ILR of Spouse of Tier-1 Entrepreneur Visa (Now British)

[helios3]

Hi Admins,

I have a query, pls help.

My wife came to UK in March 2019 as Tier-1 ENT dependent when I was on Tier-1 Entrepreneur Visa.
Then I applied for my ILR in Sept 2019 and applied for her extension on the dependent of Tier-1 ENT route.

I received my ILR in Jan 2020 and she received 3 years of Tier-1 ENT dependent visa. Her BRP says:
''PBS Dependent Leave to Remain''

I received my Citizenship in March 2021.
We went overseas to our home country in March 2021 during Covid and got stuck there due to covid restrictions in the UK.
Then my child was born overseas in May 2021 and my wife could not return to UK without her.
We applied for our child's British Passport from overseas in July 2021 because I was British by then.
HMPO guideline said they issue overseas passport in 12 weeks but they took 10 months to issue the passport.
So my wife got stuck there as she could not come back to the UK without the newborn baby.
Finally my newborn child received the passport and my wife came back to the UK in May 2022.

14 months absence from the UK.
Then she applied for extension of her PBS dependent route in January 2023 and received 3 years of visa.

Now my Question is that her 5 years in the UK completed in March 2024 but she was outside the UK for 14 months breaking the 180 days outside the UK clause.
BUT it was due to she stuck overseas due to Covid and then our child was born overseas and for their British passport, HMPO took 10 months so my wife could not come back.

Now can she apply for her ILR now and state the reasons
1- Covid restrictions/red list UK
2- HMPO took 10 months to provide passport of newborn in overseas and she could not left the newborn and comeback.

will she get ILR on humanitarian grounds? Her spouse (myself) and all children are British.
OR
Home Office will reject the application and we shall go to court?

Does this situation has a chance of winning the case in court? Because once Covid restrictions were lifted in 2021, she wanted to come back but due to HMPO taking time to issue passport to newborn, she could not as mother leave her newborn child overseas and come.
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Summary of Events:

March 2019: Your wife came to the UK as a Tier-1 Entrepreneur Dependent.

Jan 2020: You received ILR; your wife received 3-year PBS Dependent visa.

March 2021: You became British. You and your wife travelled overseas.

May 2021: Your baby was born abroad.

July 2021: Applied for the baby’s British passport.

May 2022: Your wife returned to the UK after 14 months abroad (due to UK COVID travel restrictions and long passport processing 10 months delays by HMPO).

Jan 2023: She applied for visa extension as PBS dependent and received another 3 years.

March 2024: 5 years on the PBS Dependent route completed, but includes 14-month absence.

I believe Home Office guidance does allow discretion for absences exceeding 180 days if there are compelling or compassionate reasons.

What are our chances?

Sorry for the long message.

Please advise

[zimba]

We cannot tell you whether the UKVI will exercise discretion or not. It is all up to them to exercise discretion in her case. You can take your chances and make case for it, however there are no guarantees

[helios3]

We cannot tell you whether the UKVI will exercise discretion or not. It is all up to them to exercise discretion in her case. You can take your chances and make case for it, however there are no guarantees

Hi Zimba,

Thanks for your reply. Let's say we apply for my spouse ILR and HO does not exercise discretion and if they reject the case, will they ask to apply for 'dependent visa' and pay the fees for it again
OR
will they give dependent visa instead of ILR to complete time and ask to pay IHS?

Please advise

[zimba]

They will not offer anything and you will lose your fees. You need to apply again and pay the fees for any other application

[helios3]

Thanks,
one last Question in this regard, if we apply ILR and get rejected, and if we choose to take the matter to court, do you think it is a wise move? I understand you cannot be 100% on it but just based on your experience, is it wise to go to court and spend more money then to apply dependent visa again?

And what is the turn around time for a normal ILR application these days? Thanks

[zimba]

There are no appeal rights, so you have to go through judicial review and prove that UKVI did something unlawful. Being refused a visa is not on its own unlawful as they followed the immigration rules and she failed the requirements. What is the basis for unlawfulness of such decision ?? It will be an expensive and lengthy process without any section 3C protection. I do not suggest it when someone clearly failed to qualify for ILR

An ILR application can normally take several weeks and most get it before the 8 weeks mark. But it can take up to 6 months or more for complex applications as each case is different

[helios3]

Hi Zimba,

Thank you for your detailed response and for explaining the situation clearly.

Just to clarify, we are not saying that UKVI acted unlawfully in following the immigration rules. Our thought about judicial review was more in the sense of asking the court to look into our genuine circumstances — my wife had to be away for a year due to Covid restrictions, the birth of our child overseas, and long delays in receiving the baby’s British passport from HMPO — and to see if any discretion could be applied on humanitarian grounds.

May I also ask, if my wife applies for ILR before her current PBS dependent visa expires, and her application is still pending after expiry, will she continue to be lawfully in the UK under Section 3C leave, or would she be considered an overstayer?

From your experience, in cases like this, would it be more practical to proceed with an ILR application and set out the circumstances clearly, or instead apply for another extension first and then build towards ILR with a stronger case later?

[zimba]

You are getting ahead of yourself. I suggest applying and seeking discretion, explaining everything in a cover letter. She will be protected by section 3C if she applies in-time