Eligible for ILR, but waiting for family to join

[bygodsgrace]

Hi All,

I am a Tier 1 General migrant and I am eligible to apply for ILR currently. But I am waiting for my family to join me here in UK by the end of this year and then apply together. I have a couple of questions related to this as my wife is not eligible (eligible only by December 2014) for ILR at the same time as I am.

1. Can my wife continue her stay in UK as a Tier 1 General dependant even after I get approved for ILR? Her Tier 1 dependant visa expires only by March 2016.

2. Can I combine my application for ILR with my children? Are they eligible for ILR even though my wife is not elgible at the moment?

Thanks in advance,

[geriatrix]

1. Yes.
2. When did your wife and child apply for leave as PBS dependants for the very first time?

[bygodsgrace]

Hi sushdmehta,

Thank you for your quick reply.

Answer for your question is as follows:

Wife: June 2010 as work permit dependant
Child 1: May 2012 (current one valid till march 2016)
Child 2: November 2013 (future)

Thanks once again,

[geriatrix]

I assume child 1 was born outside UK and child 2 will also be born outside the UK. In such case,

Child 1: Yes, you may include the child in your settlement application.
Child 2: (I believe) cannot be included in your settlement application and will need to wait to be included in your wife's settlement application as and when she becomes eligible.

319J(e)(iv).

[bygodsgrace]

Thanks once again for your prompt reply.

Yes both of them were/will be born in India.

Can you clarify the situation for child 2? The plan of action is as follows:

1. Apply for Tier1 dependent visa for child 2 from India in November 2013
2. My wife and children will travel to UK to join me, may be by end of December 2013.
3. I will apply for ILR along with both of my children by January 2013. Is this possible?

Thanks,

[geriatrix]

Is this possible?

My response above is what I believe is possible.

319J(e)(iv).

Click on the link and read the mentioned immigration rule.

[bygodsgrace]

Hi sushdmehta,

Thanks for the link, after reading it several times what I understand is that the child 1 falls under that rule and for child 2, both parents should be settled in UK. Is my understanding correct?

[geriatrix]

Yes.

The rule allows your elder child to be included in your application but restricts your (to be) born child from being included in your application since he will be applying for PBS dependant (for the first time) after 09-Jul-12. So, the second child will have to wait and apply for settlement with mum.

[bygodsgrace]

Thanks a lot for your clarification.

In that case would you recommend me to go ahead with my ILR application alone and then later apply for visa for my second child when they are ready to travel to UK?

To be more precise, if I change my visa status to ILR now

1. Can my wife's and elder child's visa status remain as Tier 1 General dependant?
2. Can my wife and elder child travel to UK with the same visas (Tier 1 dependant) when they are ready to?
3. What type of visa that I need to get for my little one from India?

Thanks in advance,
Aks

[geriatrix]

If you apply for settlement now and assuming it is granted before your second child is born and ready to apply for entry clearance, the issue is that your wife and elder child will be on PBS dependant leave but your second child will need to apply for entry clearance as a child of a settled person. So he will need to apply for settlement under the family route rather than through the PBS dependant route (that your wife / elder child will apply under). And also that your elder child will have to wait until your wife becomes eligible for settlement.

So, to keep things simple I would suggest that you wait until your family returns and apply for settlement along with your elder child.

1. Yes.
2. Yes.
3. PBS dependant, if you remain a PBS migrant till then. If you are granted settlement by then, then as child of settled person.

[bygodsgrace]

Hi sushdmehta,

Thanks a lot for your valuable time.

So he will need to apply for settlement under the family route rather than through the PBS dependant route (that your wife / elder child will apply under).

Is settlement under family route different from settlement under PBS dependant route? Can you please guide me to the UKBA links for the eligibility criteria under this category?

And also that your elder child will have to wait until your wife becomes eligible for settlement.

Why my elder child has to wait till both parents are eligible for settlement? Any link which I can refer to?

Another possible scenario which I would like to check with you is as follows:

1. Apply for PBS dependant visa for my younger one by November/December 2013.
2. Family will not travel to UK (Should the younger child travel within 3 months of visa issue?)
3.Change my visa status to ILR
4. Family travelling to UK using PBS dependant visa
5. Apply for settlement for my elder child or for all my dependants together whenever they become eligible (whichever is possible)

Is the above scenario possible? Or is there any variation of the above scenario possible in my case.

Once again I am very thankful for your valuable time and attention to my queries.
Regards,
Aks

[geriatrix]

Is settlement under family route different from settlement under PBS dependant route? Can you please guide me to the UKBA links for the eligibility criteria under this category?

Yes, two mutually exclusive categories with different immigration rules. See Children of British citizens and settled people

Why my elder child has to wait till both parents are eligible for settlement? Any link which I can refer to?

Because the PBS dependant child cannot apply for settlement separately unless both parents have settled status (319J(e)).

Another possible scenario which I would like to check with you is as follows:

1. Apply for PBS dependant visa for my younger one by November/December 2013.
2. Family will not travel to UK (Should the younger child travel within 3 months of visa issue?)
3.Change my visa status to ILR
4. Family travelling to UK using PBS dependant visa
5. Apply for settlement for my elder child or for all my dependants together whenever they become eligible (whichever is possible)

Is the above scenario possible? Or is there any variation of the above scenario possible in my case.

When did your family leave UK?
When does their current leave expire?
If they do not intend to return soon after the birth of of your second child, when do you expect them to return (latest) by?

[bygodsgrace]

Hi sushdmehta,

Thanks once again for your crisp answers.

When did your family leave UK?
When does their current leave expire?
If they do not intend to return soon after the birth of of your second child, when do you expect them to return (latest) by?

They left UK on May 2013.
Their current leave expires by March 2016.
They are planning to return by March 2014 latest.

Thanks,
Aks

[geriatrix]

1. Apply for PBS dependant visa for my younger one by November/December 2013.
2. Family will not travel to UK (Should the younger child travel within 3 months of visa issue?)
3.Change my visa status to ILR
4. Family travelling to UK using PBS dependant visa
5. Apply for settlement for my elder child or for all my dependants together whenever they become eligible (whichever is possible)

Yes, it is doable.

You haven't specifically mentioned it but I am assuming that you will be applying for settlement as a PBS migrant and not under long residence. All my responses are based on that assumption.

[bygodsgrace]

Hi,

If you are okay with both children applying for settlement until such time that your wife becomes eligible for settlement, then yes, it is doable.

My wife will be eligible for ILR, if she is in UK for four months (assuming that the 2 years stay need not be continuous, can you please confirm this?). Hence I might apply for kids's ILR along with my wife's.

You haven't specifically mentioned it but I am assuming that you will be applying for settlement as a PBS migrant and not under long residence. All my responses are based on that assumption.

Yes I am applying for settlement as a Tier 1 General Migrant.

Thank you once again,
Aks

[geriatrix]

This topic will help you understand when your wife may be eligible for settlement.

[vinny]

If you apply for settlement now and assuming it is granted before your second child is born and ready to apply for entry clearance, the issue is that your wife and elder child will be on PBS dependant leave but your second child will need to apply for entry clearance as a child of a settled person. So he will need to apply for settlement under the family route rather than through the PBS dependant route (that your wife / elder child will apply under). And also that your elder child will have to wait until your wife becomes eligible for settlement.

So, to keep things simple I would suggest that you wait until your family returns and apply for settlement along with your elder child.

1. Yes.
2. Yes.
3. PBS dependant, if you remain a PBS migrant till then. If you are granted settlement by then, then as child of settled person.

If you are granted settlement, then I think that second child may still apply for entry clearance as a PBS dependant, in line with wife's PBS dependant leave (319I).

[geriatrix]

Indeed.
Thanks for that, Vinny.

In light of this, I don't see any issue if OP applies for settlement alone before his family returns.

[bygodsgrace]

Thanks both of you for your wonderful replies.

So in my case can you please confirm if the below plan of action will work for me?

1. Apply ILR for me first and all my dependants are still in India.
2. Apply dependant visa for my second child in line with my wife's PBS dependant visa (who's payslips and bank statements should be shown?)
3. Bring all of them to UK.
4. Apply ILR for all of them when my wife becomes eligible for ILR.

Thanks in advance,
Aks

[bygodsgrace]

Thanks both of you for your wonderful replies.

So in my case can you please confirm if the below plan of action will work for me?

1. Apply ILR for me first and all my dependants are still in India.
2. Apply dependant visa for my second child in line with my wife's PBS dependant visa (who's payslips and bank statements should be shown?)
3. Bring all of them to UK.
4. Apply ILR for all of them when my wife becomes eligible for ILR.

Thanks in advance,
Aks

Can sushdmehta or vinny help me on this?