ILR dependent - pre 09/July/2012 Rule 319E d (i) - Query

[complicated_life]

I have been scouring this forum for a while now, ever since I found out about this predicament I am in.

I am due to be granted ILR in Feb 2014. I am applying based on the fact that I have had a Tier-1 (general) visa throughout with the following Dates

1) 23/02/2009 - 17/02/2012 (3 years)
2) 18/02/2012 - 18/02/2014 (2 years)

I seem to have all the requirements met for my ILR.
I got married in 2010 and my wife joined me on PBS dependent leave to enter on 09/03/2011 valid upto 17/02/2012 . She stayed with me till 28/09/2011 when she left the UK to go to her family for pregnancy and maternity reasons. She could not get back into the UK before her leave to enter expired, due to the birth of our daughter. She was then granted fresh leave to enter on 24/04/2012 and entered with my daughter on 04/06/2012

Hence these are the timelines :

Main_applicant :
1) 23/02/2009 - 17/02/2012 (3 years)
2) 18/02/2012 - 18/02/2014 (2 years)

Wife :
1) 09/03/2011 - 28/09/2011 (6 1/2 months) (PBS T1 dep leave to enter)
This expired on 17/02/2012 when she was out of the UK
2) 04/06/2012 - 18/02/2014 (21 months) (PBS T1 dep leave to enter)

She has lived with me in the UK for more than 24 months if I club these two stays together.
However, will the UKBA not consider the first stint ? Could anyone please tell my if my wife will be eligible to apply for ILR ? I have cohabitation documents and KOL and proof of English language requirements.




According to Rule 319 E d(i) :

(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) 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

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

More than one guru has quoted Ambassador's success . This is an old post in the pre 09/Jul/2012 Rule change era. But according to vinny's breakdown of the rule change , I believe that 319 E d(i) is still unbroken in my wife's case. Since
1) she was granted leave pre 09/Jul/2012, she has been staying here continuously with me as my dependent , without any breaks (thereby satisfying the continuous leave since pre 09/July/2012 clause
2) The period of 2 years can be added together, because the period in question refers to us living in a marital relationship in the UK and is not connected to the "continuous leave since 09/Jul/2012" clause

According to my understanding of the logic in the rule, its just that continuous refers to having unbroken leave to remain since being granted leave before 09/Jul/2012 . This is different from 319 E d (ii) which does say continuous period of 5 years in a marital relationship in the UK. Am I right in thinking that my wife will be able to apply for ILR along with me ?

[Damanisshallo]

Read through this thread and refer to transitional provision

[complicated_life]

Read through this thread and refer to transitional provision

Thanks for the links Damanisshallo.

I did read through them and trying to follow the chain of thought is, to say the least, confusing. I could not find anything that contradicts the way I was thinking in my original question. Sorry to be a pest, but I'm still not clear whether the requisite period of 2 years in a "marital/spousal/partner" relationship should have been unbroken or whether I can amalgamate the two periods to satisfy "in the UK" condition in 319 E d (i)


Also if I cannot amalgamate these periods and I have to extend the PBS dep visa ,then can I take a family appointment at a PEO for ILR for my daughter (my dep) and myself and with the same appointment ask for a PBS extension for my wife , or do I have to apply separately ?

[deepg]

My case also similar, but my wife stayed 2 years before the rules change in July 2012. We have applied ILR and my ILR was approved on 18th October.

http://www.immigrationboards.com/viewto ... highlight=

[complicated_life]

My case also similar, but my wife stayed 2 years before the rules change in July 2012. We have applied ILR and my ILR was approved on 18th October.

http://www.immigrationboards.com/viewto ... highlight=

Thanks for that link deepg. It almost fits my case, but like you said, she has had more than two years together with you during the first stint. Im just worried that in neither stint did my wife have 2 years or more. The second stint is agonizingly close and yet not close enough. Still from a reading of the rules, I still cant be sure either way.

I wouldnt mind the hassle of going for an extension and then ILR later if it was not for the extortionate amount of money the UKBA seems to be able to charge us with.

Anyone else either with a case similar to mine or more experienced /competent than me to comment ? Im asking for a case where two stints which are not adjacent to each other can be combined to make for two years under 319 E d(i). Im at my wits end now ! Please help.

[complicated_life]

I sent this to the settlement ops policy team. However, its been close to two months and they have not replied at all. It is getting close to decide which way to turn.

Dear Sir/Madam,

I am a Tier-1 (General) who would like to apply for Indefinite Leave to Remain in the UK. I would like to clarify the Law and guidance regarding "cohabitation" on my spouse's application for ILR as the dependent of a PBS Tier-1(G) Migrant who is applying for leave at the same time.


I, as the main applicant have leave with the following timeline :

(a) 18-Feb-2009 - 18-Feb-2012 (Tier-1(G) Main applicant) - 3 years
(b) 19-Feb-2012 - 18-Feb-2014 (Tier-1(G) Main applicant) - 2 years (Leave to remain extension)

My spouse entered the UK and lived with me, with Leave to Enter as a PBS Tier(1) Dependent between the following dates in line my own main applicant Timelines.
(c) 09-Mar-2011 - 28-Sept-2011 (Tier-1(G) Dep) Duration 6.5 months (Tier-1 Leave valid upto 18-Feb-2012 - see(a)) .She subsequently left the UK for maternity reasons and could not get back, before her Leave to Enter expired.
(d) 04-Jun-2012 - 18-Feb-2014 (Tier-1(G) Dep) Duration 20 months (Tier-1 Leave valid upto 18-Feb-2014 -see (b))

Since my spouse, re-entered the UK with PBS dependent leave before 09-Jul-2012 , I understand that, she falls under the transitional arrangements made for such dependents who applied and have held continuous leave since then.

The relevant paragraph, I am interested in clarifying, as regards my spouse's application is Part 8,Section 319E(d)(i)
(relevant to my spouses case) , which states that :

The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):
(i) If the applicant was granted leave as:
(a) the Partner of that Relevant Points Based System Migrant, or ...........
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


Am I correct in surmising that, if my wife has held unbroken "continuous leave" since she entered with leave to remain ,as PBS dependent, on 04-Jun-2012 (ie before 09-Jul-2012), the period in question is 2 years with the following conditions :
1) Living Together in a marriage/civil partnership/similar-to-marriage-or-civil-relationship
2) in the UK.

The rule in 319E(d)(i), as far as I read it, does not say that the period itself is to be continuous, just that the leave since being granted before 09-Jul-2012 should be "continuous" . This is as opposed to 319E(d)(ii) which does mention "continuous period of 5 years". Hence, can I amalgamate the two durations(mentioned in points (c) and (d)) that my spouse lived with me in the UK as my dependent to make up the "specified period" of "2 years" in a "marriage/civil-partnership" "in the UK" ?

I aologize for the long email, but I would like to obtain clarity on what the law says regarding this. I have spoken to at least two immigration advisors, who concur with being able to amalgamate two periods, as long as the leave has not expired post 09-Jul-2012. Could you please clarify this point ?

Thank you
xxxxxxx

I am starting to get worried as the dates are getting close and I need to make a decision soon as to which way I go. The sure-fire way (very expensive, considering the extortionate increases every year from UKBA) would be to extend my wife's PBS dep leave and then apply for settlement later after June 2014 or to apply together with me in Feb 2014.

Moderators or people more knowledgeable, please help me with suggestions according to your knowledge.

[complicated_life]

How would I go about booking a family appointment at the PEO, where myself and my daughter would apply on SET(O) and my spouse could apply to extend her PBS dependent application?

The online booking process only allows for everyone under SET(O) (for Tier-1 G to ILR) or individually for a PBS dependent. Previously in this forum, it had been suggested that a family booking could be done where the a PBS dependent who could not complete 2 years, could extend the PBS dependent visa, along with the main-applicant who is applying for ILR.

Someone please help

[complicated_life]

Well got the ILR stamp for me and my spouse at a PEO appointment in Liverpool PEO.
Date : 04/02/2014

Phew that was a relief. I was weighing up the pros and cons of going for an extension for my wife and applying for ILR only for my child and myself. In the end, I had a chat with two immigration advisors.

One of them agreed with the interpretation of the law that was given in that, only the period of being a dependent spouse since 09/07/2012 needs to be continous and not the entire two year period. He was non-committal but agreed with the interpretation that was given , but said that it would be safer to go along with an extension for my wife.

The second advisor said that as long as I had proof to show why my wife was away (maternity), it would not be a problem.

I went to the PEO and took a risk with the applciation. No quesions were asked and we were granted ILR within one and half hours.

I had taken with me as backup
1) a separate form (ILR for myself and child + PBS extension for spouse). Just in case they had decided to scupper my wife's application.
2) a copy of Rule 319 E d (i) , to try and persuade them about how the law was to be interpreted.
3) Copy of Alvi Case to show that rules would trump guidance
4) Extra cohabitation documents just in case they asked for more.
5) Evidence of subisting relationship during the time of separation (copies of Messenger and Skype calls)

Fortunately did not have to use it at all.

[vinny]

Congratulations!