ILR and Tier 1 Dependent

pkhsmp · Post by **pkhsmp** » Mon Mar 05, 2012 4:27 pm

Hi,
I was not sure whether to put it in ILR or Tier1. So finally decided to put it in ILR section. I came here in 2007 on HSMP and my wife joined me in 2008. We extended our stay in 2009 under Tier 1 General. Our visas are valid till 26 March 2012. But in October last year, I got an extension for myself as I needed to apply a business visa for schengen area. My wife did not apply with me.

Today, I was at the PEO appointment for my ILR set(o) application with my wife. The lady who looked at the document told us that I can apply for ILR but my wife can not. She said that as she did not apply extension with me last time so she is not technically my dependent.

I was given 2 options.
1. Either go ahead with my application for ILR then my wife has to apply on FLR(m) and spend 2 years before she gets settlement.
2. Apply an extension for her to bring her visa up to date with me and then apply the ILR for both.

I choose 2 and came back home. As it was before any fee was charged so I did not lose any money on Fee at least. But did anybody have had experience like that before. Do you guys see any problem in Tier 1 dependent application. Is there any other option for me?

Thanks.

sunil.suneel · Post by **sunil.suneel** » Mon Mar 05, 2012 4:36 pm

oh .. thats very technically specific ... I wasnt aware they are so keenly checking the dependent status ...

Looks like its best to get her an extension based on your current visa and goto PEO for combined ILR ...

check what others have to respond on this as well ...

Post by **linkers** » Mon Mar 05, 2012 5:36 pm

Pkhsmp, What PEO did you go as I remember only Solihull PEO takes payments after giving the decision.

pkhsmp · Post by **pkhsmp** » Mon Mar 05, 2012 5:50 pm

It was Liverpool. The lady who checked the document told me about this. She was nice and gave me 5 minutes to discuss with my wife which option I need to take. But it was a shock. Totally unexpected.

Post by **linkers** » Mon Mar 05, 2012 8:15 pm

Thanks for your prompt reply pkhsmp.

Post by **ban.s** » Mon Mar 05, 2012 8:23 pm

pkhsmp wrote: I was given 2 options.
1. Either go ahead with my application for ILR then my wife has to apply on FLR(m) and spend 2 years before she gets settlement.
2. Apply an extension for her to bring her visa up to date with me and then apply the ILR for both.

Yes, these are correct - Your extension has superseded your previous visa and you didn't include any dependent during extension - so technically you don't have any dependent.
However I don't think in option 1 she needs to wait for 2 years. As she has already completed 2 years, in fact much more, in my opinion, she can immediately switch from FLR(M) to SET(M).

pkhsmp · Post by **pkhsmp** » Mon Mar 05, 2012 9:39 pm

I have a 3 years old son who was born here. I was planning to do MN1 registration after ILR. Now if I wait for my wife extension and then apply ILR, his visa would have expired. Do you guys see any problem with that.

Post by **linkers** » Mon Mar 05, 2012 9:40 pm

As long as one of the parents has ILR, a UK born child can apply for British Citizenship.

Once you get your own ILR, you can use MN1 form for your son (you don't need to wait for your wife’s ILR for this).

pkhsmp · Post by **pkhsmp** » Mon Mar 05, 2012 9:46 pm

I was going for the option of applying an extension for my wife and then ILR together when she has got it. But I dont want to apply an extension for my son. Seems waste of money. But in that case, he will be without visa untill we get ILR. So I was thinking will it be any problem.

Post by **vinny** » Mon Mar 05, 2012 10:14 pm

pkhsmp wrote:Hi,
I was not sure whether to put it in ILR or Tier1. So finally decided to put it in ILR section. I came here in 2007 on HSMP and my wife joined me in 2008. We extended our stay in 2009 under Tier 1 General. Our visas are valid till 26 March 2012. But in October last year, I got an extension for myself as I needed to apply a business visa for schengen area. My wife did not apply with me.

Today, I was at the PEO appointment for my ILR set(o) application with my wife. The lady who looked at the document told us that I can apply for ILR but my wife can not. She said that as she did not apply extension with me last time so she is not technically my dependent.

I was given 2 options.
1. Either go ahead with my application for ILR then my wife has to apply on FLR(m) and spend 2 years before she gets settlement.
2. Apply an extension for her to bring her visa up to date with me and then apply the ILR for both.

I choose 2 and came back home. As it was before any fee was charged so I did not lose any money on Fee at least. But did anybody have had experience like that before. Do you guys see any problem in Tier 1 dependent application. Is there any other option for me?

Thanks.

I think that both options are incorrect. If you haven't switched your category, then your wife's dependant status is still valid. Moreover, there's no requirement for her to apply for a further extension (319E(c)). IMHO, she should have been includable in your ILR application (subject to 319E).

pkhsmp · Post by **pkhsmp** » Mon Mar 05, 2012 11:05 pm

Thanks Vinny. Your input is greatly appreciated. 319E(c) is quite clear. She should not have turned down my wife's application. Now I can not find any other appointment till 26th March when her visa expires and I think I will be forced to fork out 550£ on another extension.

Post by **Greenie** » Mon Mar 05, 2012 11:06 pm

pkhsmp wrote:Thanks Vinny. Your input is greatly appreciated. 319E(c) is quite clear. She should not have turned down my wife's application. Now I can not find any other appointment till 26th March when her visa expires and I think I will be forced to fork out 550£ on another extension.

why don't you just apply together by post for settlement.

Post by **vinny** » Mon Mar 05, 2012 11:24 pm

Yes. A joint in-time settlement postal application seems best.

pkhsmp · Post by **pkhsmp** » Mon Mar 05, 2012 11:27 pm

If I apply by post for me and my wife, what will be the status of my son while application is pending.

As he (my son) was born here in UK, I was planning NOT to apply settlement for him and go directly for MN1. But his visa also expires on 26 March. Can the period in which he will not have any visa will cause any problem.

Post by **vinny** » Mon Mar 05, 2012 11:29 pm

If you are eventually granted ILR, then your son's registration shouldn't be a problem.

pkhsmp · Post by **pkhsmp** » Wed Mar 07, 2012 9:51 am

I got an appointment at Croydon. I think I will print out the rules and take them with me to show the 319E(c). If senior members can suggest some other arguments, I will appreciate.

On a separate note, I entered UK after 25 days of my visa stamping. When I called home office to book an appointment a few months ago, I was told that as I have entered in UK within 28 days, I can take my visa stamp date as start date of my qualification period. Is this a rule that I can find somewhere.

I am asking this because due to extra extension, my leave is valid till November 2013. So if I take my entry into UK as qualification start then I can not apply before 24 March.

Thanks.

Post by **vinny** » Wed Mar 07, 2012 12:21 pm

See also Confusion with the ILR qualifying period(DONOTAPPLY28DAYSB4)

pkhsmp · Post by **pkhsmp** » Wed Mar 07, 2012 1:41 pm

Seems like I am at a double disadvantage. I entered UK within 28 days of visa stamp date and then did an extra extension also. So I may not be eligible for the concession for people who entered late and their leave is expiring.

Another question. Is last date mentioned on the visa is inclusive or not? Like if my visa is expiring on 26 March, Can I send an application on that date or I have to send it before 26 March.

krthk.s · Post by **krthk.s** » Wed Mar 07, 2012 2:02 pm

Don't mean to scare you, but in my opinion, I tend to agree with the caseworker:

When you obtain a new visa in the same category (regardless of whether the old one is still valid), the old visa is automatically invalidated (even though it is not explicitly stamped as invalid).

On that principle, any dependant visas linked to the previous visa stands invalidated too.

Post by **Greenie** » Wed Mar 07, 2012 3:41 pm

krthk.s wrote:Don't mean to scare you, but in my opinion, I tend to agree with the caseworker:

When you obtain a new visa in the same category (regardless of whether the old one is still valid), the old visa is automatically invalidated (even though it is not explicitly stamped as invalid).

On that principle, any dependant visas linked to the previous visa stands invalidated too.

that's complete nonsense. Please refer us to the relevent law.

krthk.s · Post by **krthk.s** » Wed Mar 07, 2012 3:48 pm

While I am unable to provide a link to the law, one reliable reference is the approval letter one receives from UKBA.

For example, my Tier 1 extension approval letter clearly states:

Code: Select all

This extension of your leave to remain completely replaces your previous leave including any conditions that were attached to that leave

Post by **Greenie** » Wed Mar 07, 2012 3:50 pm

krthk.s wrote:While I am unable to provide a link to the law, one reliable reference is the approval letter one receives from UKBA.

For example, my Tier 1 extension approval letter clearly states:
Code: Select all
This extension of your leave to remain completely replaces your previous leave including any conditions that were attached to that leave

but this has no bearing on the dependent's leave. The main applicant is still a tier 1 migrant, and the wife is still a tier 1 dependent. If you believe otherwise, please refer to the relevent law.

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ILR and Tier 1 Dependent

ILR and Tier 1 Dependent

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