ILR for dependents - 2 years or 5 years rule?

[crazybull3k]

Hi all,

Need some help understanding the rule related to dependents becoming eligible to apply for ILR.

I have ILR (based on Tier 1 General - 5 year route) and my wife and son is currently on Tier 1 General dependent Visa which runs out in December this year.

My wife's first entry to UK was in 2008 as my dependent (HSMP Dependent Partner visa) and then she has been on Tier 1 G Dependent ever since (renewed 3 times). There are large gaps in my wife's stay in the UK with one gap being around 3 years at a stretch between Dec 2009 to Dec 2012. Since Dec 2012 she was in the UK till date with around 30 days absence per year during school vacations. Given the large number of absence days from UK between 2009 and 2012, Will she qualify under the 2 year rule?

When I look at the immigration rules (copied below), I think my wife qualifies, but I would like to know the opinion of the members here.

Also my son entered UK in Dec 2012, so will the 5 year rule be applicable for him? So will he be eligible only in Dec 2017 OR are there exemptions in case of ILR for children?

https://www.gov.uk/guidance/immigration ... ly-members
319E. Requirements for indefinite leave to remain

(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
(ii) If (i) does not apply, the specified period is a continuous period of 5 years, during which 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.

[secret.simon]

There are large gaps in my wife's stay in the UK with one gap being around 3 years at a stretch between Dec 2009 to Dec 2012.

During these gaps, did she stay on the same visa throughout i.e. did she just keep getting extensions of existing visas?

Or did she apply for a new entry clearance visa in 2012?

To the best of my knowledge, if she applied for an entry clearance visa from outside the UK, her clock would be reset to the rules then in force as of the date of that application. If she extended her visas regularly, she would be covered by the rules in force as of the date of the first application in the chain of visas.

[crazybull3k]

To the best of my knowledge, if she applied for an entry clearance visa from outside the UK, her clock would be reset to the rules then in force as of the date of that application. If she extended her visas regularly, she would be covered by the rules in force as of the date of the first application in the chain of visas.

The initial Entry Clearance was issued in 2008 from outside the UK (HSMP Partner - Entry Clearance), then it was renewed in 2009 for another 3 years from the UK (Tier 1 Dependent Partner - Residence Permit), then it was renewed in 2012 from outside the UK (Tier 1 Dependent Partner - Entry Clearance) before the previous visa expired, then it was renewed in 2014 (Tier 1 Dependent Partner- Entry Clearance) from outside the UK when she was on her school vacation leave.

In this case will it be considered as Visa extensions (as there was no gaps in her visa validity since 2008) OR will each Visa that was issued from outside the UK will result in resetting the clock? So does it mean that based on the above case the clock reset in 2014 when the last Tier 1 Dependent Visa was issued?

[CR001]

What is the date her visa expired in 2012 and the date she applied for a new entry clearance visa in 2013?

You cannot extend a visa outside the UK.

[crazybull3k]

What is the date her visa expired in 2012 and the date she applied for a new entry clearance visa in 2013?

Visa 1 - HSMP Dependent - Entry Clearance - Issued on 26/Jun/2008 - Valid till 23/Sep/2009 (applied from outside UK)
Visa 2 - Tier 1 Dependent - Residence Permit - Issued on 29/Aug/2009 - Valid till 23/Sep/2012 (applied from UK)
Visa 3 - Tier 1 Dependent - Entry Clearance - Issued on 8/Aug/2012 - Valid till 23/Sep/2014 (applied from outside UK)
Visa 4 - Tier 1 Dependent - Entry Clearance - Issued on 8/Aug/2014 - Valid till 23/Sep/2017 (applied from outside UK)

[crazybull3k]

I called Home Office Visa and Immigration helpline on 0300 123 2241 and explained the case. The adviser checked with his supervisor and confirmed that as long as the Visa was renewed/extended before the expiry of the previously held visa, it will be fine. It doesn't matter if the visa renewal/extension was carried out from within or outside UK.

I plan to apply early Sept when my wife will completes 5Years in UK. Will keep this forum updated about the same. Thanks for all the help.