?? Spouse/child settlement visa (2 x 2.5 year visas) or PBS dependent visas??

There is more than one category and all routes are 5 years.

[PhuketBlue]

My wife is on the 5-year route and so is my adopted son.

Which 5 year route exactly?? Spouse/child settlement visa (2 x 2.5 year visas) or PBS dependent visas??

There is more than one category and all routes are 5 years.

Sorry I hadn't realised that. It was the spouse/child settlement visa (2 x 2.5 years).

[CR001]

There is no absence limit for spouse/child settlement visas.

The 180 days absence limit is ONLY applicable to PBS visa holders and their dependents.

[CR001]

As the child is over 18 now, make sure he is not leading an independent life, i.e. married or living on his own etc etc.

[PhuketBlue]

As the child is over 18 now, make sure he is not leading an independent life, i.e. married or living on his own etc etc.

It would be wonderful if that is correct. Everything I have read though seems to suggest that to apply for ILR requires him not to be out of the country for more than 180 days in a 12-month period . I have looked online but haven't been able to find anywhere that actually states contrary to this. I don't suppose you would know of a link that would confirm this?

He lives at home and has done for the whole time except for that 9 months of study (and even then his course and accommodation/living expenses were paid by us).

[CR001]

The link below details the changes to the PBS route.

indefinite-leave-to-remain/big-changes- ... 46559.html

For ILR on Set M, there is no absence limit and you won't find any mention of it as it is not relevant. For ILR, you are only required to declare absences, with no adverse effect on ILR.

[PhuketBlue]

The link below details the changes to the PBS route.

indefinite-leave-to-remain/big-changes- ... 46559.html

For ILR on Set M, there is no absence limit and you won't find any mention of it as it is not relevant. For ILR, you are only required to declare absences, with no adverse effect on ILR.

That has put my mind at rest. Thank you so much. Everything I have read seemed to be suggesting otherwise. Perhaps it was just referring to PBS route but it didn't mention that.

[CR001]

You're welcome.

Feel free to ask any further questions you might have.

[PhuketBlue]

You're welcome.

Feel free to ask any further questions you might have.

Thanks. Just one more question. If their current settlement visa expires on 2nd June, what is the earliest/latest they can apply for ILR and what would be their status if they don't have a decision by the 2nd June when their current visa expires?

[CR001]

What date did they enter the UK?

They can apply no sooner than within 28 days before the 5th anniversary of the entry to UK date. As long as they have an application submitted and pending, their existing visa conditions continue under Section 3c of the immigration rules, even if their visas expire while awaiting a decision from HO.

[PhuketBlue]

What date did they enter the UK?

They can apply no sooner than within 28 days before the 5th anniversary of the entry to UK date. As long as they have an application submitted and pending, their existing visa conditions continue under Section 3c of the immigration rules, even if their visas expire while awaiting a decision from HO.

They entered on 2nd June 2014 and the BRP says it expires 1st June 2019

[CR001]

They can apply anytime withing 28 days before 2nd June 2019.

[PhuketBlue]

They can apply anytime withing 28 days before 2nd June 2019.

Thanks again. You're a star!

[PhuketBlue]

As the child is over 18 now, make sure he is not leading an independent life, i.e. married or living on his own etc etc.

I have just spoken to an immigration solicitor who has confirmed what you said about there being no limits on absence for his route to ILR, so thanks for that.

They did raise another point that has confused me a little though. Apparently as he is over 18 it would have to be a discretionary application and he would have to be able to prove that he is still dependant on us and so he must still be living at home and not married etc as you mentioned above. However, they also said that he shouldn't be earning more than his expenses in order to show that he he is still dependent on his parents. As he's living at home his expenses are virtually zero, so that means he's going to have to quit his job until he has his ILR.

Seems bizarre to me that in order to be accepted he would have to stop earning and paying tax and NI etc. I'd have thought that they would prefer people that are contributing to the economy!

[PhuketBlue]

My wife and son moved to the UK with me 4 and a half years ago when he was 16. We are now looking at applying for ILR for them in a few months. Should (hopefully) be fairly straightforward for my wife but a bit confusing regarding my son as he will be 21 at the time of applying for ILR. Apparently as he is over 18 it would have to be a discretionary application and he would have to be able to prove that he is still dependant on us and so he must still be living at home and not married etc.

However, we have also been told that he shouldn't be earning more than his expenses in order to show that he he is still dependent on his parents. As he's living at home his expenses are virtually zero, so that means he's going to have to quit his job until he has his ILR.

Seems bizarre to me that in order to be accepted he would have to stop earning and paying tax and NI etc. I'd have thought that they would prefer people that are contributing to the economy!

Does anyone have any idea/experience of the above? It just doesn't seem right that he needs to not be working in order to be successful in his application.