When 5 year continuous period for settlement begins?

[2018Emily]

Hi, all.

As a Tier2 Dependant visa holder, I am currently preparing for ILR . Do you think I am eligible to apply for the ULR together with my husband? Thank you.

We got married before I came to the UK for the first time and lived together since September 2012. My husband's visa records:

2010-2013: Tier 4 Student
2013.9-2018.9: Tier 2 (general)

My visa records:
2012.8-2014.1: Tier 4 Student ( I got married before I came to the UK in 2012)
2013.10-2018.9 Tier 2 Dependent.

In 2016, my husband was asked by his employer whether applying for 3 years' visa or 2 years' one. After checking the government's website, we noticed the following parts:
" Your partnermay qualify if all of the following apply:
they have permission to be in the UK as your partner", we decided to extend only 2 years rather than 3 years. However, right now, some people said I have to stay in the same visa route to qualify for 5 years' eligibility, is this right?

I think as my husband's partner, I have permission to be in the UK since 2012 and have lived with my husband in the same address for more than five years, therefore I meet this requirement. Furthermore, the official document did not mention any route issue at that time and does not now.

Thank you for your help.

Kind regards,

[2018Emily]

Hi, further to the above situation, I found that I submitted my first Tier2 visa application in 23, Sep, 2013 which was issued on 16, Oct, 2013. Since my current visa will expire in 14, Sep, 2018, am I still eligible to apply for ILR if I submitted the application before 14, Sep, 2018? Thank you for your help.

[marcnath]

The requirement is that you should have lived together as a family for 5 years. It does not have to be the same visa but has to be a dependant visa throughout. So, your period as a Student Visa does not count towards the ILR 5 year period unless you were a T4 dependant.
Your dates are confusing. You say the student visa is until 2014.1, but T2 dependant starts at 2013.10, which is not possible as you can't have two types of visa at the same time.

[marcnath]

Hi, further to the above situation, I found that I submitted my first Tier2 visa application in 23, Sep, 2013 which was issued on 16, Oct, 2013. Since my current visa will expire in 14, Sep, 2018, am I still eligible to apply for ILR if I submitted the application before 14, Sep, 2018? Thank you for your help.

Strictly speaking no.

You can only apply for your ILR around 19th Sep 2018.
However, you can apply for your extension before 14th Sep and then apply to vary your application to ILR 1 week later.

[2018Emily]

Thank you very much for your help, Marcnath. It really helps.

I got married before I came to UK to study. Even though I applied for student visa at first, all the living fees including accommodation, food, etc. as well as tuition fees were provided wholly by my husband. Therefore, may I know, from your point of view, was I still be counted as a dependant if I have solid evidence? Thank you.

The motivation for me to come to the UK was to stay together with my husband, then perusing a degree at the same time. After submitting my dissertation, I came back to my country to reapply for Tier 2 dependant visa before my student visa expired. Therefore these two visas (student and dependant) existed at the same time since both of them were papers stick on my passport.

Besides, according to the Indefinite leave to remain: calculating continuous period in UK version 16.0,
"Pre 24 November 2016

The continuous period is maintained if the applicant either:
• leaves the UK with or without valid leave, but applies for new entry clearance
within 28 days of their leave expiry date, is granted and re-enters the UK using
that entry clearance
• leaves the UK with valid leave and re-enters the UK whilst that leave remains
valid
If the applicant’s leave expires whilst they are outside the UK and they apply for new
entry clearance more than 28 days after their previous leave expires, the continuous
period is broken and leave is not aggregated. "

According to this paragraph, I think I meet the five years continuous period.

Furthermore, according to Family members of points-based system migrants Version 13.0,
Leave to remain will normally be granted for either:
1. the same period as the PBS migrant;
2. a period of 3 years if the PBS migrant:
who has indefinite leave to remain
who has become a British citizen,
However, my first Tier 2 visa only covered less period that that of my husband, which made 4 days shortage of my five year continuance period. Otherwise, I will qualify holding a Tier 2 dependant visa for five years.

What do you think? Many thanks for your precious time and have a nice weekend.

[marcnath]

Couple of points
1. Under UK law, you can't have two types of entry visa. So, it doesn't matter whether you had two visa stamped on your passport, when you entered the country on you T2 dependant visa, the T4 visa becomes automatically invalid.
2. The applicable rule for you is Section 319E of the immigration rules, which says:
319E. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain as the Partner of a Relevant Points Based System Migrant, an applicant must meet the requirements listed below. ...
(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, ......
.....
(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),
(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, and.....

The highlighted part makes it clear that you need to complete the 5 year with leave as a spouse

As I said, it is an academic discussion in your case. You just need to make an in-time application for extension and since there is no chance that it will be decided before you complete 5 years, you can vary it to 5 year ILR after a few days by sending in an ILR application and mentioning you are varying your application. You may have to pay both fees, but you will get the extension fee refunded.

[2018Emily]

Hi, thank you very much for your advice. It is very helpful.

If I vary my application, may I choose to use premium service, please? I am a bit concerned that if I vary the application, my work right might be affected since the process might be very long and my employer won't be satisfied with my situation.

Furthermore, I think it is not fair to be granted less period compared with my husband's, isn't it? The website of the gov.uk does not mentioned the cover leave at all, causing me having had make a wrong decision to extend Tier 2 visa for two years rather than 3 years. Can I write this in the cover letter ? Another option for me is that I ask my husband to extend his Tier 2 visa for another 6 months. Which one do you think is the most suitable considering money and time? Thank you for your help.

[marcnath]

Hi, thank you very much for your advice. It is very helpful.

If I vary my application, may I choose to use premium service, please? I am a bit concerned that if I vary the application, my work right might be affected since the process might be very long and my employer won't be satisfied with my situation.

As per gov.uk webpage,

You cannot use the premium or super premium service if you’re:

waiting for a decision on a visa you’ve applied for

But, it is not clear if that still applies when you are varying your application as that is not a visa you waiting for a decision on.

There have been many cases in this forum of people who have varied applications and gone for premium service - though almost always they never got the decision on the same day.

Even if you do a postal application, it should not affect your work rights.

Furthermore, I think it is not fair to be granted less period compared with my husband's, isn't it? The website of the gov.uk does not mentioned the cover leave at all, causing me having had make a wrong decision to extend Tier 2 visa for two years rather than 3 years. Can I write this in the cover letter ? Another option for me is that I ask my husband to extend his Tier 2 visa for another 6 months. Which one do you think is the most suitable considering money and time? Thank you for your help.

I am not sure where the less period is - you were granted the T2 dependant visa with the same expiry as your husband, if I got it right. Do you expect that you should have been given one month after your husband's visa expiry date ?
Yes, extending your husband's visa is an option. Gives you a clear opportunity to do the PEO for everyone together. Obviously, the T2 extension is going to cost.
So, entirely up to you.

[2018Emily]

Many thanks for your advice.

It's good that my work right won't be affected even though it might need some time.

Yes, my expire date should be the same with my husband's. However, what I thought which was unfair is that the beginning date of my first Tier 2 visa was one and half months later than my husband's, which made me 4 days shortage to meet the continuous period even though I have valid leave to remain in the UK before this Tier 2 visa via a student visa.

As a partner of my husband, definitely, I have valid leave to remain since 2012 via both Tier4 student and Tier 2 dependant visa without any break. I mean, I got married before coming to the UK in 2012.

In the following two websites, "https://www.gov.uk/settle-in-the-uk/y/y ... neral-visa" &
"https://www.gov.uk/settle-in-the-uk/y/y ... ier-5-visa", nothing mentions that the partner has to be holding a Tier2 dependant visa for five years. Otherwise, we would have definitely extended our visa for 3 years. I felt a bit unfair because of the misleading information. Do you think my opinion is right or not? Thank you.

[marcnath]

Yes, my expire date should be the same with my husband's. However, what I thought which was unfair is that the beginning date of my first Tier 2 visa was one and half months later than my husband's, which made me 4 days shortage to meet the continuous period even though I have valid leave to remain in the UK before this Tier 2 visa via a student visa.

While I understand your frustration, what you are saying is that HO should have looked through your application, guess that you do intend to settle in the UK 5 years later and then pre-date your visa

Anyway, that's water under the bridge.

As a partner of my husband, definitely, I have valid leave to remain since 2012 via both Tier4 student and Tier 2 dependant visa without any break. I mean, I got married before coming to the UK in 2012.

In the following two websites, "https://www.gov.uk/settle-in-the-uk/y/y ... neral-visa" &
"https://www.gov.uk/settle-in-the-uk/y/y ... ier-5-visa", nothing mentions that the partner has to be holding a Tier2 dependant visa for five years. Otherwise, we would have definitely extended our visa for 3 years. I felt a bit unfair because of the misleading information. Do you think my opinion is right or not? Thank you.

I empathise with that. If you want to take the risk, you can try go to the PEO with all the ILR documents and make the argument.

Even the PBS guidance only says:

5. You can qualify for indefinite leave to remain if you meet the following conditions:
a. As a dependent partner:
• You must be the spouse or civil partner, unmarried or same-sex partner, and have been granted leave as such, of a person who:
o has indefinite leave to remain as a Relevant Points Based System Migrant; or
o is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
o has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.
• You and your partner 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 5 years
• You must demonstrate sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.


On a postal application, I would think the chances would be high. At the PEO, I rate it 50-50. They may just approve it, but if they don't you can use all of these websites/guidance to make the case - not sure how much discretion they have.

[2018Emily]

Thank you very much for your time and help. Your understanding and empathy let me feel a bit relieved.

Yes, I have found the PBS guidance as well and it does not mention that I have to hold a Tier 2 Dependant visa for a five years.

I have thought about taking all the documents with me and argue with them. However, it might be too risky for me. With two dependants (my child and me), if I fail, the cost is massive.

Do you know how much I should pay for NHS fee if I extend my PBS visa for another 3 years? I tried to find it in the government's website however found nothing about it? Will I get the whole money refund including the NHS fee if I decide to vary my application.

By the way, according to what you mentioned at first, "(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),
(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, and
(d) not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:
(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days. ", do you think I qualify as well? Because I "have spent the remainder of the 5 year period, where applicable, with leave (student visa) 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". If so, there is no direct conflict between four different documents. Am I right?

[marcnath]

I believe the NHS surcharge was increased to 400 GBP per year per person and you need to pay for 3 year upfront.
Normally you get it refunded if your visa is lesser than 3 years. I am not sure about what happens when it gets varied to ILR, but I assume you can get it back.

with leave (student visa) as the spouse or civil partner ==> Good try If the comma was immediately after leave, you would have a chance

[2018Emily]

Thank you very much, Marcnath. I have checked that the NHS fee is still 200 pounds a year. Hope this money will be refunded, especially I still have a child as a dependant.

I am just wondering whether I can contact them, then I prefer to see their reply. I will ask Citizen Advice Bureau first for their advice.

Thank you very much for your precious time. I will update my situation just in case someone else has similar situations.

You volunteer day and night, weekdays and weekend. Thank you again for your help

[2018Emily]

Hello, every one.

Is there any person here knowing that when 5 year continous period for settlement begins, please? I am currently holding a Tier2 Dependant visa. The period from my first valid Tier 2 Dependant Visa to the date when my current visa expires is 32 days shortage of 5 years. However, the approved date of my first Tier2 Application date was 16 days earlier of the valid date. Therefore, if the approved date of application is taken into consideration, the period would be 16 days shortage of 5 years when my current visa expires. Considering the 28 grace days, do you think that I can apply for Indefinite Leave to Remain directly without extension or not, please?

Please see the following latest document for reference.

"Your qualifying period can include time from the date your initial application (for entry
clearance or leave to remain) was approved."(https://assets.publishing.service.gov.u ... 7_2018.pdf

There are so many documents which are not consistent with each other, I am not sure whether I should rely on this.

Thank you for any advice and help.

[2018Emily]

Anyone know this, please? Thank you.

[marcnath]

Hello, every one.

Is there any person here knowing that when 5 year continous period for settlement begins, please? I am currently holding a Tier2 Dependant visa. The period from my first valid Tier 2 Dependant Visa to the date when my current visa expires is 32 days shortage of 5 years. However, the approved date of my first Tier2 Application date was 16 days earlier of the valid date. Therefore, if the approved date of application is taken into consideration, the period would be 16 days shortage of 5 years when my current visa expires. Considering the 28 grace days, do you think that I can apply for Indefinite Leave to Remain directly without extension or not, please?

Please see the following latest document for reference.

"Your qualifying period can include time from the date your initial application (for entry
clearance or leave to remain) was approved."(https://assets.publishing.service.gov.u ... 7_2018.pdf

There are so many documents which are not consistent with each other, I am not sure whether I should rely on this.

Thank you for any advice and help.

For the main applicant (which is what you refer to) it is clear that the period between grant and entry is counted towards the continuous period - there is no dispute on that.

For the dependants, it is less clear as the requirement is 5 years "in the UK" (as discussed before) and is not as clearly spelled out. I read "in the UK" to say it starts from date of entry. However, I think I saw at least one case here of someone who got it from grant date.

[2018Emily]

Hi. Thank you very much, Marcnath.

However, I think you misunderstand me. Am I right?

For example, the application was approved on 30, Sep. While the visa was valid on 16, Oct. However I entered the UK on 20, Oct, as a dependant.

According to this document, the date 30, Sep can count towards five years' continuance period. Am I right?

Many thanks.

[marcnath]

Hi. Thank you very much, Marcnath.

However, I think you misunderstand me. Am I right?

For example, the application was approved on 30, Sep. While the visa was valid on 16, Oct. However I entered the UK on 20, Oct, as a dependant.

According to this document, the date 30, Sep can count towards five years' continuance period. Am I right?

Many thanks.

Yes, for the main applicant, that seems correct.

But normally the approval date and visa issue date is the same - where is the Oct 16 date shown ?

[2018Emily]

Hi, thank you very much.

Really? I do not know why they are not consistent, to be honest. The date 16/10 is written in my paper visa. I did not get that decision letter since I was not in the UK when I made the application. I assume only those applicants based in the UK will get a decision letter.

I have requested a decision letter from the Home Office. Hopefully, I can get it very soon.

Well, if not misled by that policy guidance, we would have had without any doubt pay 0.5/1 year's extra NHS fee. Then we should not have this struggling application process.

Thank you very much for your help.

As I promise, I will come back to update my status.

[marcnath]

Hi, thank you very much.

Really? I do not know why they are not consistent, to be honest. The date 16/10 is written in my paper visa. I did not get that decision letter since I was not in the UK when I made the application. I assume only those applicants based in the UK will get a decision letter.

I have requested a decision letter from the Home Office. Hopefully, I can get it very soon.

Well, if not misled by that policy guidance, we would have had without any doubt pay 0.5/1 year's extra NHS fee. Then we should not have this struggling application process.

Thank you very much for your help.

As I promise, I will come back to update my status.

If you didn’t get the approval letter where is the 30th September date from ?

[2018Emily]

Hi. Good point.

I requested this date by email and got a confirmation letter from the Home Office, which is not formal. However, I have submitted a request for my decision letter formally. Hopefully, this letter will come to me very soon and save me quite a sum of money even though my hair are grey now.

Thank you very much for your help. Good night.