ILR dependent query (10 months gap) - ILR Success Solihull

[Sep08T1Applicant]

My wife and daughter got tier1 dependent visa in January 2009 she joined me here in march 2009 I got tier 1 extension in aug 2011 my wife and daughter both applied for extension in oct 2011 but due to some circumstances she had to go back home therefore we withdrew her application with my daughter and they both travelled back to home country in december 2011, she stayed over there for 10 months and applied for dependant visa and came here in October 2012 I am applying my ILR in October will she also eligible with my application due this year or she has to apply FLR(m). Please Gurus or senior members shed some light.

Thanks in advance.

[Sep08T1Applicant]

Hope to hear from some the experts.


Thanks in advance.

[vinny]

See also Dependants of ILR (economic, 5 year route) applicants. When did they apply for dependant visas in 2012?

[Sep08T1Applicant]

Thank you so much vinny for your response. They applied thier visas in august 2012 and got visas in october 2012. since then they are living with me.

[Sep08T1Applicant]

Thank you Vinny, it is quite helpful. I have read that and that clarifies most of the issues in my head apart from one. The thing which makes me to think is my wife got EC after July 2012 where probationary period for dependants changed from 2 to 5 years, even though my wife was here with me since April 2006 not as my dependant. Now my question is will I have to show 5 years cohabiting documents or 2 years, please Gurus or senior members can you comment?
Kind regards

[vinny]

See also 319E(d).

[Sep08T1Applicant]

Thank you very much for your response and for the link. I am back again with two more question.

1) I have read it and through that I understand my wife falls in 5 years probationary period regardless of my wife's stay since 2006 as a student (my wife) and then Tier 1 dependant January 2009 as her recent EC was issued after 9 July 2012, is this correct?

By looking at the link provided by you 319E(d):

"(c) have spent the remainder of the 5 year period, where applicable, as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules. "

2) If I understood it correctly then I can include her continuous 5 years period for the time she was not my dependant but lawfully she was staying in UK as a student and we were living together (married), if that is the case then we have to include cohabitation documents to prove this, am I correct in saying that?

Thanks in advance

[Sep08T1Applicant]

If anyone can please reply.

[vinny]

I think that 319E(d)(ii)(c) implies that she must also have leave as your dependant spouse/Unmarried partner. Else, it would unnecessary just repeat the initial part of 319E(d).

[Sep08T1Applicant]

Hi Vinny,
Thank you very much for your inputs. I am just worried as per reply from ukba clearly states that they will not consider my wife initial entry clearance and they said 5 years will be started from her last entry clearance, is there any thing I can do or the rule is clear and I have to wait for 5 years?
Please kindly comment and please accept my apologies for keep asking it again and again
Kind regards

[geriatrix]

As Vinny has already stated, the reference to "spouse or civil partner, unmarried or same-gender partner" in 319E(d)(ii)(c) refers to the "immigration status" of the person as "spouse or civil partner, unmarried or same-gender partner" rather than just their "relationship" as "spouse or civil partner, unmarried or same-gender partner".

She can continue to extend her leave as a PBS dependant before her current leave expires - even if you apply for and are granted settlement in Oct. 2013). No need to switch to FLR(M) unless she is a doctor / dentist aiming to work in a training post.

So, the question remains whether she can apply for settlement (at the earliest) in 2013 or after 5th anniversary of her entry as a PBS dependant in 2012.

[Sep08T1Applicant]

As Vinny has already stated, the reference to "spouse or civil partner, unmarried or same-gender partner" in 319E(d)(ii)(c) refers to the "immigration status" of the person as "spouse or civil partner, unmarried or same-gender partner" rather than just their "relationship" as "spouse or civil partner, unmarried or same-gender partner".

She can continue to extend her leave as a PBS dependant before her current leave expires - even if you apply for and are granted settlement in Oct. 2013). No need to switch to FLR(M) unless she is a doctor / dentist aiming to work in a training post.

So, the question remains whether she can apply for settlement (at the earliest) in 2013 or after 5th anniversary of her entry as a PBS dependant in 2012.

Quiet right, thanks for the response sushdmehta but please read it through as my concern is about initial entry clearance which in January 2009 and as per that my dependant fifth anniversary will be next year in November. I did clearly mention after UKBA response and Vinny's response about dependant not just in relationship

[geriatrix]

I have read it through and responded only after that.

319E(d)(i)(b) states

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years

AIUI, continuous leave = continuous immigration leave either as leave to enter or leave to remain. And your wife had "no leave" between 2011-2012, which is the ambiguous area in context.

Take a case of a PBS dependant who enters UK first time as a PBS dependant on 01-July-08 and returns home within a week. That person remains outside the UK for (almost) 2 years, applies for entry clearance in May-10 and returns to UK on 01-June-10 just before the main migrant gets ready to apply for settlement. Now, do you think UKBA will grant the dependant settlement just because "he/she has been married" to the main migrant during his/her absence from the UK? They will refuse it ..... but it may be overturned by a judge in an appeal.

I have tried to find the definition of "continuous leave" in context but have been unable to (just as Vinny) and my query to the Settlement Operational Policy team soon after the new rules were published has remained unanswered. But my personal understanding is as I have mentioned above.

Absence of clarity in such (supposedly ambiguous) immigration rule means that the end result is down to how the case worker will interpret the rule (in absence of any clear guideline available to him). If he thinks like me, the application will be refused. If he has the same opinion as you, the application will be approved.

IMHO ....


The risk is yours.

[Sep08T1Applicant]

I have read it through and responded only after that.

319E(d)(i)(b) states

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years

AIUI, continuous leave = continuous immigration leave either as leave to enter or leave to remain. And your wife had "no leave" between 2011-2012, which is the ambiguous area in context.

Take a case of a PBS dependant who enters UK first time as a PBS dependant on 01-July-08 and returns home within a week. That person remains outside the UK for (almost) 2 years, applies for entry clearance in May-10 and returns to UK on 01-June-10 just before the main migrant gets ready to apply for settlement. Now, do you think UKBA will grant the dependant settlement just because "he/she has been married" to the main migrant during his/her absence from the UK? They will refuse it ..... but it may be overturned by a judge in an appeal.

I have tried to find the definition of "continuous leave" in context but have been unable to (just as Vinny) and my query to the Settlement Operational Policy team soon after the new rules were published has remained unanswered. But my personal understanding is as I have mentioned above.

Absence of clarity in such (supposedly ambiguous) immigration rule means that the end result is down to how the case worker will interpret the rule (in absence of any clear guideline available to him). If he thinks like me, the application will be refused. If he has the same opinion as you, the application will be approved.

IMHO ....


The risk is yours.

I appreciate your concerns and thanks very much for your time sushdmehta, you are quoting reference for the rule before 9th July 2012 which does stress on "continuos leave" - so far this is not in 319E(d)(ii) , please kindly refer discussion I had
However, there isn't any 'continuous leave' requirement in 319E(d)(ii).
Also, I am just trying to see whether I can proceed with this or not, you are absolutely right about the risk factor. Yes if it's rule in place as you have quoted before 9th July 2012 then I do agree with you case worker will straight away refuse as it is meant to be continuos leave but there is a clear indication in 319E(d)(ii) you can combine provided your dependant should be dependant visa wise as Vinny highlighted to me as well as you.

[geriatrix]

Has your wife ever applied for leave as a dependant in any immigration category other than as a "PBS dependant"?

Do note that HSMP between Nov-2006 and 2008 is considered "PBS category", so if you applied for HSMP during this time and came to UK on that basis, your wife would have applied for "PBS dependant" leave only - irrespective of the form she may used at that time.

[Sep08T1Applicant]

Has your wife ever applied for leave as a dependant in any immigration category other than as a "PBS dependant"?

Do note that HSMP between Nov-2006 and 2008 is considered "PBS category".

Thanks very much, I really appreciate your time and responses.
No, she was Tier 1 dependant since 2009 and before that student visa not my dependant

Yes, mthat's true, I do think about that point quite few times and that makes me think I cannot combine leave but there is still a small hope there. 319E(d)(ii)(c) specifically mentioned about the partner and main migrant leave but doesn't specifically states about dependant leave (Just my interpretation - still seeking clarification from UKBA)

[geriatrix]

No, she was Tier 1 dependant since 2009 and before that student visa not my dependant

So 319E(d)(ii)(c) does not apply anyway - she has never had leave as dependant in any other (non-PBS) immigration category.

The term "dependant" is generally used to refer to spouse or civil partner, unmarried or same-gender partner, and child(ren) of "PBS" migrant, which is covered by 319E(d)(ii)(b).

[Sep08T1Applicant]

No, she was Tier 1 dependant since 2009 and before that student visa not my dependant

So 319E(d)(ii)(c) does not apply anyway - she has never had leave as dependant in any other (non-PBS) immigration category.

The term "dependant" is generally used to refer to spouse or civil partner, unmarried or same-gender partner, and child(ren) of "PBS" migrant, which is covered by 319E(d)(ii)(b).

Yes, I am aware of this and that's the basis of whole discussion, I would really like to thank you sushdmehta for your responses. My initial thoughts and interpretation of the rule is exactly what you have mentioned and got more clarification when UKBA replied but when I saw some discussion in the forum about initial entry clearances as PBS dependant and that gives me a bit of hope but still do appreciate your valuable inputs and at the same time I would like to thank Vinny as well. I did mention this in my old posts that its but unfair and UKBA should accommodate people not on dependant for 1-2 week as in your example quoted above, they could have made some provision for people who lived, worked and contributed towards society and would have considered their previous legitimate PBS dependant stay counted towards 5 years probation period and that is simply not the case.
Again, don't take me wrong, I really appreciate your valuable responses and the time consumed, it's a harsh truth and we have to live with it.
Also to highlight UKBA rules for 5 years probationary period doesn't require continuos leave to be mentioned as there is "and" between b and c, correct understanding of not combining leave if same category dependant.
Lastly, I was thinking of getting refusal and challenging it on the basis of 5 years probationary period which specifically mentioned about contribution to society, genuine relationship, subsisting marriage and previous stay as a dependant approx. 3 years but I have to rethink as there is a very less chance to it.
Thank you so much for clarifications sushdmehta

[geriatrix]

Assumption: "Continuous leave" means non-lapsing periods of leave (without any period of "no leave" in between) for the duration of the time period in question.

In such case, your wife cannot apply for settlement under 319E(d)(i). But may be able to apply for settlement in 2013 under 319E(d)(ii) because there appears to be no requirement of continuous leave under 319E(d)(ii) and your wife has been a PBS dependant since 2008 (therefore meets 319E(d)(ii)(b)).



Assumption: "Continuous leave" means consecutive periods of leave, but ignoring any period(s) of "no leave" in between, for the duration of the time period in question.

In such case, your wife may be able to apply for settlement in 2013 under 319E(d)(i) - she applied for PBS dependant in 2008, and then again as PBS dependant in 2012 (so condition of continuous leave as defined above is met and because the initial entry clearance was under the rules bfore 09-Jul-12, the 2 year rule applies). Also, she may also be eligible to apply for settlement in 2013 under 319E(d)(ii) - same reason as explained under the previous assumption above.



That said, UKBA may stick to their interpretation of the rule, as they have communicated in the their email to you:

Although your wife was granted leave under paragraph 319 before 9 July 2012, she left the UK and allowed that leave to expire. She then re-entered the UK with new entry clearance under paragraph 319 after 9 July 2012, therefore she cannot count her previous leave towards the qualifying period. Under the new rules, she will not be eligible to apply for ILR until she has held continuous leave in this category for a period of 5 years from her last entry clearance date.

and refuse the application.

The phrase "continuous leave" is not mentioned under 319E(d)(ii) but is mentioned in the UKBA policy guidance Family members of points-based system migrants (page 29).

five years – for applicants granted leave as the partner of a PBS migrant under the rules in place on or after 9 July 2012, who have since had continuous leave in that category and, during that period, have met all the requirements of paragraph 319C (a) to (e).

You can now understand why UKBA has given you the response they have given - because it is based on their policy guidance.



Possible option - Apply for settlement in 2013. If refused, appeal and claim that immigration rule 319E(d)(ii) does not specify "continuous leave", only the policy guidance does and policy guidance is not the law. Also add the argument that UKBA does not make clear the meaning of "continuous leave" (whether it is assumption 1 or assumption 2 that is a correct definition) and accordingly even 319E(d)(i) may be applicable.

[Sep08T1Applicant]

Hats off Sir for such a comprehensive post, i would like to thank you and appreciate your effort, time and explanation. Now, I fully understand why UKBA have replied as I completely overlooked the text in the policy guidance. Thank you so much for pointing it out. You have given me maximum hope. I do understand the downside and risk associated but I will prepare my wife case with me and take it from there. I will keep posted.

One more question (may be stupid)

Suppose I apply for my wife with me and she gets refusal based on that policy guidance, I will then do appeal against it and if that also gets refused, will there be any 28 days time to re-apply my wife as PBS dependant or she has to go back and re-apply another Entry clearance ( I am just asking for guidance) and this will then start her 5 years again from that time. In simple I am only scared of resetting the 5 years probationary period in case if they didn't give time to re-apply and my wife has to go back.

In the above scenario, do you think it will be better to get dependant application sorted first and then re-apply for my wife's ILR as her visa is expiring at the same time as mine?

I would personally like to thank you for your effort, time and dedication you are giving and same to other moderators, senior members and gurus.

[geriatrix]

When is your wife's current leave due to expire?

[Sep08T1Applicant]

Her visa is expiring on 26/10/13 same as mine, thanks

[geriatrix]

If the appeal is not allowed, then apply for leave to remain as PBS dependant within 28 days of the date of the appeal decision.

319C(j).


Make absolutely sure that there are no errors in this leave to remain (PBS dependant extension) application so that there is not even an iota of chance for the application to be refused / deemed invalid (e.g. - photo not meeting requirements, payment not going through, missing signature, etc.). If this (extension) application is refused, there will be no right to appeal and she will need to leave UK to apply from outside the UK and her ILR clock will be reset.

[Sep08T1Applicant]

Thank you sushdmehta, thank you soo much, I will make sure.
I would just like to thank you from the bottom of my heart.
I will soon start to prepare my case (cover letter for myself and my wife explaining the whole scenario - I might need some help I will keep posting), I am just thinking of:

1) mention the detail about her as I have mentioned earlier with the basis of 5 years probationary period and will not mention any thing related to rule (continuos leave omitted in rule)
Or
2) mention (1) and include 319E(d)(ii) as it doesn't say anything about continuos leave
Or
3) just (1) from the above and wait to see if they refuse it and keep it for appeal

Thanks so far and I know you are not obliged to answer but you have helped me already quite a lot

Kind regards

[Sep08T1Applicant]

Hi vinny and sushdmehta,

I got a reply from UKBA, reply is good but unfortunately it will soon be rectified as mentioned by UKBA in response below, as per their response my wife can amalgamate previous PBS dependant mentioned by vinny and clarified and supported by sushdmehta but as it's stand my wife is only eligible next year in December 2014 (5 Years) as her initial EC was issue in January 2009, please kindly suggest what to do next as the rule will be changed soon, here is the response:

Dear Sir,

Apologies for the delay in responding to your e mail enquiry. I have been checking with colleagues in Immigration Policy regarding paragraph 319E(d)(ii). I have confirmed with them that it was not the intention of the rules to permit dependants to be able to amalgamate two periods of leave, separated by a break in leave, in order to qualify for ILR after 2 years. There is therefore an error of omission in the current rules which will be amended at the earliest opportunity.

As it stands therefore, anyone applying under paragraph 319E(d)(ii) would be able to amalgamate previous leave as a PBS dependant, without it having to have been continuous.

I trust this answers your question.

Regards
Settlement, Family and Nationality Operational Policy & Rules |Operational Systems Transformation | Home Office