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

[geriatrix]

Options:

1. Apply for settlement before current leave expires. If refused, appeal and if appeal fails apply for extension as PBS dependant.
2. Apply for extension as PBS dependant before current leave expires. Apply for settlement in Dec-14. If refused, continue to extend PBS dependant leave until she becomes eligible for settlement in Oct.-17.
3. Keep extending as PBS dependant until she becomes eligible for settlement in Oct.-17.

Your choice.

[Sep08T1Applicant]

Thank you very much sushdmehta, I am going for (1), just looking for PEO dates - thank you for your effort, time and advise, thanks to Vinny as well.
Wish me luck, I will keep posted.

Regards

[vinny]

There is therefore an error of omission in the current rules which will be amended at the earliest opportunity.

133. In paragraph 319E(d)(ii), delete “the specified period is 5 years” and substitute “the specified period is a continuous period of 5 years”.

134. In paragraph 319E(d)(ii)(c), after “where applicable,” insert "with leave".

[Sep08T1Applicant]

There is therefore an error of omission in the current rules which will be amended at the earliest opportunity.

133. In paragraph 319E(d)(ii), delete “the specified period is 5 years” and substitute “the specified period is a continuous period of 5 years”.

134. In paragraph 319E(d)(ii)(c), after “where applicable,” insert "with leave".

Thank you very much for pointing it out. I was expecting this by end of october 2013. Can you if you don't mind clarify what is the change in 134 319E(d)(ii)©? My understanding since from start if there was no "and" between 319E(d)(ii) (b) and © then ( C ) can easliy allow currently on dependant visa EC after 9th July 2012 to amalgamate previous non-dependant leave but and is an issue - is that right understanding? Now, what change this "with leave" will play in ( c) - does it mean now it will not count non-dependant leaves?
Kind regards

[Amber]

From:

(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.

To

(c) have spent the remainder of the 5 year period, where applicable with leave, 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.

You think correctly.

[Sep08T1Applicant]

Thanks Amber, does this mean there was a chance earlier to amalgamate the previous leaves assuming dependant and non-dependant leaves and this change from "where applicable" to "with leave" will not now combine the non-dependant leaves?

[Amber]

Yes, the leave will have to be as the spouse or civil partner, unmarried or same-gender partner.

[Sep08T1Applicant]

Yes, the leave will have to be as the spouse or civil partner, unmarried or same-gender partner.

Thanks for being kind, I saw your reply after posting my reply.

[vinny]

I still don't seen any definition of "continuous" in this context (for dependants).

Is it based on 245AAA(a) or 276A or something completely different?

[Amber]

I know Vinny, it's difficult as to whether the 180 day rule would be used or merely that absences should be limited and for good reason?

[Sep08T1Applicant]

I still don't seen any definition of "continuous" in this context (for dependants).

Is it based on 245AAA(a) or 276A or something completely different?

Vinny - do you mean there is no mention of dependant as per the reading or it is I am taking it wrong.
The whole 319E keeps on saying spouse or civil partner, unmarried or same-sex partner of the main applicant - they should mention specifically dependant visa (is that what your concern is?)
Sushdmehta did mention about dependant to clarify my concern:
"The term "dependant" is generally used to refer to spouse or civil partner, unmarried or same-gender partner of "PBS" migrant, which is covered by 319E(d)(ii)(b)"

Is the above statement only applicable if "PBS dependant" or "dependant" written?
Or
The whole point I am talking about is wrong as mentioning spouse or civil partner, un-married or same-sex partner of the main applicant are anyway dependant visa's category and regardless of not mentioning the word "dependant" does mean the same.

I am not sure, sometimes 319E as a whole is ambiguous and sometimes you read in context it make some sense but not much.

[Sep08T1Applicant]

I know Vinny, it's difficult as to whether the 180 day rule would be used or merely that absences should be limited and for good reason?

Did you mean to say similar absences requirement will be in place for dependants as well?

[Sep08T1Applicant]

Hi vinny, sushdmehta, amber and seniors,

Please accept my apologies in advance. Kindly can anyone clarify the statement below:

"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."

(a) Does this mean - any leave (not necessarily PBS dependant) can be combined (considering my wife case - PBS dependant and non PBS dependant leaves)?

(b) Like in my wife's case if I can get appointment before 01/10/2013 then my wife is eligible to apply for ILR by combining
(i) her current PBS Dependant EC (1 Year 1 month),
(ii) previous PBS dependant EC (2 Years 8 months)
(iii) not PBS dependant leaves (2 Years 9 months)

All above can be combined if and only if dependant ILR application is made before 01/10/2013 (also able to provide evidences to show the relationship susbsisting and genuine)

Please kindly reply as this is the response from the UKBA and I will take this email copy with me if in case I get an appointment before 1st October 2013.

Kind regards

[Sep08T1Applicant]

Hi vinny, sushdmehta, amber, seniors, gururs and everyone,

First of all I would like to thanks Almighty Allah for the success of ours. I would also really like to thanks Vinny, Sushdmehta, Amber from the bottom of my heart.

Me and wife both got ILR Today. No interaction of case worker at all. We went yesterday night to stay at Ramada hotel with a little one.

Appointment was at 9:40 but they took us in 9:00am. Airport security style check except no belts and shoes removed. Token number given and was told to wait in the waiting area. Our number called, we went to submit all our document to a staff member. We took every single document since 2006 to prove the cohibition. As my wife's second entry clearance was after 9th July 2012. Member of staff a lady only took 3 documents from the current year, 3 documents from the previous year, she was not at all keen in more cohibition document but was very keen to take the children birth certificates (both kids born in UK). She again asked me have we given her birth certificates for the kids. Then she told us to go to the waiting area and wait for the biomterics to be done. Myself, i didn't submit any absences letter also didn't tick that box as well in the form and no personal letter for absences provided. My total absences were 110 out of which I worked for my employer from back home for around 69 days, pay was in UK account.

Once our biometric process completed, they asked us to leave the building around 10:30am and told us to come back after 2 hours around 12:30. We went outside with the little one, was very worried about we might get a call from case worker relates to my wife. We spend the time in Touchwood shopping centre with a hope to hear something good but still internally quite worried as we were thinking my wife's case is a refusal.

Now 12:30, we went inside, they just asked us our token number, as soon as I told them my token number they said Congratulations we have granted you ILR. You will get your biometrics in 7-10 working days.

Once again thanks to Vinny & Sushdmehta.

Please do let me know anybody needs any help, I will try my best to provide any help from my side.

Kind regards

[Sep08T1Applicant]

Super fast service, I did hear from lot of people on this forum about receiving BRP within 3 days but experienced Today. We received our BRPs Today.

[skum]

Congratulations!

I am still thinking what to do...Whether to apply for Tier 1 dependent or FLR(M). FLR(M) is cheaper but not sure I can directly apply without becoming PBS dependent first..

[vinny]

Already answered.

[Sep08T1Applicant]

Skum, thank you very much. I hope things get sorted for you as well.
I am still in a confusion when I re-read rule 319Ed(ii), I still think (even after amending the rule) this just needs recent stay as PBS dependant and you can combine your all previous stay provided if it is not broken.

vinny - one question, switching in-country will break the continuity?

I think dependants who have their most recent or current stay as PBS dependant will be eligible provided they have during their all specified period which is 5 years must:

a) be in relationship with Tier 1 migrant
b) have spent most recent part as tier 1 dependant
c) remainder of 5 years as a spouse

If in case switching to PBS dependant in-country with a valid leave before switching does not break the continuity then 5 years can be counted as continuous with most recent leave as PBS dependant, hence it is fully applicable. Just my understanding

Is this current understanding?

Please kindly shed some light

Kind regards

[vinny]

vinny - one question, switching in-country will break the continuity?

Probably no.

[Sep08T1Applicant]

vinny - one question, switching in-country will break the continuity?

Probably no.

Thanks vinny for your valuable response.
If that is the case then I think skum (considering skum scenario) can apply as PBS dependant and start her most recent stay as PBS dependant. Once skum's partner (Main applicant) applies for ILR then as per 319Ed(ii) skum will be eligible (only my understanding). Please also note d(ii) doesn't say the whole 5 year period should be PBS dependant. It only requires recent or current stay as PBS dependant with lawfully 5 years continuous UK residence and in a genuine relationship (just my understanding). If I understood d(ii) correctly then it gives more flexibility in terms of amalgamating previous dependant or non-dependant leaves (Still my understanding).

Kind regards

[deepg]

Sep08T1Applicant, mine is also similar case.

I know that your wife granted ILR, can you please clarify, is it granted because your wife have applied before 1st October ie., before the rules changes. or they considered your wife previous leave also?

which 2 years you have showed proof of documents for cohabitation? first 2 years or recent years ?

Thanks in advance.

[Sep08T1Applicant]

Sep08T1Applicant, mine is also similar case.

I know that your wife granted ILR, can you please clarify, is it granted because your wife have applied before 1st October ie., before the rules changes. or they considered your wife previous leave also?

which 2 years you have showed proof of documents for cohabitation? first 2 years or recent years ?

Thanks in advance.

Well, I did try to find out what made the case worker decide to grant ILR but unfortunately, it wasn't mentioned anywhere in the letter and there was no interaction with the case worker. I have worked out the following assumptions and it can be any one of the below or may be combinations:

My first assumption is case worker looked at my wife's second EC and amalgamate her previous dependant and non-dependant leaves as per the 319Ed(ii) rule in place before 01/10/2013. Although document were collected by the data entry/admin staff (not case worker) only for recent year and a year back - she was not very keen on having more documents. When we submitted the documents and left for biometrics and later left the premises all the time I was worried she didn't take her whole 5 years document. In short she only took recent one year prior 30/09/2013 documents (3 different document) and didn't bother to ask for more.

My second assumption probably they applied discretion based on my wife's first EC before 9th July. I actually made a cover letter and mentioned that as per 319(d)(i) my wife has already completed her 2 continuous years.

Thirdly - I have a strong feeling that we have emails from UKBA stating and mentioning about their mistakes in rule (319Ed(ii) before 01/10/2013)) and also in the email it was stated previous leave can be combined)

Although we took all the cohabitation documents since 2006 in case if they are required. Also to add, the documents collected by the admin staff were actually 1 year prior 30/09/2013 as my wife was not in the country since December 2011 till September 2012.

I hope this helps
kind regards

[deepg]

Thanks for detailed clarification.
My wife first entry clearance to UK is on 31/12/2008 and she stayed here until 27/08/2012 (completed more than 2 years) & second entry clearance is on 10/01/2013

Visa details are below:
UK Entry Clearance - 16-Dec-08 - 04-Nov-09
Residence Permit - 23-Sep-09 - 22-Sep-12
UK Entry Clearance - 21-Dec-12 - 03-Oct-15 (Applied from India as dependent after previous visa expired, but on the same category)

Since she has completed her 2 years stay in UK before 9th July, 2012, can we apply for ILR for her based on previous stay? or 2 years stay should be latest ? She was already granted visa as my dependent.

Thanks in advance.

[skum]

vinny - one question, switching in-country will break the continuity?

Probably no.

Thanks vinny for your valuable response.
If that is the case then I think skum (considering skum scenario) can apply as PBS dependant and start her most recent stay as PBS dependant. Once skum's partner (Main applicant) applies for ILR then as per 319Ed(ii) skum will be eligible (only my understanding). Please also note d(ii) doesn't say the whole 5 year period should be PBS dependant. It only requires recent or current stay as PBS dependant with lawfully 5 years continuous UK residence and in a genuine relationship (just my understanding). If I understood d(ii) correctly then it gives more flexibility in terms of amalgamating previous dependant or non-dependant leaves (Still my understanding).

Kind regards

Yes need more clarification regarding 319 E d (ii) b. I agree Sep08T1Applicant - it seems that I should be able to apply for ILR along with my husband? I have already completed five years in Uk and I I change to dependent before my husband's ILR application, I should be able to get ILR along with him.
I dont understand 319 E d (ii) c as well

[Sep08T1Applicant]

Hi deepg,

If you ask me this I have a really strong feeling your wife is eligible. However, it will be really difficult for anyone to comment on this as there is a definite risk involves. I was exactly in your situation and took a risk and applied but again it depends on your financial situation as I did think number of times because of the fees involved. There were number of factors as per the rule d(ii) which makes it difficult to be in dependant's application favour.

I think if you want you can try and prepare your wife's case. I will try and help you out in terms of preparing cover letter, read it and if you think you can take chance then do apply considering the fact that there will be a possibility of refusal as I assumed the same for my wife's case.

When you are planning to apply for your wife? If there is time then I will suggest you to write an email to UKBA and ask them to clarify d(ii) as it still not very clear. It will give us some more information that how the settlement policy staff interprets the rule after the amendments.

In my wife's case, I prepared a cover letter which focuses more on 319Ed(i) rather than 319Ed(ii) - I did try and draw case worker's attention on my wife's first EC as she completed more than 2 continuous years as PBS dependant and she did fulfil the requirement of d(i) although there is a break in continuity but that is after completing the requirement of d(i).

Your wife case is similar to my wife's only if your wife's application was before 01/10/2013 then you would have succesful. Now, they have amended the rule and I am only worried about the break your wife had in order to seek EC in Dec 2012 - Jan 2013 but still I think your wife's first EC should be considered.

It is all my understanding, please don't just blindly follow it but do some research, I really did try and put the facts here for you with a hope if you apply for your wife then she will get it with you. Please also go through this thread, read comments from sushdmehta and vinny (very useful).

Lastly, I would say it is totally up to you to decide and it does depend on the case worker interpretation and discretion as well of the rule.

I wish you all the best mate, I know it is difficult and very awkward situation but there is a hope and for that I am writing back to you.

Another Possibility
I think we can also explore the "Continuous leave" for 319Ed(ii) by looking at the factors which consider leave as broken. Is there any time limit to get the second EC within certain number of days? we have to find answers to these questions. Please can any seniors kindly comment?.