UK born child ILR rejected, now applying from abroad, don't need citizenship - Father (ILR), mother (T1G PBS dependent)

[frankwu1642]

Hi,

I have ILR since 21-Jul-2016 after 5 years Tier1 General 07-Jun-2011 to 11-Jun-2016.

My wife has been my Tier1 General PBS dependant from 10-Feb-2014 till 21-Jul-2019.

My son was born 05-Jan-2016 in UK, now having a Chinese passport so he cannot have British citizenship.

I applied for ILR for my son in April 2017 from inside UK because we need to travel abroad and was unfortunately rejected, administrative review also negative. He was issued an enforcement notice to leave the country with deadline of 23-Aug-2017. We contacted voluntary departure department and was told he could stay for a little longer while we arrange his journey. My wife took him abroad on 11-Sep-2017 to apply for his new VISA from there. We've been communicating with voluntary departure department throughout the process.

Consulted solicitor and was told my son currently is not eligible for ILR and he should apply to be dependant of my wife then apply along with my wife for ILR when she reaches 5 years. The solicitor doesn't sound very sure himself.

I have four questions hoping the experts here could kindly answer:

1. The enforcement notice had a deadline of 23-Aug-2017 and they left 11-Sep-2017, does this count as overstay and will this affect his futuer appliction? (I was told by voluntary departure team it will be fine, but I was also told by the Home Office helpline three times that my son should apply for ILR using SET(O) form.)

2. My wife took a long holiday abroad 04 Oct 2014 - 28 Feb 2015 148 days, and now she is abroad again which we would assume be about 4-5 months to sort our my son's VISA. Does that break her continuous stay? (I read everywhere that it is not more than 180 days during any 12 months, but I saw one post mentioned no more than total of 180 days in 5 years)

3. Is the solicitor's advice correct? Dependant of a dependant?

4. Exactly which form should I be using for my son's applictaion from outside UK? (I went through all the categories I could find and appears he fits in none of them)

I would really appreciate your answers. Many thanks.

Regards
Frank

[CR001]

1. The enforcement notice had a deadline of 23-Aug-2017 and they left 11-Sep-2017, does this count as overstay and will this affect his futuer appliction? (I was told by voluntary departure team it will be fine, but I was also told by the Home Office helpline three times that my son should apply for ILR using SET(O) form.)

Did or does your son have a PBS Dependent visa??

2. My wife took a long holiday abroad 04 Oct 2014 - 28 Feb 2015 148 days, and now she is abroad again which we would assume be about 4-5 months to sort our my son's VISA. Does that break her continuous stay? (I read everywhere that it is not more than 180 days during any 12 months, but I saw one post mentioned no more than total of 180 days in 5 years)

There is NO absence limit for PBS dependents.

3. Is the solicitor's advice correct? Dependant of a dependant?

Child will need a visa and it will be in line with the mothers visa, PBS Dependent (child).

4. Exactly which form should I be using for my son's applictaion from outside UK? (I went through all the categories I could find and appears he fits in none of them)

Online form only, link below, for Tier 1 General dependent visa if this is the visa your wife currently holds.

https://www.gov.uk/tier-1-general/family-members

[frankwu1642]

Hi CR001,

Thank you so much for your immediate reply.

My son didn't have any VISA prior to the failed ILR application. Does that affect the other answers?

Thank you for the link. On my wife's current BRP card valid until 21-Jul-2019 it says PBS DEPENDANT LEAVE TO REMAIN, same as her previous one valid until 11-Jun-2016. Is there a way to confirm whether it is the same VISA as the link pointing to?

I looked at the link, a little confused. When it says 'your family member' 'your dependent' 'your income', in my case should it be my wife or me? Who should provide the supporting documents?

Thanks again. Much appreciate it.

Regards
Frank

[CR001]

My son didn't have any VISA prior to the failed ILR application. Does that affect the other answers?

The the refusal is likely correct as he had no 'valid leave to remain'.

Thank you for the link. On my wife's current BRP card valid until 21-Jul-2019 it says PBS DEPENDANT LEAVE TO REMAIN, same as her previous one valid until 11-Jun-2016. Is there a way to confirm whether it is the same VISA as the link pointing to?

Yes, child applies for Tier 1 General dependent. You could have applied for this visa in the UK.

I looked at the link, a little confused. When it says 'your family member' 'your dependent' 'your income', in my case should it be my wife or me? Who should provide the supporting documents?

Not sure what you are referring to. I don't have access to the online application forms so you would need to list the options you are given. The child is the main applicant.

[vinny]

Have they removed A277, A280(b), 304-309 from the Immigration rules?

[frankwu1642]

Thank you both CR001, vinny,

@vinny, 'Have they removed A277, A280(b), 304-309 from the Immigration rules?' Sorry I cannot remember what exactly reason the solicitor explained.

@CR001, I took a closer look, I found the following item at bottom of the link you sent me:
https://visas-immigration.service.gov.u ... dant-child

Since my son has already left UK as requested by the enforcement notice, am I right to say he can no longer apply for this one? It sounds like it is for babies that are born in UK but have never left UK.

Many thanks again.

Regards
Frank

[CR001]

Since my son has already left UK as requested by the enforcement notice, am I right to say he can no longer apply for this one? It sounds like it is for babies that are born in UK but have never left UK.

Child should apply for the same visa the mother holds, Tier 1 General dependent.

[frankwu1642]

Thank you again CR001.

I created an online account and started an application, glad to find there is a category under 'Work' -> 'Tier 1 (General) Dependants' -> 'Tier 1 (General) Child'.

While I was filling the online form on his behalf I found some fields a bit confusing:

1. Country of residence - Your permanent country of residence.
Shall I use the temporary address my son is staying in China at the moment (my parents' address)?
Or shall I use my address in the UK where he has been and will be living in?

2. A question regarding who will be travelling with him back to the UK. His sister has ILR, the question is:
Do they have a valid VISA for the UK? Yes/ No/ Not required
Does ILR count as a VISA? I am trying to figure out whether the answer should be 'Yes' or 'Not required'

3. What is your permanent residential address and contact details?
Same confusion as Q1.

4. Have you ever travelled to the UK in the past 10 years?
He arrived in the UK by birth, not any journeys, I assume the answer should be 'No'?

5. Have you been refused a VISA for any country including the UK in the past 10 years?
Same confusion as Q2. Is ILR a VISA?

Sorry this is getting into a lot of details, any answers you may have will be extremely helpful. Thanks again.

Regards
Frank

[frankwu1642]

Hi Further down the form, found more questions:

6. Have you been refused entry to the UK in the last 10 years (for example at a UK airport or seaport)?
He was here and asked to leave, so the answer should be 'No'. I am not sure the word 'refused entry' is meant for a physical action or an immigration status?

7. Have you been deported, removed or otherwise required to leave any country including the UK in the last 10 years?
He choose voluntary departure so not deported or removed. But the question also mentioned 'required to leave' which is true as he was given a enforcement notice. If the answer is yes, will be given the follow fields to fill:
a.Country deported from
b.Date of deportation/removal
c.Port or airport
d.Reason for deportation/removal
These fileds seem only cover deportation and removal. And following this question there is another one Q.8 below which is more relavent. So to Q.7 shall I answer 'No'?

8. Have you ever voluntarily elected to depart the UK?
If answer yes, will be given the following fields to fill:
a.Departure date
b.Port of departure
c.Immigration decision and the papers you were served
d.Reference number

9. About the Main Applicant
He is applying as 'Work - Tier 1 (General) - dependants only - Tier 1 (General) Child'
As you mentioned earlier he should be in line with my wife, but now I have ILR and am no longer Tier 1 General, who should the main applicant be? Me or my wife?

Many thanks again.

Regards
Frank

[vinny]

I had forgotten about this topic.

Did you resolve your child's problems?

Actually, the simplest is just to register child.

They were crazy to force a UK born child to leave the UK, or to apply for leave, when child was entitled to register after a parent has ILR.

Moreover, child was lawfully in the UK, without having to apply for leave.