180 days absence rule T2G dependent children

[kali2023]

Hi All,

I need your suggestions regarding ILR eligibility for my wife and children.

My details:

1) I have arrived in the UK on 12-Feb-2017 (on Tier2 general)
2) Will be eligible for ILR by 12-Feb-2022
3)please note that I have changed my employer in Aug 2018, so my second tier2 general visa
valid from 23-08-2018 to 08-10-2021
4)My company starting the process of renewing my visa now and they are saying they will extend it for only 1 year as I will be eligible for ILR by next feb.

My wife details: She joined me after 5 months when I first arrived in UK

1)VISA1 (BRP VALID: 25-June-2017 to 15-Feb-2020)

Entry clearance issued from 08-July-2017 to 07-Aug-2017
Arrived in the UK on 15-July-2017
Left UK on 11-Feb-2018 (reason: she was pregnant with our second child, went for baby delivery to India)
She has a gap of close to 10 months on VISA1(from 12-02-2018 to 02-12-2018)

2)VISA2(BRP VALID : 03-Dec-2018 to 08-Oct-2021 )

Entry clearance issued from 15-Dec-2018 to 14-Jan-2019
Arrived in the UK on 15-Dec-2018
Living continuously since then in the UK (been away for 1 month for holiday in 2019)

I will be applying for ILR in next feb2022, but I am not sure whether my wife would be eligible for ILR by 08-07-2022 (if they don't consider 10 months gaps on visa1 which was issued in 2017)

Could you please advise me when my wife and kids are eligible for ILR or do I have to renew their Tier-2 Dependant visa, if yes for how long?

Sorry if I have not explained my case clearly. Let me know if you need further info.

Thanking you all in advance.

Regards
Sai

[zimba]

PBS dependants DO NOT have absence limits unless their visa was issued after 11 Jan 2018. This has been discussed many many times on the forum and in many posts

indefinite-leave-to-remain/big-changes- ... l#p1581504

[kali2023]

Thanks, Zimba for the reply.

Yes, I have seen that from the previous posts but the company which is renewing my application saying the PBS dependence absence is after 11 Jan 2018 even if their visa was issued before that date, so they broke the rule and will not be eligible for ILR for by next July 2022.

I am confused and they are suggesting to renew my visa and dependants visa for another 3 years again.

[CR001]

Thanks, Zimba for the reply.

Yes, I have seen that from the previous posts but the company which is renewing my application saying the PBS dependence absence is after 11 Jan 2018 even if their visa was issued before that date, so they broke the rule and will not be eligible for ILR for by next July 2022.

They are talking absolute nonsense. The absence limit ONLY applies to VISAS granted/issued AFTER 11th January 2018. Absence after this date on a visa issued before this date are irrelevant!! This is clearly stated in the guidance.

7.21. The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants. To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days

[zimba]

Thanks, Zimba for the reply.

Yes, I have seen that from the previous posts but the company which is renewing my application saying the PBS dependence absence is after 11 Jan 2018 even if their visa was issued before that date, so they broke the rule and will not be eligible for ILR for by next July 2022.

I am confused and they are suggesting to renew my visa and dependants visa for another 3 years again.

Overtaken by Char
I stress too that they are mistaken. It is not any period after 11 Jan 2018, it is any period of leave issued after 11 Jan 2018. The wording is very very clear

[kali2023]

Thanks, Char and Zimba,

Thanks for the pointers. Yes, that wording is clear that the rule applies to the visas issued from 11 Jan 2018.
Let me point the document to the consulting company which is renewing visas.

Once again many thanks.

Regards
Sai

[kali2023]

Hi Char and Zimbra,

I came across the following document( updated on Dec01,2020) which talks about the transitional arrangement and mentions that any absences during leave granted before 11 January 2018 will be considered in 12 months consecutive period.

ILR continuous period calculation

Transitional Arrangements: rolling 12 month period
Absences from the UK during period of leave granted on or after 11 January 2018
are considered on a rolling basis. If the applicant’s qualifying period includes leave
granted before 11 January 2018, any absences during that leave are considered in
consecutive 12-month periods ending on the date of application.
For example:
The application date is 30 June 2020. The applicant’s continuous period includes the
following grants of leave:
• one grant of leave from 1 July 2015 to 28 July 2018 – any absences during this
grant of leave will be considered in consecutive 12-month periods, ending on
30 June each year
• one grant of leave from 29 July 2018 to 30 June 2020 – any absences during
this grant of leave will be considered on a rolling basis: you must not include
any absences from the previous grant of leave when you assess this

So could you please clarify that

1) The above condition is only applied to the main applicant, not for the dependants?
2)And regarding my ILR application, my first BRP was valid from Jan 23, 2017, but arrived on Feb12, 2017. So I can make the ILR application 28 days before Jan23 right?

[zimba]

1) PBS dependants did NOT have any absence limits before 11 Jan 2018. That ONLY applies to the main applicants
2) Correct

[kali2023]

Hi Zimbra and Char

One more clarification I need. My wife second leave of grant was applied/issued in India in 2018, so does this poses any problem for her ILR application in 2022. Below are full details.

1st BRP was issued in India(leave to enter) in June 2017
2nd BRP was issued again in India(leave to enter) in Dec 2018
3rd BRP which we are applying now, here in the UK(which I guess would be "leave to remain")

So as per the previous posts, she should be eligible for ILR in June 2022.
But someone told me that, to apply for ILR, the qualifying 5 year period should have only 1 "leave to enter" to "leave to remain", if not, then the 5 year counter starts from the last entry i.e Dec 2018 in my wife case.

Is this true?

Thank you.

[zimba]

When did she leave the UK before applying for a new visa in 2018 ? What was her visa expiry ?

[kali2023]

Hi Zimbra,

She left the UK in Feb 2018 for pregnancy delivery.
Her initial BRP was valid from 25-06-2017 to 15-02-2020.

[CR001]

Hi Zimbra,

She left the UK in Feb 2018 for pregnancy delivery.
Her initial BRP was valid from 25-06-2017 to 15-02-2020.

If she had a valid visa, why on earth did she apply for a new entry clearance??

[kali2023]

Hi CR001,

I have joined a new company in Sept 2018, so when I requested the visa sponsorship for my newborn baby(at that time all my dependants were India), the immigration adviser for this company suggested to apply a fresh visa for all my dependents again from India.

It was a bad decision I agree, but I was not knowing the implications of it at that time.
I remember I told the immigration adviser that my wife and elder son don't need visas as they still had a valid visa but only my newborn baby needs a visa.
But he convinced me and my company to reply altogether for everyone(dependants) based on my new visa at that time.


Regards

[zimba]

Hi Zimbra and Char

One more clarification I need. My wife second leave of grant was applied/issued in India in 2018, so does this poses any problem for her ILR application in 2022. Below are full details.

1st BRP was issued in India(leave to enter) in June 2017
2nd BRP was issued again in India(leave to enter) in Dec 2018
3rd BRP which we are applying now, here in the UK(which I guess would be "leave to remain")

So as per the previous posts, she should be eligible for ILR in June 2022.
But someone told me that, to apply for ILR, the qualifying 5 year period should have only 1 "leave to enter" to "leave to remain", if not, then the 5 year counter starts from the last entry i.e Dec 2018 in my wife case.

Is this true?

Thank you.

Who are these immigration advisors and how are they that inept ??
Anyway I suggest to not listen to someone, she is eligible for ILR

[kali2023]

Hi,

Does 180 days absence rules applicable for child(5 years old) when they apply for ILR ?
if not , can we file their ILR application from outside UK?

my status: on ILR( from tier2 general)
my wife : She is still on tier2 general , I am planning to apply ILR for her in coming months.(She is currently out of UK since last July and coming back in November so her total absence would be close to 4 months).
child : Planning to stay with grand parents for more than 6 months .

I am thinking of my child whether should would be eligible for ILR or not if she extend her stay more than 6 months ?

Thanks

[Ticktack]

Hi,

Does 180 days absence rules applicable for child(5 years old) when they apply for ILR ?
if not , can we file their ILR application from outside UK?Nope you cannot. Anyone applying for ILR should be in country. You can't remain when your outside!

my status: on ILR( from tier2 general)
my wife : She is still on tier2 general , I am planning to apply ILR for her in coming months.(She is currently out of UK since last July and coming back in November so her total absence would be close to 4 months).
child : Planning to stay with grand parents for more than 6 months .

I am thinking of my child whether should would be eligible for ILR or not if she extend her stay more than 6 months ?

Thanks

[kali2023]

Thanks Ticktack, what about 180days absent rule for dependent children ?

Thanks

[kali2023]

or what are all options(like types of visas) my child has if we apply from outside and me and my wife both are having the ILR ( or British passport incase)?

[zimba]

Thanks Ticktack, what about 180days absent rule for dependent children ?

Thanks

Children do NOT have any qualifying period or absence limits for ILR. They simply settle when both parents settle

[kali2023]

Thanks Zimbra,

1) Somewhere I read that non UK born child still has to go though 5 years continuous residence period before applying ILR. From your answer I assume that this is not the case.

2) if me and my wife both are having ILR and living in UK. can I apply the ILR application(settlement) from outside UK for my child. As per ticktack it's not possible. is it true?

Thanks

[zimba]

Thanks Zimbra,

1) Somewhere I read that non UK born child still has to go though 5 years continuous residence period before applying ILR. From your answer I assume that this is not the case.

2) if me and my wife both are having ILR and living in UK. can I apply the ILR application(settlement) from outside UK for my child. As per ticktack it's not possible. is it true?

Thanks

1) What you read somewhere is incorrect !
2) He is incorrect. You can apply for indefinite leave to enter (ILE) for the child of settled parents from outside the UK