Emergency travel for family's medical emergency whilst ILR application decision is pending

[anonvtic]

My friend lives in the UK along with his wife and child on SWV and dependent visas. All 3 of them are currently under Sec 3(c) leave, whilst their various applications (detailed below) to UKVI/Home Office are pending (since mid-Feb 2023 when biometrics were submitted).

His parents are currently having a medical emergency in their home country. My friend is travelling back to his home country on an emergency basis tonight to help out with the situation.

- My friend has a pending ILR application under SWV route (SWV expired in March 2023).
- His wife has a pending ILR application under SWV dependent route (SWV dependent status expired in March 2023).
- MN1 application for their UK-born child (also on SWV dependent status that expired in March 2023) for registration as a British citizen.

They are awaiting decisions from UKVI/Home Office on all three of their ILR & MN1 applications.

Presently, only my friend is leaving the UK tonight. His wife and child will be staying in the UK during this current family crisis of theirs.

What are the immigration-related consequences for each one of them? Will my friend be able to come back to the UK?

[CR001]

Your friend and spouse's applications cannot proceed. The spouse can only get ILR if the main visa holder gets ILR. If he leaves, his application is considered withdrawn so can't proceed and therefore spouse's application cannot proceed either.

Note that the child can only apply for MN1 citizenship AFTER the parent(s) have been granted ILR. It is NOT an application made at the same time. Child's application likely also cannot proceed if parent(s) don't get ILR.

Without a valid visa, your friend will be unable to board a plane to return to the UK.

[vinny]

What are the immigration-related consequences for each one of them? Will my friend be able to come back to the UK?

Potentially catastrophic consequences, as described above.

Found very good advice from another board:

I think the correct procedure would be to request that the settlement decision is expedited on compassionate grounds, providing evidence of the urgent need to travel.

Google

Chase delayed UK immigration application

[anonvtic]

Thank you CR001 and Vinny,

Much appreciate your answers. In the stress & confusion surrounding the family emergency, my friend did not have the time to fully convey the details to me before they boarded the plane. Unfortunately, that family member in the Home Country passed away, and there is nothing more to do except to stay back for a couple of more weeks to make funeral arrangements, and to provide support for the bereaved.

My friend has now had a minor breathing time to explain what happened and their UK immigration situation. All three of them (friend, wife and child) had travelled out of the UK to their Home Country day before yesterday.

1. My friend already has his ILR BRP in hand. He had applied for ILR on priority basis and received decision & BRP in under a week (in Feb 2023).
2. Their UK born child's MN1 application had been successfully processed and already has their British citizenship certificate issued by the Home Office. They had submitted a passport application for the child (non-priority), but yet to receive it. Day before yesterday, the child travelled along with the parents on their former nationality's passport.

Hence, my friend and the baby are sorted with respect to UK immigration.

Therefore, the only UK immigration-related concern is regarding my friend's wife (i.e. the mother of the UK born child). My friend's spouse was on Section 3(c) leave in the UK, having submitted their ILR application in March 2023 (& biometrics in April 2023) on a standard (i.e. non-priority) basis on the PBS dependent (5 years as the dependent of an SWV holder), and is awaiting decision on their ILR. The spouse is already in their home country since yesterday early morning.

Given this updated information, can you please let me know what are the implications for my friend's spouse?


PS: Apologies for some of the incorrect information in my original post. It was a hectic period of confusion, and I had summarised their present UK immigration circumstances incorrectly based on my awareness over the last few years, and partly based on whatever he could tell me from the airport gates whilst awaiting the boarding of their flight.

[AmazonianX]

If your friend's spouse application not attended to yet, the consequences as previously stated by CR001 and vinny stays same.

[anonvtic]

Understood. Are there any steps that they can take now to try to ameliorate the situation, at least partially?

My friend's wife, who had to travel out of the UK due to the family medical emergency, had established a life in the UK prior to the emergency travel 2 days ago.

She is:
- Employed in the UK on a full-time basis in the private sector
- A joint mortgage holder along with my friend (responsible jointly for monthly mortgage repayments) on their UK property purchased in Sep 2021.

Hence, my friend's spouse need to be able to return to the UK in some capacity (be it a temporary visa or whatever) so that they can at least have time to think about the child's schooling options (school year starts in early September). My friend and the child can travel back to the UK for the start of the school year, but it would not be tenable for the family to be permanently separated.

Is there any way to partially remediate the situation (induced by this sudden medical emergency), even if it means applying for a temporary visa on any suitable immigration route. Do they have any option at all?

[AmazonianX]

Understood. Are there any steps that they can take now to try to ameliorate the situation, at least partially?

My friend's wife, who had to travel out of the UK due to the family medical emergency, had established a life in the UK prior to the emergency travel 2 days ago.

She is:
- Employed in the UK on a full-time basis in the private sector
- A joint mortgage holder along with my friend (responsible jointly for monthly mortgage repayments) on their UK property purchased in Sep 2021.

Hence, my friend's spouse need to be able to return to the UK in some capacity (be it a temporary visa or whatever) so that they can at least have time to think about the child's schooling options (school year starts in early September). My friend and the child can travel back to the UK for the start of the school year, but it would not be tenable for the family to be permanently separated.

Is there any way to partially remediate the situation (induced by this sudden medical emergency), even if it means applying for a temporary visa on any suitable immigration route. Do they have any option at all?

Baring her ILR being already attended to or granted, with the SWV dependant for the wife already expired as described earlier by you, doubt the possibility of any remedial or temporary measures.
In the heat of the moment actions or steps were taken already before asking questions .

[anonvtic]

1. Can she not apply for a spouse visa from her home country? Her husband holds ILR status, so this should be possible, right?

2. Can her current employer sponsor an SWV CoS for her, which she can apply from her home country?

Are these valid possibilities?

[vinny]

Baring her ILR being already attended to or granted, .

Her BRP is may be long overdue or they may not automatically treat her application as withdrawn. Can you check her mail in their absence?

[anonvtic]

She is regularly checking the registered email given in her ILR application. During their absence from the UK, I am able to collect physical letters & parcels delivered to their UK home address.

If the BRP is indeed issued during her absence from the UK, maybe I can receive it on her behalf when it is delivered at her UK home address, and then just send it by courier to her current location in her home country?

How do we know that the application has been withdrawn? Will UKVI issue a notification email intimating her that the application has been withdrawn, or will it be radio silence?

[vinny]

Probably radio silence.

However, given the standard waiting times, then hopefully, her BRP may have already been approved, processed and on its way to her. Unfortunately, a delayed BRP may arrive late, perhaps long after the date of the decision.

59.

I have looked carefully at the detail of the cases themselves first. Husson was the case of the Mauritian national who was left waiting and waiting for his biometric residence permit. But he had first been granted 30 months' leave to remain on family life grounds. The delayed BRP was the evidence of that decision conferring the right to work that he needed to satisfy a UK employer of his entitlement to work lawfully. The Court of Appeal, considering the arguability of a human rights claim, accepted it could be said in the real world: first, no UK employer would employ him without the BRP; and second, the only alternative of expecting him to return to Mauritius was unrealistic. It was unrealistic because (a) he had originally been told to expect the BRP within 7-10 days, but even as days turned into weeks, months and years he was throughout entitled to expect the BRP to arrive at any moment; (b) he had a defined and established legal right to work in the UK, and was just waiting for the evidence to arrive; and (c) he had the right to remain here by reason of his family life here and leaving the UK would have involved leaving behind his British wife and child. Since no employer could have lawfully employed him in the UK, and it was unrealistic for these reasons to expect him to work in Mauritius, 'it is an inevitable inference that he was deprived of all employment opportunities that were available'. There was also evidence of the 'arguably harsh impact this had on the appellant's ability to enjoy his private and family life given the debt into which he had fallen, with the inference that he was unable to support his wife and young child'. There was evidence his accumulating debt was coupled with an inability to avoid county court judgments being entered against him.

If she has an unexpired BRP, then I think she may use it to board a plane to the UK. Collect all relevant documents of the family emergency. Be prepared to explain all at the UK airport.

[anonvtic]

Assuming her non-priority ILR application has not yet been processed, for my friend's wife to be able to return to the UK:

1. Can she apply for a UK spouse visa from her home country? Her husband holds ILR status in the UK, so this should be possible, right?

2. Can her current UK employer sponsor an SWV CoS for her, and she can submit the SWV application from her home country, and obtain a visa vignette on her passport?

[CR001]

Yes, possible for both your questions.

However changing visa category will reset her 5 year ilr clock to zero.