New residence requirement for ILR as a PBS dependent

[HJPatel-1950]

Hi,

I came across below mentioned recent change to immigration rules on internet and I would appreciate if other members could comment/confirm.

Reading through below mentioned article, my understanding is that from 24/11/16
Tier 1 G dependent applying for ILR can not be out of country for more than 180 days in order to qualify for ILR but I am not sure whether it is also applicable to applicants who got their initial leave prior to 9 July 2012. Can someone confirm these please.

"ILR applications submitted before 24 November 2016

Prior to 24 November 2016, sub-paragraph (d) of paragraph 319E stated that if the applicant was granted leave under the rules in place after 9 July 2012 then 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 a continuous period of 5 years, during which time the applicant must:

(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,

(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e), and

(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.

Absent from paragraph 319E was any requirement for the dependent partner of a points-based system migrant to have spent any minimum period of time in the UK as a precondition to qualifying for indefinite leave to remain.

The new ILR residence requirement for PBS dependent partners

An amendment to the Immigration Rules introduced by Statement of Changes in Immigration Rules HC667 has today introduced a new residence requirement for applications for ILR as a PBS dependent partner made from 24 November 2016.

In paragraph 319E(d)(ii), the following provision has been inserted after (c) above: “In this sub-paragraph “continuous” means an unbroken period and for this purpose a period shall not be considered to have been broken in any of the circumstances set out in paragraph 245AAA(a)(i) to (iii).”.

Interestingly, this new sub-paragraph did not receive any detailed consideration in the Explanatory Memorandum to the Statement of Changes HC667. This is surprising given that paragraph 245AAA sets out general requirements for indefinite leave to remain and, at sub-paragraph (a), provides a definition of “continuous period of 5 years lawfully in the UK”. With one limited exception (relating to the Ebola crisis), a period with valid leave is only not to be considered broken where the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain.

It follows from the above-mentioned amendment to paragraph 319E(d)(ii) that a period with valid leave will be considered broken and therefore not “continuous” for the purpose of a settlement application where the Tier 1 Investor or Tier 1 Entrepreneur dependent partner has been absent from the UK for a period of 181 days or more in any of the five consecutive 12 month periods preceding the date of the application for indefinite leave to remain. Put another way, in order to qualify for indefinite leave to remain, partners of Tier 1 Investor and Tier 1 Entrepreneur migrants must not have had more than 180 days absent from the UK during each 12 months of the continuous period.

This new residence requirement for ILR as a PBS dependent partner takes effect from 24 November 2016 and applies to all applications for indefinite leave to remain as a dependent of a points-based system migrant (including applications by Tier 1 (Investor) dependents, Tier 1 (Entrepreneur) dependents, Tier 2 dependents and Tier 4 Student dependents) made on or after 24 November 2016.

All absences from the UK will need to be listed on the settlement application form, as will the reasons for those absences. However, irrespective of the reason(s) for one or more absences from the United Kingdom, they will still be counted towards the maximum 180 days."

[HJPatel-1950]

Senior Members, please help

Would new residence requirement for ILR applicable to Tier 1 G dependent who got initial leave granted and came in UK prior to 9 July 2012 and have been extending the visa under same category since then.

Thanks

[HJPatel-1950]

Dear Senior Members,

Just noted in statement of changes in immigration rules

"8.21. In paragraph 319E(d)(ii) insert after (c):
“In this sub-paragraph “continuous” means an unbroken period and for this
purpose a period shall not be considered to have been broken in any of the
circumstances set out in paragraph 245AAA(a)(i) to (iii).”.

Does it mean it is not applicable to applicants falling under
below mentioned 319E(d)(i) para

(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

[vinny]

The term 'continuous leave' didn't appear to be properly defined previously. Now, as you have noticed, they have apparently tighten up the interpretation. I think that it would apply to all of 319E(d).

[HJPatel-1950]

Dear Vinny,

Many thanks for your response.

I think I agree with your conclusion.

I was trying get some clarification from Home office as well but did not had much joy in it. Guy over the phone was confused and stated me that there were no amendment to the rules regarding PBS dependent in Nov 16. He further stated after checking with help desk that 180 days rules was always applicable.

I got in touch with a solicitor who stated that under transitional provision for family members, my wife's case will still fall under the old rules applicable pre July 2012. This is contradicting and very confusing now.

My wife came to UK in May 2012 and since than she has been out of the country twice (on Maternity) first time for 18 months and second time for 9 months but her initial leave never got expired and we continued extending under same category. She has been residing in UK since May 2016 with me along with two children.

All three dependent's visas are expiring in Feb 17. I am in dilemma now whether to take the risk and apply
for same day service for my wife's ILR application and then based the outcome make a postal application for my children. My workings are, If ILR application gets refused I lose £2K and if it gets approved I save £7K. Please correct me if I am missing something.

I was also trying to find on forum whether there are any recent refusal which could confirm/assist me
in making my decision but could not find any. Kindly let me know if you have come across any recent ILR rejections for applicants falling under Pre July 2012 category and due to break in residency.

Million thanks for your assistance.

[be123+]

Dear Vinny,

Many thanks for your response.

I think I agree with your conclusion.

I was trying get some clarification from Home office as well but did not had much joy in it. Guy over the phone was confused and stated me that there were no amendment to the rules regarding PBS dependent in Nov 16. He further stated after checking with help desk that 180 days rules was always applicable.

I got in touch with a solicitor who stated that under transitional provision for family members, my wife's case will still fall under the old rules applicable pre July 2012. This is contradicting and very confusing now.

My wife came to UK in May 2012 and since than she has been out of the country twice (on Maternity) first time for 18 months and second time for 9 months but her initial leave never got expired and we continued extending under same category. She has been residing in UK since May 2016 with me along with two children.

All three dependent's visas are expiring in Feb 17. I am in dilemma now whether to take the risk and apply
for same day service for my wife's ILR application and then based the outcome make a postal application for my children. My workings are, If ILR application gets refused I lose £2K and if it gets approved I save £7K. Please correct me if I am missing something.

I was also trying to find on forum whether there are any recent refusal which could confirm/assist me
in making my decision but could not find any. Kindly let me know if you have come across any recent ILR rejections for applicants falling under Pre July 2012 category and due to break in residency.

Million thanks for your assistance.

My understanding is to be able to apply ILR, you're not allowed to spend more than 180 days for one time as this would break as continuous stay.

[joefreddy1906]

Hi HJPatel-1950

Can you please let me know what happened to your spouse and children ILR application. Did they approve the visa even if they were out of the country for more than 180 days. Also did you use postal or same day visa.

Thanks
Joseph

Dear Vinny,

Many thanks for your response.

I think I agree with your conclusion.

I was trying get some clarification from Home office as well but did not had much joy in it. Guy over the phone was confused and stated me that there were no amendment to the rules regarding PBS dependent in Nov 16. He further stated after checking with help desk that 180 days rules was always applicable.

I got in touch with a solicitor who stated that under transitional provision for family members, my wife's case will still fall under the old rules applicable pre July 2012. This is contradicting and very confusing now.

My wife came to UK in May 2012 and since than she has been out of the country twice (on Maternity) first time for 18 months and second time for 9 months but her initial leave never got expired and we continued extending under same category. She has been residing in UK since May 2016 with me along with two children.

All three dependent's visas are expiring in Feb 17. I am in dilemma now whether to take the risk and apply
for same day service for my wife's ILR application and then based the outcome make a postal application for my children. My workings are, If ILR application gets refused I lose £2K and if it gets approved I save £7K. Please correct me if I am missing something.

I was also trying to find on forum whether there are any recent refusal which could confirm/assist me
in making my decision but could not find any. Kindly let me know if you have come across any recent ILR rejections for applicants falling under Pre July 2012 category and due to break in residency.

Million thanks for your assistance.