Child ILR via 5 year route refused- Please help

[carsheeba]

Dear all,
I entered the UK in 2015 with my older son via Tier 2. My younger son was with my parents and my husband was working in another European country at the time. My husband and younger son applied for PBS dependent in 2018 and joined me. Later, my husband continued to work in the other European country as he could not find work in the UK, but my younger son continued to live with me. Me and my elder son were granted ILR in 2020 and my younger son and husband extended their PBS visa that time. In 2023, my younger son completed his 5 years in the UK and my husband had not completed the 5 years as he had only been in the UK for a few months in the last 5 years. Therefore, in October 2023 we applied for a spouse visa for my husband and an ILR for my younger son (he is now 16 years old studying his first year of A levels). My husband was granted the spouse visa and my younger son's ILR application was refused. Could you please tell me which route and which visa I should apply for my younger son in these circumstances? Thank you for your help.
Best regards,
CJS

Below is the message I received from the UK Decision Making Center.

[We are unable to proceed with your application for settlement.
Although your mother has been granted Settlement, your father has been granted leave to remain as a ‘spouse of a settled person’. As per Immigration Rule CHI 4.3. The applicant’s other parent (who is not the person (P) in CHI 4.1.) must be being granted settlement at the same time, or be settled or a British citizen, unless:
(a) the person (P) in CHI 4.1. is the applicant’s sole surviving parent or has sole responsibility for the applicant’s upbringing; or
(b) the decision maker is satisfied that there are serious and compelling reasons to grant the applicant settlement.

Please could you consider making an application via a different route, the incorrect application will stay open so that you can make your new application and vary from the old one to the new one so that there is no break in your leave and that your new application will be considered in time.]

[meself2]

Could you please tell me which route and which visa I should apply for my younger son in these circumstances?

Child's visa will be granted in line with less privileged parent's visa. You'd have to extend your child's visa (child dependent I guess) and wait until your husband gets ILR, so your son can get ILR.

I'm not sure if he could apply for ILR on his own merits as he's going to be turning 18 soon - other members will advise further.

[carsheeba]

Thank you meself2. I greatly appreciate your response.

[zimba]

Thank you meself2. I greatly appreciate your response.

You seem to have made the common error of thinking that children have a 5-year residence requirement and then they settle but in reality, they do not have any residence requirement at all. They simply settle when both parents settle. Apply for the child using form FLR(M) and move the child to the family route. Your son can apply on his own merits for ILR via long residence by 2025 as an adult.