Spouse Flp (Fp) applicaton refusal,urgently need advise

[chaudhry777]

Factual Background of the case:

My wife entered the UK in July 2009 as PSW dependent visa
Our son born in UK. he is 4years and 6 months old going to school, started his reception year in Sept 2014.
ON 16th October 2013 I submitted entrepreneur application along with my dependents, visa was expiring on 28th October 2013(student visa, wife and my son were dependent) so it was in time application.
while entrepreneur application was pending my 10 years completed and applied 10 years long residency visa on 08th August 2014 which is still under consideration.
My wife applied for FLR FP visa with our son as dependent on 12th August.
My wife is currently 28 weeks pregnant(notified to HO but no proof was sent)
My wife FLR FP application refused on 27th Oct 2014 with no right of appeal stating

" An application was made on your behalf on 12 August 2014. however, your leave to remain expired on 28 October 2013. you therefore did not have leave to remain at the time of your application.
your application for leave to remain in the UK has been refused and you no longer have any known basis to stay here. there is no right of appeal against this refusal."

My solicitor challenged this decision by sending HO Pre action protocol letter stating" THE HOME OFFICE has failed to acknowledge that our clients husband application to remain in UK as a TIER 1 Entrepreneur migrant dated 16th Oct 2013 is pending before Home Office. the same application included our client and her son as My dependents so section 3c Act 1971 must be applied on my wife application.

I also received an email on 3rd Oct 2014 from HO administrative Office regarding our previous and current applications. see below

I am an immigration caseworker working for UK Visas & Immigration and am currently dealing with applications for further leave to remain in the United Kingdom.

(a) On 16 October 2013 you submitted a T1 HS Entrepreneur – Leave To Remain application which included your 2 dependants:

Dependant Partner
Dependant Child

(b) On 8 August 2014 you submitted a Long Residency (10 Year) – Indefinite Leave To Remain application

c) On 12 August 2014 my wife submitted an application for Leave to Remain - which included a Dependant Children

Please confirm which application(s) you wish to pursue and I will pass all documentation on to the appropriate team.

my solicitor replied to HO administrative officer "We represent the above referred applicants. We confirm that the applications submitted in August 2014 are to be considered. The previous applications should therefore lapse."

HO administrative officer confirmed us by email see below

I have marked the Tier 1 Entrepreneur & 2 dependant applications void and raised a refund request which will be dealt with by a separate department at a later date.I have now sent all the documents to be linked to the August applications .

After this HO refunded my entrepreneur application fee but failed to refund my dependents fees.

It is been nearly 2 weeks to sent Pre action protocol letter to HO and haven't heard anything from them. now my solicitor will submit application for Judicial review .

Keeping in view the background of our case I need advise from all of you what are the chances we can win the Judicial review based on the factors explained above.
Is my solicitor taking the steps in the right direction?
In between If I get 10 years long residency visa will it be helpful to legalize my dependants? I assume my son is born here so he wont get problem but for my wife still it will be an issue ?
do we need to send GP letter to HO that my wife is 28 weeks pregnant and unable to travel?


Please I need advise from all of you

Many thanks

[Obie]

She ought to have asked that the FLR(FP) application be put on hold pending the outcome of your ILR application.

You solicitor seem to have messed up the whole applications and confused the Home Office.

Set (LR) does not include dependents, therefore a dependent cannot be in that application.

It was after you vary to SET (LR) that your wife's application should have been varied and then asked for it to be put on hold, pending the determination of your application.

[chaudhry777]

Thanks Obie For the reply.

My solicitor mentioned in my wife application covering letter that my SET(LR) application is pending so link FLR (FP) application with the determination of my application.

My solicitor has written to Home Office in the pre action protocol letter " the reason for refusal is factually wrong. the Home Office has failed to acknowledge that our clients husband application to remain in UK as a Tier1(Entrepreneur) Migrant dated 16 October 2013 is pending before Home Office. The same application included our client and her as my dependents, given them reference of section 3c of immigration act 1971 that my dependents were not over stayer at the time of varying the application. Home Office failed to acknowledge that our client application was in time"

so what will be chances to win the judicial review ?? in between I am still waiting the outcome of my SET(LR) application. If ILR is granted to me will it make any difference to my dependents pending JR application?