When A Dependant Gains Indefinite Leave to Remain Visa, Is Their ILR Visa Still A Dependant Visa or Their Own?

Under the current immigration rules, non-EEA dependant family members (including partners and children) of a UK based visa holder may be able to apply to join them. However, a dependant is only permitted to remain in the UK as long as the primary visa holder remains here. If they leave, they will also lose their right to stay as a dependant. However, after five years of continuous residence in the UK, the primary visa holder will be able to apply for indefinite leave to remain (ILR), meaning they are then free of immigration control. At this point, the dependant is also then able to acquire ILR. And crucially, once a dependant has ILR, they are no longer tied to the primary visa holder from an immigration standpoint, meaning if the principal visa holder leaves the UK, the dependant with ILR can remain.

ILR for family members of points-based system (PBS) migrants

A dependant is a family member of the main visa applicant and includes a spouse/partner, child under the age of 18, and a child over the age of 18 in the UK who is dependant on them.

Under the Points-Based-System (PBS), dependant family members of visa holders can apply to join the main visa holder in the UK, and after a period of time (typically five years) may be eligible for ILR.

The immigration rules state that “dependant partners of PBS or Appendix W migrants must complete a 5-year probationary period before they qualify for ILR”. Appendix W refers to those on the start-up and innovator visas. This may mean that the main visa holder gains ILR before their dependant partner completes their probationary period, however, they can apply for further leave; according to the immigration rules “If the PBS or Appendix W migrant obtains ILR or British citizenship before their partner has completed their 5-year probationary period, the partner can still apply for further leave to remain as a PBS or Appendix W dependant rather than as the partner of a settled person. If their application meets the requirements, leave to remain can be granted for up to 3 years.”

Related article: Read also ‘Key questions answered on the PBS dependant migrant route’

What are the requirements for ILR as a partner of a PBS migrant?

Applying as a dependant partner of a PBS migrant

In order to be eligible for ILR as a partner of a PBS migrant, an applicant must:

• be the spouse, civil partner, unmarried or same-sex partner of a person who is being, or has been, granted indefinite leave as a PBS or Appendix W migrant
• have, or have last been granted, leave as the partner of the person who is being, or has been, granted indefinite leave as a PBS or Appendix W migrant
• have been living with the PBS or Appendix W migrant in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership for at least:
  • Two years - for applicants granted leave as the partner of a PBS migrant under the rules in place before 9 July 2012 and who have since had continuous leave in that category
  • Five years – for applicants granted leave as the partner of a PBS or Appendix W migrant under the rules in place on or after 9 July 2012, who have since had continuous leave in that category and, during that period
• be in a genuine and subsisting relationship with the PBS or Appendix W migrant
• intend to live together permanently with the PBS or Appendix W migrant as their spouse, civil partner, unmarried or same-sex partner
• meet the knowledge of language and life in the UK requirements
• not have been absent from the UK for more than 180 days in any 12-month period during the 2- or 5-year period

Applying as a dependant child of a PBS migrant

To be eligible for ILR as a dependant child of a PBS migrant, the applicant must be the child of either a parent who:

• is, at the same time, being granted ILR as a PBS migrant (if the child was granted leave before 9 July 2012)
• has been granted, or is at the same time being granted, ILR as a PBS migrant, an Innovator or under Global Talent when:
  • that parent is the applicant’s sole surviving parent
  • that parent has and has had sole responsibility for the applicant’s upbringing
  • there are serious and compelling family or other considerations which would make it desirable not to refuse the application and suitable arrangements have been made for the applicant’s care
• has been granted, or is at the same time being granted, ILR as the partner of a
• person who has ILR as a PBS migrant or an Innovator
• has been granted, or is at the same time being granted, ILR as the partner of a
• person who has become a British citizen (when immediately before that they had ILR as a PBS migrant or an Innovator)

A dependent child applying for ILR will also need to have, or have last been granted, leave as the child of a PBS migrant (or Appendix W Worker or their partner), who is being granted indefinite leave. Furthermore, they must meet the knowledge of English language and life in the UK requirements (unless they are under the age of 18 on the date that they make their application)

Final words

The immigration rules around gaining limited and indefinite leave to remain as a dependant family member can be complex. If you are unsure if you meet the requirements for ILR as a child or partner of the main applicant, or whether you may be better advised to apply through a different route, then it is recommended you speak to immigration Solicitors. Doing so may save you time and money, and allow you to secure ILR to remain in the UK as soon as possible.