ILR with large gap

[kali2023]

Hi,
This question relates to my wife’s eligibility for ILR. As I understand from my previous post, it is not possible to get ILR if the absence is more than 180 days. My wife returned to the UK after being away for almost 2 years; before that, she was in the UK for 3.5 years. I understand that she is not eligible due to the large absence.

The reason she was outside the UK for 2 years: In 2021, my daughter was 3 years old and diagnosed with Autism. By 2022, we realized that the NHS was not very helpful in terms of speech therapy and other therapies. Since these early years are crucial for Autism therapies, my wife went back to India to get therapies for our daughter, such as speech, behavioral, and sensory therapies.

After being away for 2 years, she returned 2 months ago. I don’t think the Home Office will grant any discretion if I mention these details, but I am just checking in case there is any change.

Her current visa (Tier 2 Dependant) will expire in October 2024.

[CR001]

There has been no change to the rules. She is not eligible for ilr due to a very very long absence.

The reasons you state are not really exceptional either as NHS is available (maybe not as quickly as you want) or private health care if you have it or can afford it.

[kali2023]

Thanks for the reply.

I was looking at this thread

It says "There is no absence limits on spouse visa route for immigration which ILR is."


In my case, you are saying my wife is not eligible for ILR, but in the above case, it says she is eligible regardless of her absences. Could you please clarify?

Also, I received my UK citizenship/passport last year. If I need to review my wife’s visa extension, under which category should I apply? Should I extend her Tier 2 Dependant visa, or should I apply for a new visa as the spouse of a British citizen under a different category?

[CR001]

It says "There is no absence limits on spouse visa route for immigration which ILR is."

Your spouse doesn't hold a spouse settlement visa. She holds a Skilled Worker depednent visa. Different visas and different rules.

In my case, you are saying my wife is not eligible for ILR, but in the above case, it says she is eligible regardless of her absences. Could you please clarify?

Different visas have different rules. Your spouse doesn't hold a spouse visa under Appendix FM, so the mo absence rule doesn't apply to her.

Also, I received my UK citizenship/passport last year. If I need to review my wife’s visa extension, under which category should I apply? Should I extend her Tier 2 Dependant visa, or should I apply for a new visa as the spouse of a British citizen under a different category?

Either. Spouse visa has more requirements to meet than skilled worker dependent visa.

A spouse visa is for 2.5 years she will need 2 x 2.5 year visa for ilr.

A Skilled Worker dependent visa is an extension for 3 years and she will need 2 x 3 years visas.

[kali2023]

Oh, okay. Thanks! I thought all ILR applications had the same criteria. It is good to know that the spouse visa does not have such absence conditions for ILR.

Could you please point me to some liks where I can learn more about the spouse visa and its requirements?

Also, thank you for detailing the different scenarios. Filing under the spouse category would definitely be the best option for me.

[CR001]

https://www.gov.uk/uk-family-visa/partner-spouse

[kali2023]

Hello CR001,

If money is not a constraint, which route is both best and quickest for obtaining ILR? She returned to the UK on June 1, 2024, after a 2-year gap.

If I continue her on the existing visa (type of permit: Dependant Partner, Leave to Remain), she would be eligible for ILR around January 1, 2029. Am I correct?

If I apply for a Spouse Visa, she would have to wait another 5 years from the date of the Spouse Visa issuance, as the time spent on the PBS Dependant visa cannot be counted.

Is it possible to combine the time spent on different visas, such as the PBS Dependant visa and Spouse visa, to count towards the 5 years of continuous residence? I read somewhere on this forum/internet that we can't combine them.

[meself2]

Is it possible to combine the time spent on different visas, such as the PBS Dependant visa and Spouse visa, to count towards the 5 years of continuous residence?

No, not for your case.

You can combine them on 10 year route, but this route requires unbroken continuous residence (no absences for more than 180 days) so its not beneficial for you in any case.

[zimba]

There is no shortcut. She needs to complete her 5 years from scratch under a suitable route, as she does not meet the continuous residence requirement under any qualifying route.

[kali2023]

Thank to Zimbra and meself2,

Her current PBS Dependant visa is valid from 21-10-2021 to 22-10-2024.

She arrived in the UK on June 1, 2024, after a 2-year gap.

If I go with a PBS Dependant visa extension, can I calculate the 5-year residence period from January 2, 2024, to ensure that her return on June 1st is within 180 days?

So, the 5-year residence period would be starting from January 2, 2024, to January 1, 2029.

If I choose the Spouse visa and assume it is applied on October 21, 2024, she would have 5 years of visa coverage from October 21, 2024, to October 21, 2029.

Clearly, if I go with the PBS Dependant visa, she would be eligible for ILR 8 months earlier than if I go with the Spouse visa.

Could you please help me in making the decision? In the past, I have made mistakes with visas, so I would like to be careful and consider all options.

[zimba]

The PBS Tier 2 route no longer exists as it was replaced by the skilled worker visa. She will extend under the Skilled worker dependant visa to get ILR earlier as you correctly identified

[kali2023]

Hello Zimba, thanks for your response. Could you please clarify the questions below?

As my wife returned on June 1, 2024, after a 2-year gap, and assuming we extend her visa under the same category Here's my understanding:

1) I can go back 179 days from June 1, 2024.
2 )Therefore, her 5-year residence period would start from December 1, 2023.
3) So, her 5-year residence period would run from December 1, 2023, to December 1, 2028.
4) I can apply for ILR 28 days prior to completing 5 years of residence.
5) That means I could apply as early as November 3, 2028.

Clearly I can save 1 year when extending her current visa rather than going with Spouse visa.

Q1)
Is there any caveat stating that at the start of the 5-year residence period (i.e., December 1, 2023), she must have been physically present in the UK? Or does the residence period only start from her actual return on June 1, 2024?

Q2)
I am now a British citizen, and my daughter (who is still on a dependant visa like my wife) is eligible for disability allowance. Two years ago, her doctor advised us to apply for it, but I refrained as I was on a Skilled Worker visa and didn't want to encounter any issues. Now that my family has returned and I am a British citizen, can I apply for the disability allowance? Will applying for it affect my child's ILR application when the time comes as she will be under Skilled work dependant visa?

[zimba]

1) No need to focus on the start of her qualification period.
I just recently covered this for another applicant, so have a look here: viewtopic.php?t=350573#p2177201

2) If the child is subjected to public funds restrictions, then the child is not entitled to claim such payments