Dependent visa for Tier 1 PSW

[Deepak1]

Hi Friends,

I am currently on Tier 1 PSW which is expiring in October this year. My wife is on her independent Tier 1 PSW which is expiring in August this year. I am planning to make her as my dependent so that our visas have same expiry date. Plus my company will be sponsoring me for Tier 2 so it will be easier at that time to file her application along with mine. I have got few questions.
1. Can I apply for her to be my dependent from within the UK or she will have to leave the UK and make a fresh application to be my dependent?
2. What documents do I need to show?
3. How much maintenance is required?

Please answer these questions. Thanks

[Gagan1986]

Read this

http://www.ukba.homeoffice.gov.uk/sitec ... idance.pdf

http://www.ukba.homeoffice.gov.uk/visas ... 2/general/

[Lucapooka]

As an independent PBS migrant, she can't switch inside the UK. She can only apply to be your dependant (in whatever PBS category) from her home country.

[vinny]

Hi,

I received mine Tier 2 visa approval letter today along with my Son's whose application is also successful. But UKBA has refused my Wife's application on the grounds that she cannot apply for a dependant visa from in country as she was on PSW.
I understand that officially she isn't allowed to switch to a dependant category from a PSW visa but I was applying on the human grounds that if she has to go back to India, that means we will be separated as a family and I have to stay apart from my 3 month old son.
Now the rules are changing from 1st October in which she could have applied officially on human rights grounds and could have got the visa.
She has got a right to appeal. Can anyone please tell me that if I go ahead with right to appeal, then shall I mention that the rules are changing and they can't expect us to stay apart. Or shall I send her back to India and apply for a fresh entry clearance from there.
Any help will be appreciated. Thanks

If you were concerned about separation for a few weeks why didn't you accompany your wife and son to India? It doesn't make sense to refer to human rights in this situation. The HO decision was correct and an appeal will more than likely fail.

If your wife still has valid leave in October, or if her leave has not expired by more than 28 days, she can re-apply from the UK but don't exepect a refund of the original £434 application fee. Her new application will cost £578 (provided they don't increase the fees from October).

She can of course also apply from India.

[vinny]

Her UK born son was not required to apply for leave to remain.

If she has a right of appeal, then her leave has already expired or was curtailed. I don't see why an appeal will more than likely fail. With a 3 month old son, it may well succeed, as it may be disproportionate to expect her to travel.

[manci]

I don't see why an appeal will more than likely fail. With a 3 month old son, it may well succeed as it may be disproportionate to expect her to travel.

I think in this case the engagement of Article 8 would be rather tenuous as there doesn't seem to be anything to prevent the husband travelling with his wife (as there was in the Zhang case) and PBS visa processing times in India are only about 2 weeks. Also, I don't think undertaking an 8 hour flight with a 3 month old baby is such a hardship nowadays. On the other hand, because of the impending change in the rules no doubt influenced by the Zhang case, the tribunal may look favourably at the appeal. It is not possible to predict the outcome, one can only speculate.

Since the refusal was received on 16 September the 28 day period will extend to the time when the new rules are in force, the most practical way to get her PBS dependant leave would be to re-apply during this window (probably 1-14 October) rather than go through a longwinded appeal process with an uncertain outcome, the only downside being that if the re-application is also refused for whatever reason she will not get another right to appeal.

[Deepak1]

I don't see why an appeal will more than likely fail. With a 3 month old son, it may well succeed as it may be disproportionate to expect her to travel.

I think in this case the engagement of Article 8 would be rather tenuous as there doesn't seem to be anything to prevent the husband travelling with his wife (as there was in the Zhang case) and PBS visa processing times in India are only about 2 weeks. Also, I don't think undertaking an 8 hour flight with a 3 month old baby is such a hardship nowadays. On the other hand, because of the impending change in the rules no doubt influenced by the Zhang case, the tribunal may look favourably at the appeal. It is not possible to predict the outcome, one can only speculate.

Since the refusal was received on 16 September the 28 day period will extend to the time when the new rules are in force, the most practical way to get her PBS dependant leave would be to re-apply during this window (probably 1-14 October) rather than go through a longwinded appeal process with an uncertain outcome, the only downside being that if the re-application is also refused for whatever reason she will not get another right to appeal.

Hi, Thanks for your response. Appeal process will take months so I won't be going through that process. I am more than happy to re-apply for the dependant visa after 1st October but she will be considered as overstayed. In the refusal letter, it doesn't say when is she required to leave the UK by, but it does say that she is required to file the appeal within 10 working days or leave the country. So I am assuming that she has to leave the country within 10 working days? Am i right? You have mentioned that she can stay for 28 days. I haven't understood that properly. Can you explain please. Also just wanted to let you know that her original PSW visa expired on 26th August 2013, so when will she be considered as over stayer. Thanks for your help.

[manci]

Appeal process will take months so I won't be going through that process. I am more than happy to re-apply for the dependant visa after 1st October but she will be considered as overstayed. In the refusal letter, it doesn't say when is she required to leave the UK by, but it does say that she is required to file the appeal within 10 working days or leave the country. So I am assuming that she has to leave the country within 10 working days? Am i right? You have mentioned that she can stay for 28 days. I haven't understood that properly. Can you explain please. Also just wanted to let you know that her original PSW visa expired on 26th August 2013, so when will she be considered as over stayer. Thanks for your help.

If she made a valid application for her T2 dependant visa before its expiry on 26 August then she had leave under section 3C of the Immigration Act 1971 until the date of the refusal.

After the date of the refusal she has further leave provided she appeals within 10 working days.

If she doesn't appeal she is an overstayer from the date of the refusal. However, overstaying for no more than 28 days is disregarded and she can re-apply during this 28 day period. See the Addendum to the PBS dependant policy guidance (right at the front of the document, before the title page):
http://www.ukba.homeoffice.gov.uk/sitec ... olicy1.pdf

[Deepak1]

Appeal process will take months so I won't be going through that process. I am more than happy to re-apply for the dependant visa after 1st October but she will be considered as overstayed. In the refusal letter, it doesn't say when is she required to leave the UK by, but it does say that she is required to file the appeal within 10 working days or leave the country. So I am assuming that she has to leave the country within 10 working days? Am i right? You have mentioned that she can stay for 28 days. I haven't understood that properly. Can you explain please. Also just wanted to let you know that her original PSW visa expired on 26th August 2013, so when will she be considered as over stayer. Thanks for your help.

If she made a valid application for her T2 dependant visa before its expiry on 26 August then she had leave under section 3C of the Immigration Act 1971 until the date of the refusal.

After the date of the refusal she has further leave provided she appeals within 10 working days.

If she doesn't appeal she is an overstayer from the date of the refusal. However, overstaying for no more than 28 days is disregarded and she can re-apply during this 28 day period. See the Addendum to the PBS dependant policy guidance (right at the front of the document, before the title page):
http://www.ukba.homeoffice.gov.uk/sitec ... olicy1.pdf

Yes she applied on 19th August which is before her leave expired. The refusal date is 16th Sep i.e. it is the date when we received the refusal letter. She has to file the appeal latest by 29th sep.
Can you tell me please if paper hearing is any good. Don't want to appeal for oral hearing because the waiting times are at least few months.
Also if the paper hearing is rejected, then does she get time and option to file a fresh application. The reason I am asking this question is, I am thinking to file an appeal for paper hearing the outcome of which might come early and if they reject the appeal, then by that time, we will be in October and we can file a fresh application on the basis of the new rules. Can you please suggest if my approach is right or I should do something else. Thanks in advance.

[manci]

As suggested above, the easiest course is to re-apply after 1 October but within 28 days of the date of the refusal. Make sure that the application is 100% correct because if it is refused she will not get another right to appeal. You may want a professional to check the re-application before submitting it.

[Deepak1]

Hi,

I received mine Tier 2 visa approval letter today along with my Son's whose application is also successful. But UKBA has refused my Wife's application on the grounds that she cannot apply for a dependant visa from in country as she was on PSW.
I understand that officially she isn't allowed to switch to a dependant category from a PSW visa but I was applying on the human grounds that if she has to go back to India, that means we will be separated as a family and I have to stay apart from my 3 month old son.
Now the rules are changing from 1st October in which she could have applied officially on human rights grounds and could have got the visa.
She has got a right to appeal. Can anyone please tell me that if I go ahead with right to appeal, then shall I mention that the rules are changing and they can't expect us to stay apart. Or shall I send her back to India and apply for a fresh entry clearance from there.
Any help will be appreciated. Thanks

If you were concerned about separation for a few weeks why didn't you accompany your wife and son to India? It doesn't make sense to refer to human rights in this situation. The HO decision was correct and an appeal will more than likely fail.

If your wife still has valid leave in October, or if her leave has not expired by more than 28 days, she can re-apply from the UK but don't exepect a refund of the original £434 application fee. Her new application will cost £578 (provided they don't increase the fees from October).

She can of course also apply from India.

Hi,

I am planning to file an appeal for my wife who has been refused dependant visa because she was on PSW. Can you help me by answering few of my questions:
1. Do you think its better to file a paper appeal or Oral hearing. I personally think that paper appeal might be a better option because (a) It will be considered much faster than the Oral hearing. (b) My wife's case is strong.
2. If paper appeal is dismissed, then can she file a fresh application straight away because the rules are changing from 1st October and she can easily file for the dependant visa then.
3. Can I file the paper appeal myself or shall I get a solicitor to represent my case.

Please help me. Any help will be much appreciated.
Thanks in advance.

[vinny]

1. An oral hearing may be better in case the judge has any further questions.
2. Yes (319C(j)).
3. See also
Representation at Immigration Appeals.
Representing yourself in Court > Guide.
An Immigration professional may know caselaws better and put forward a stronger argument.

[Deepak1]

Hi,
I applied for my Tier 2 visa along with my wife and UK born son, Me and my son got the visa but my wife's dependant visa got refused on the basis that she can't apply for a dependant visa from a PSW visa. So we appealed that decision in September.
We made a paper appeal thinking that the decision will be taken quickly as compared to Oral hearing. But unfortunately the decision has still not be taken. Our original plan was to wait for paper appeal decision and then as soon as decision is taken and if it's refused, file a fresh application straight away because the rules got changed on 1st October.
Now as the Tribunal as already taken 2 months and we still don't know how long will it take for the Tribunal to take the decision, we are thinking to abandon the appeal and go back to India and file a fresh entry clearance for my wife's dependant visa.
Can you please tell me whether there is a problem in doing this because I have read that if there is an appeal pending then I can't file a fresh application. Does that rule apply for entry clearance as well?

Another question is UKBA has kept my wife's documents including her passport. How much notice do I have to give to UKBA before we can fly. I mean how long does UKBA take before giving the documents back so that we can fly?
Please advice. Thanks in advance