Is my son eligible to apply to settle in the UK with me

[vinny]

The immigration rules are very clear on it. The years of stay together will not be sufficient to prove sole responsibility, the sole responsibility can be proved only with court order ...

The Immigration rules are unclear, as the Interpretation of Sole responsibility is undefined. Length of time required is unspecified. A court order document to prove sole responsibility may suffice but is unnecessary.

[Abg85]

The immigration rules are very clear on it. The years of stay together will not be sufficient to prove sole responsibility, the sole responsibility can be proved only with court order ...

The Immigration rules are unclear, as the Interpretation of Sole responsibility is undefined. Length of time required is unspecified. A court order document to prove sole responsibility may suffice but is unnecessary.

Vinny,
In earlier times it may be right. But from 22/07/2020 on wards HO is very about Sole Responsibility. HO itself clearly mentioning that "where both parents are involved in the child’s upbringing, it will be rare for one parent to establish sole parental responsibility" and the same is available with https://assets.publishing.service.gov.u ... 9.0ext.pdf. and the policy guidance published by HO on 04/08/2020 for "Skilled Workers and Students(Dependants)" itself is staring with the sentence of "Any application made by a child where only one parent will be in the UK will not be granted unless the above circumstances are clearly and fully demonstrated. These Rules are in place to ensure the safeguarding and welfare of the child is actively considered, preventing, for example, the unintended break-up of a family unit or child trafficking". From the all above I think now HO is very clear about the child visa and now only the refusal will be the action from the side of HO if a child visa application will be submitted for a child where both parents are involved in that child’s upbringing.

[vinny]

Don’t forget the ‘sole responsibility’ is not the only criteria. It was just my short handed title for the link.

See also ILR Tier2 PBs dependant topic and Obie’s post.

Moreover, they had already accepted the child’s previous leave to remain application with the mother in the absence of the father.

The safeguarding and welfare of the child may not be maintained if the child is refused on this point and therefore cannot continue to apply for an a PBS dependant Leave to remain (as the same requirements on this point apply to both limited leave to remain and ILR applications) nor settlement entry clearance with his father in the future because he’s over 18. This may result in the breakup of the family unit or force the mother to depart from the UK.

It’s ironic, if a policy to prevent the unintentional break-up of family units, then intentionally break-up intended family units.

[Abg85]

Vinney,
I think they got visa only because this is a very very exceptional case, since the son is turning to 18 (age 18 is the main reason here) and at the same time they may submitted satisfactory consent letter/proof from the father by giving sole responsibility to mother or by giving permission to continue his son with his mother due to his family consideration. Otherwise HO will be very strict in the immigration rules.

[vinny]

In the preceding topic, there were two successful extensions without the father prior to the successful ILR application, again without the father. One child was over 18 at the time of the ILR application. The mother posted that she had always maintained that she did not have sole responsibility.

[Abg85]

Vinney,
If she has submitted no proof for sole responsibility,the HO may be considered the case under serious and compelling consideration . That's what I said, they may be successful to prove serious and compelling reason by submitting any conscent letter from the spouse along with any other valid proof of documents . Without submitting any valid proof of evidence for any of the above two , the visa will be rejected. Around 6months before my friend's daughters visa extension rejected only due to this reason. Even though they have submitted the consent letter from spouse, the visa was rejected due to the lack of solid proof of documents. The visa rule clearly mentioned that the letter from the spouse is not sufficient and aslo the desire of father or mother to continue is also not sufficient. The visa will be given only if both of them together convince the HO that they can't care child in the home country because of the the serious family consideration of husband/wife/relative.

[vinny]

This case is different from your friend’s.

Moreover, they had already accepted the child’s previous leave to remain application with the mother in the absence of the father.

[Abg85]

This case is different from your friend’s.

Moreover, they had already accepted the child’s previous leave to remain application with the mother in the absence of the father.

Vinney,

Let me know in detail please. If only one parent is Interested to continue the child here and other is interested to continue the child in abroad, they can't submit a consent letter from spouse, in that situation the child visa will be surely rejected and the HO can't do anything, because they don't know the actual situation, and as per visa rule they have to reject. But in my friend's case, the visa was rejected even though they have submitted the consent letter from spouse.

[Cindy666]

Hi Vinny and Abg85,

I just read the records of your communication about my case. Many thanks for your taking care of my situation. My details are:
MY Tier 2: 27 Aug 2015 - 31 Jan. 2018, my husband and my son got Tier 2 dependant: 07 Dec 2015 - 31 Jan. 2018. During this period, my son was with me in UK, my husband traveled to and stayed in the UK only max 30 days per year.
I changed my job position in 2017, so I changed my Tier 2 with 26 May 2017 - 14 Aug. 2020. Only my son was with me in the UK and got Tier 2 dependant of 26 May 2017 - 14 Aug. 2020. I did not provide any consent letter from my husband showing my sole responsibility.

As my working contract started from 24 Sep 2015, I have to extend my Tier 2 before apply to ILR (5 years Tier 2). My employer provided me a CoS so that I can apply to extend my Tier 2 from 15 Aug 2020 to 23 Sep. 2021. So I submitted Tier 2 extension application on 29 May 2020 for myself and my son. Unfortunately due to the COVID-19, I have not received any decision yet even I have waited 4 months.

Now I am eligible to apply ILR if my Tier 2 extension is approved. My son has got KoLL passed. Please let me know if my son is eligible to apply ILR with me? According to the previous communication with Vinny, Vinny suggested my son can apply ILR as I hold a sole responsibility raising up my son since I work in the UK. If so, what kind of supporting documents I have to provide along with application? Could we apply to the ILR now given the pending of current Tier 2 extension application?

If my son is not eligible to apply ILR with me, what kind of visa could he apply to? Again Tier 2 dependant? Should he apply to Tier 2 dependant separately?

[vinny]

The requirements of 319H(f)(i)-(iii) and 319J(e)(i)-(iii) are the same.

If your son’s extension with yours without his father was successful, then they have already accepted that he satisfies 319H(f). Why do you think that his ILR application under 319J with yours without their father would be unsuccessful?

Conversely, if 319J(e)(i)-(iii) fails, then why would 319H(f)(i)-(iii) succeed?

What evidence did you use for your son’s previous successful extension?

I think you and your son may vary your pending extension applications to ILR applications.

[Cindy666]

Thanks Vinny.

Previously I simply provided documents in the Checklist obtained once I submitted the online application. It did not ask me to submit any evidence showing my sole responsibility.

Sorry, can I ask what do you mean "I think you and your son may vary your pending extension applications to ILR applications."
What should I do now? Can I fill in new applications for ILR, or simply wait for the decision on our pending extension applications?

Thank you so much for the help on my case.

[vinny]

I think you may make a new application. There should be a question asking if you have a pending application.

[Cindy666]

Yes, you are right.

When I tried to fill in a new application, it says:

Do you currently have an application with the Home Office for leave to remain for which you have not yet received a decision? (Required)
If you have submitted any other applications to the Home Office which have not yet been decided then submitting this application varies those previous applications. This means that only this application, which you are now completing, will now be considered.

Does it mean: the reason of our pending extension applications is that they are waiting us new ILR applications?

[Cindy666]

However, I had a phone call last Monday to the CIH asking my case. The staff told me not making ILR applications before I get a decision on the current extension applications. He said HO will contact me within 5 working days. Last Friday, I received an email from HO, but the email does not show any useful information and does not answer my query.

[vinny]

Applications are pending, if they haven’t got around to making a decision on them yet. If you answer “yes” to the pending application question, then they may vary your pending application to the current one that you are making.

If you vary an application before a decision, then you may also get the appropriate refund of the fees. However, if they make a decision before you tried to vary it, then you cannot vary as there would be no pending application to vary. Then they may treat your application as a new application and they won’t refund any fees.

[Cindy666]

To my understand, the success of my current extension application is part of the basis of my eligibility for ILR (5 years Tier 2). So I am think should I wait for the decision on the current extension applications before I apply ILR? So confused and stressful.
Again, thank you so much on my queries.

[vinny]

If you made an in-time valid application, then your leave is extended under Section 3C. So, you may be eligible to vary your pending extension to ILR under 245HF. Son under 319J.

[vinny]

See also CR001’s post.

[Abg85]

CR001,
How Cindy 666 has obtained visa extension? The immigration rules are very clear and my friend's application has rejected recently only because of the same reason.

Hi Vinny and Abg85,

I just read the records of your communication about my case. Many thanks for your taking care of my situation. My details are:
MY Tier 2: 27 Aug 2015 - 31 Jan. 2018, my husband and my son got Tier 2 dependant: 07 Dec 2015 - 31 Jan. 2018. During this period, my son was with me in UK, my husband traveled to and stayed in the UK only max 30 days per year.
I changed my job position in 2017, so I changed my Tier 2 with 26 May 2017 - 14 Aug. 2020. Only my son was with me in the UK and got Tier 2 dependant of 26 May 2017 - 14 Aug. 2020. I did not provide any consent letter from my husband showing my sole responsibility.

As my working contract started from 24 Sep 2015, I have to extend my Tier 2 before apply to ILR (5 years Tier 2). My employer provided me a CoS so that I can apply to extend my Tier 2 from 15 Aug 2020 to 23 Sep. 2021. So I submitted Tier 2 extension application on 29 May 2020 for myself and my son. Unfortunately due to the COVID-19, I have not received any decision yet even I have waited 4 months.

Now I am eligible to apply ILR if my Tier 2 extension is approved. My son has got KoLL passed. Please let me know if my son is eligible to apply ILR with me? According to the previous communication with Vinny, Vinny suggested my son can apply ILR as I hold a sole responsibility raising up my son since I work in the UK. If so, what kind of supporting documents I have to provide along with application? Could we apply to the ILR now given the pending of current Tier 2 extension application?

If my son is not eligible to apply ILR with me, what kind of visa could he apply to? Again Tier 2 dependant? Should he apply to Tier 2 dependant separately?

[Abg85]

Cindy 666,

I think your previous extension application was not rejected only because by considering the fact that your son was nearing to 18 (By considering under serious & compelling reason) and the rejection may results the family break up. But in the recent ILR case in my opinion your success rate is nil, because the immigration rules are very clear in it. Without ILR of both parents the children's application will not be considered.

To my understand, the success of my current extension application is part of the basis of my eligibility for ILR (5 years Tier 2). So I am think should I wait for the decision on the current extension applications before I apply ILR? So confused and stressful.
Again, thank you so much on my queries.

[vinny]

Don’t forget that there was a successful application from someone with similar circumstances. So, it’s not hopeless. The Immigration rules has exceptions.

[Abg85]

Vinny,
Exactly... only because of excemption (Turning to 18) they got extention. Since they have already got extention if that reason work out here the application will successful.

Expecting comment from CR001 also.

Don’t forget that there was a successful application from someone with similar circumstances. So, it’s not hopeless. The Immigration rules has exceptions.

[vinny]

The rules also have provisions for over 18 dependants.

[Abg85]

Ya...but that will affect ILR and may lead family separation and that may be the reason they have accepted.

The rules also have provisions for over 18 dependants.

[Cindy666]

Hi thanks for taking care of my case.

If my son's ILR application is rejected, then what type of visa should he apply to? Will HO directly give him other type of visa, e.g. Tier 2 PBS Dependant? He is now a Year 1 student in a UK university. He does not work. All his expenditures are supported by myself. Will the rejection influence my ILR application?

Sorry for so many questions.

Thanks