ILR Query for child born in UK

[morty25]

Dear Adviser,
I would really appreciate if you could provide some answers to my query.
I am currently in the process of obtaining ILR as I will be completing 5 years in Tier 2 general work permit visa. My spouse holds a Tier 2 dependent visa for last 2 years hence not eligible for ILR at this time.
I have UK-born daughter (born in April 2017) who is currently in India. My child holds an Indian passport obtained from Indian consulate in Birmingham but she doesn't hold any Tier 2 dependent child visa at the time of travel. (as we had to travel in short period, I couldn't obtain the visa in right time)

Question: What category of visa should I apply for my child while coming back (next year) to UK considering that one of the parent holds ILR and other Parent in Tier 2 dependent visa?
Is my child eligible for settlement same as my category (ILR) ? or Do I have to apply for Family visa and wait for completion of 5 years in order to eligible for ILR?
In what category of visa should I extend the visa for my spouse?


Thanks
Murthy

[CR001]

Same visa as the mother, Tier 2 General dependent child.

[morty25]

Thanks CR001 for your response.
Actually I will get ILR by next month, and I am planning to apply visa for my child once my ILR application is successful, in that case my child cannot apply Tier 2 child dependent visa, isn't it? because the main applicant no longer holds Tier 2 general but a ILR.

[CR001]

Thanks CR001 for your response.
Actually I will get ILR by next month, and I am planning to apply visa for my child once my ILR application is successful, in that case my child cannot apply Tier 2 child dependent visa, isn't it? because the main applicant no longer holds Tier 2 general but a ILR.

If your spouse holds a Tier 2 dependent visa then the child must apply for the same visa, assuming your spouse still has valid leave to remain.

The rules permit this. The child will follow the same path as the other parent. You cannot apply for a different visa category unless you apply for both spouse and child at the same time.

[morty25]

Yes, my spouse hold valid Tier 2 dependent visa until late 2018. Based on your reply, I have to apply for Tier 2 child dependent visa.
Once my spouse tier 2 dependent visa is about to expire, then which category visa should I switch my dependents (Tier 2 dependent visa more than 3 years or Family visa of a settled member) considering that I will be ILR from 2017.
Is possible to extend the stay of tier 2 dependent visa if the main applicant is no more in Tier 2 visa (i.e. now in ILR)?

Thanks in advance.

[CR001]

If you apply for ILR based on Tier 2 and 5 years residence, your dependents can continue to extend their PBS dependent visas till they qualify for ILR.

The rules are only different if you get ILR based on 10 years long residence.

[morty25]

Thanks for the clarification provided.
Can I register my child as a British Citizen once my ILR application is successful?
I understood from the application guidance that atleast one of the parents has to be settled in UK to register as british citizen.
If yes, Can I apply for UK passport for my child from India and surrender her current Indian passport?

[morty25]

Dear Adviser,
I have applied for Tier 2 dependent Child Visa for my daughter Dec/2017. She was born in UK during April/2017 while I was holding Tier 2 General work permit Visa, since then I gained ILR status on Sep/2017.
She traveled to India with a Indian passport (without any Visa) and we applied a Tier 2 Dependent child Visa based on the Guidance - PBS based dependent Family member Version 12. from India and I have get some advise from Immigration board forums too.
Today I received an email from Chennai British High commission that the Visa category that I applied is incorrect and as I hold a ILR instead of a Tier 2 PBS visa. They referring to 319 (c) b(iii) immigration rules and asking me to withdraw the application to avoid refusal.

I have replied back with the references from PBS dependent family member guidlines from gov.uk.
Please advise whether my understanding is correct?? What is next possible actions to avoid Visa refusal??

Your advise much appreciated.
Thanks

[vinny]

Posts merged.

[vinny]

They are referring to the wrong rules.

319C is for partner or spouse.
For child they should look at 319H(b)(ii) and issue visa in line with wife, under 319I.

[Obie]

As child was born in UK, he or she will be entitled to leave in line with dad.

[vinny]

I agree, under A277, A280(b), 304-309. Unfortunately, they may ignore these rules.

Alternatively, register child.

[Obie]

I agree, under A277, A280(b), 304-309. Unfortunately, they may ignore these rules.

Alternatively, register child.

In those circumstances, the person whose rights have been infringed or their parents will clearly be entitled to judicial redress, surely.

[vinny]

Yes, for example, dollypee. I'm waiting to hear what has happened next with them.

[morty25]

Thank you vinny and obie for your reply.
So, do I have to withdraw the application and apply for settlement - child dependent visa.
Is there any way to reassess this case?? Is an email reply to the case worker is sufficient to reconsider this application or is there any other formal way ?

Regards
Moorthy

[vinny]

Respond to the ECO's email. Refer him/her to the correct rules.

[vinny]

Refer to both possibilities:

1. A277, A280(b), 304-309.

2. 319H, 319I.

[morty25]

Thanks Vinny.
I have replied to ECO email and awaiting response.

I have another question, as the application is not yet refused or withdrawn at this stage. Is it possible to do variation application ? (2nd application being settlement - child of a settled person) I understand that I have to pay the difference in application fees.
I am just trying to prepare for the worst case outcome. Please advise your suggestions on this.

[vinny]

To apply as a child of a settled person under Appendix FM, I think (E-ECC.1.6.) your wife would also have to apply as a spouse of a settled person. This would reset her qualifying period.

[morty25]

Does my wife needs to switch to settlement visa right now ?? Or she can wait until the current tier 2 dependent expires. I understand that the continuous period will be resetted, based on my current experience from my child dependent visa application I may have to apply for spouse settlement visa instead of tier 2 dependent extension to avoid refusal.

General advise: did you come across any others facing this problem most recently 2017/2018?
I hope that my reply to ECO to grant leave to remain based of 319h works out.

[vinny]

There is no requirement for wife to switch to spouse of a settled person, if they granted your ILR under PBS.

[vinny]

Alternatively, register child.

Note that registration is an entitlement that makes any visa refusal moot.

[rasheedekm]

Dear Moorthy,

Have your problem solved regarding your child visa? could you please confirm which visa category you have finally got approved?

I am currently on the same situation like yours.

Your advise would be much appreciated.

Many thanks