Complex Query Re Tier 1 (G) Dependent ILR - if someone can help

[bUser]

Hi

I already have ILR which was granted last year and previously I was on Tier 1 (G). My wife is still on Tier 1 (G) dependent visa and I am wondering if I can apply for ILR for my wife (and son's) based on the timelines below since she has two entry clearances. The initial one had the rule which said we had to wait 2 years for ILR and I think by the time she got the subsequent one it was 5 years rule for Tier 1 dependents. Her timelines are as follows

Initial arrival/departure - 5 Jun 12 / 5 Dec 12 (2 year ilr rule)
Subsequent EC/visa issued from outside UK on 12 Feb 14 (5 year rule)
Subsequent Arrival - 6 May 14
Her leave to remain is until 8th Jan 2018 (we have already done one extension)

1. I am wondering if I can apply for her ILR based on the two year rule (which was applicable at the time of her initial entry) at the time of expiry of her current visa as she will be in the UK for nearly 4 years?
2. If I apply for ILR and she doesn't get it because they say she had to wait 5 years then would they grant extension or would we lose all the fee and apply for extension again?

Any help to answer the queries above will be really appreciated.

Cheers

[CR001]

1. I am wondering if I can apply for her ILR based on the two year rule (which was applicable at the time of her initial entry) at the time of expiry of her current visa as she will be in the UK for nearly 4 years?

What date did her initial visa in 2012 expire??

Always useful if you are expecting free advice from strangers, to list all the visa start dates, visa expiry dates and date of entry and departure.

[bUser]

thanks for the reply and apologies for miss - her initial visa expired in Feb 2013 so there was a nearly one year gap in between the expiry and the issue of the subsequent visa (which was from outside the UK).

Would this help to answer the query, I am more than happy to provide more info. thanks

[CR001]

1. I am wondering if I can apply for her ILR based on the two year rule (which was applicable at the time of her initial entry) at the time of expiry of her current visa as she will be in the UK for nearly 4 years?

No, she cannot apply for ILR based on the 'old two year route' visa. That ship has sailed and been superceded by her new entry clearance in 2014. She will only qualify for ILR no sooner than within 28 days before 4th May 2019.

2. If I apply for ILR and she doesn't get it because they say she had to wait 5 years then would they grant extension or would we lose all the fee and apply for extension again?

She will be refused and you will lose the fee. If her visa has already expired by that time, she will be an overstayer. There are no appeal rights for PBS route applications.

[bUser]

Many thanks for your reply, much appreciated. I guess will have to spend the extra money then to get the extension first.

btw given that her visa was issued in Feb 2014 and she arrived within the 3 months period in the UK so I think her time will be counted backwards from Feb and we should be able to apply sometime in Jan 2019 .. may be I am wrong but would be great if CR001 or someone could clarify

[CR001]

btw given that her visa was issued in Feb 2014 and she arrived within the 3 months period in the UK so I think her time will be counted backwards from Feb and we should be able to apply sometime in Jan 2019 .. may be I am wrong but would be great if CR001 or someone could clarify

No, you are wrong. PBS Dependents residence starts counting from the date they ENTER the UK. The 3 months or 90 day concession DOES NOT apply to dependents.

Many have received refusals for their dependents thinking this concession applies.

[bUser]

Ah brilliant, I will look into this but looks like you saved me some fortune then .. may be not the answer I was looking for but really good to see that people like you are willing to help others .. really appreciate it mate!!!

[bUser]

Hi All

I applied for my dependants extension last month with a note to say that it will be great if I could be considered for ILR at this stage since if they use discretion and consider their first entry clearance (2 years rule to stay in the UK) or a total of 5 years on both visas then they could be granted ILR. I have now received this note from home office which I am not sure about since it could mean just apply for ILR and see what happens (in this case I could lose fee) or it means that in HOs opinion my dependants can be granted ILR (given other checks are fine) in which case I should just go ahead with varying the application.

The only reason I am a bit positive about this email is because I dont see any negative connotations - its almost encouraging me to apply (however I dont want to lose the fee if its just saying apply and see for yourself if we will grant you the ILR or not)

Will be great to know what others think as its really confusing for me and I intend to call HO on Monday but any expert opinion before that would be great.

"Good afternoon,

Thank you for your application dated 28 December 2017.

In regards to your request, for your wife and son to be considered under ILR as opposed to being considered as an extension of their leave, they would need to apply using a separate application in order to be considered under the indefinite leave to remain route. Once they have done this the current application would be varied to the ILR consideration and a refund would be issued. "

[CR001]

Ii is a generic reply, basically saying they would need to apply and be considered and processed under the ILR rules. There is no guarantee they will be successful.

She has more than a year between visa expiry and new entry clearance, which would have reset her clock.

It is your choice if you apply for ILR, but if she is refused and her current visa has expired, you have a problem. There won't be any appeal right if ILR is refused.

[bUser]

Hi CR001

Thanks for your comments and I think your point is very valid. We dont want to unnecessarily complicate things here (and that was the reason I didnt apply for ILR in the first instance and went for the extension)

I am going to reply to the note I got from HO and ask them specifically what happens if I apply for variation and our application for ILR is refused then would I get the PBS extension or not.

If the answer is vague, NO or they do not respond to my query then I am not going to vary the application however if they confirm in writing that in case of refusal of ILR we will be granted PBS extension (without paying fee two times - ILR rejection plus PBS extention) then that's the only case I will go for it.

Does this sound like a reasonable approach, if you/someone could comment?

thanks

[CR001]

if they confirm in writing that in case of refusal of ILR we will be granted PBS extension (without paying fee two times - ILR rejection plus PBS extention) then that's the only case I will go for it.

That won't happen. If you vary to ILR and ILR is refused, you lose the ILR fee and you will have to apply again for Tier 1 General dependent, if HO give you the opportunity to, and pay the visa and IHS fees again.

The risk you have is that if ILR is refused (if you vary) and her dependent visa has expired some time ago, she might have no other option but to apply for ILR dependent visa, which will reset her clock to zero and a new 5 year residence period.

[bUser]

FYI All - I went for the pbs dependent extension because switching to ILR application was risky enough for me.

special thx to CR001!