Gutted - Need Advice

[TIER1AUSSIE]

Well what an experience that was today.

Went to Premium Service Centre for ILR for dependant son. Here is a the brief need assistance from anyone.

Rejected due to the following

Your application for indefinite leave to remain in the UK as the over 18 child dependant of a points based migrant has therefore been refused.

reason being - Me as the main applicant of Tier 1 entrepreneur granted ILR on Dec 3rd didn't put his application in with mine.
And secondly his mother is in Australia and will be coming back later after her leave has probably run out as she is selling our other assets in Australia.

I can see the mistake Ive made but can't believe its such a harsh penalty. Out of the country 28 days from March 4th. for my son because I didn't put his application with mine.

Anyone got any ideas on how to get around this

Option of wife coming back not possible as she has not done Life in UK test yet.

Cant believe after getting all my tier one stuff done and jumping all the hoops it looks like I've stuffed this up.

Any help appreciated

[Amber]

The issue is:

both parents are being or have been admitted to or allowed to remain in the United
Kingdom save where:
(a) the parent he is accompanying or joining is his sole surviving parent; or
(b) the parent he is accompanying or joining has had sole responsibility for his
upbringing;
or
(c) there are serious and compelling family or other considerations which make
exclusion from the United Kingdom undesirable and suitable arrangements have
been made for his care

You need to get the other parent to the UK.

The issue about his name on your application is irrelevant as:

(i) is the child of a person who:
(1) has limited leave to enter or remain in the United Kingdom under paragraphs 128-
193 (but not paragraphs 135I-135K) and who is being granted indefinite leave to
remain at the same time; or
(2) has indefinite leave to remain in the United Kingdom and who had limited leave to
enter or remain in the United Kingdom under paragraphs 128-193 (but not
paragraphs 135I-135K) immediately before being granted indefinite leave to
remain; and

[TIER1AUSSIE]

Thanks Amber thats what I have thought, issue is that she hasn't passed the life in the UK test and we have about 35 days left before the total leave expires so chances of getting the test and the such sorted before then low.

But thanks for the reply. Appreciated

The issue is:

both parents are being or have been admitted to or allowed to remain in the United
Kingdom save where:
(a) the parent he is accompanying or joining is his sole surviving parent; or
(b) the parent he is accompanying or joining has had sole responsibility for his
upbringing;
or
(c) there are serious and compelling family or other considerations which make
exclusion from the United Kingdom undesirable and suitable arrangements have
been made for his care

You need to get the other parent to the UK.

The issue about his name on your application is irrelevant as:

(i) is the child of a person who:
(1) has limited leave to enter or remain in the United Kingdom under paragraphs 128-
193 (but not paragraphs 135I-135K) and who is being granted indefinite leave to
remain at the same time; or
(2) has indefinite leave to remain in the United Kingdom and who had limited leave to
enter or remain in the United Kingdom under paragraphs 128-193 (but not
paragraphs 135I-135K) immediately before being granted indefinite leave to
remain; and

[Amber]

Why would your spouse need the LIUK test? If she's Australian she would satisfy the English language requirement for entry. I take it your wife doesn't have any leave to enter, is she does, just tell her to get back now! I also take it she is the biological Mother of your Son?

[Amber]

Actually reading the rules, it does not say that the other parent must be present in the UK, but rather they has leave, it could be that your Son is eligible for ILR. Did you tell them your wife had leave to enter/remain?

[TIER1AUSSIE]

Hi Amber,

Yes still need to do Life in the UK even if your Australian. Its full requirement.
On the Tier One Entrepreneur stuff it just says the main applicant needs to have ILR then a dependant can apply.

Mind you took 4 hours and he said he ran this by 6 other caseworkers to give me a no. Also he touched his nose 20 times talking to me and fiddled so hard with his wedding ring it came off his hand. Now despite stuff this up, Im normally no idiot. He really seemed to struggle answering my questions and was def struggling to get his point across. Spoke to the manager they stuck to the part that says
basically i needed to submit it with mine or my wife it can't be done by itself.

I have read on here before where people have had it submitted by themselves over 18 with no parent present or such,

Actually reading the rules, it does not say that the other parent must be present in the UK, but rather they has leave, it could be that your Son is eligible for ILR. Did you tell them your wife had leave to enter/remain?

[Amber]

Yes you need LIUK for ILR. However, for leave to enter you most certainly do not. I took it your wife's leave had expired as you said she was not returning to the UK. Perhaps return to the UKVI office tomorrow, with a print out of the rules, saying wife only has to have leave to remain not be present and ask them to reconsider, get your wife to scan and email a copy of her leave to you to take in. Also show them the rule relating to you having had leave under ancestry before ILR and that also being satisfactory.

[TIER1AUSSIE]

Wife still has leave until 4th of march and need to be approved for ILR in order for him to be approved apparantly they said. Because i WAS THINKing ill just get her to apply.
Put simply though i CANT believe how harsh that penalty is because i applied three months later i could have done it same time as mine but i waited.


They gave me this also

Both of an applicants parents must be lawfully settled in the UK or being granted indefinite leave to remain at the same time as the applicant. Meaning I need to apply his form same time as mine or my wifes.

eXCEPT - iF THERE IS one parent i.e. other dead
Parent has sole responsibility and has had such
serious and compelling family reasons or other considerations - this is the area i think i might tackle. to not allow the application.

That was the one I thought they could just look at and agree hey i missed to fact of putting it together on to my application but he is settle din the uk after 5 years 7 months and wants to stay with his dad. And being 21 means he doesn't want to leave as he has made good friends here, but they just didn't want a bar of it.

Hi Amber,

Yes still need to do Life in the UK even if your Australian. Its full requirement.
On the Tier One Entrepreneur stuff it just says the main applicant needs to have ILR then a dependant can apply.

Mind you took 4 hours and he said he ran this by 6 other caseworkers to give me a no. Also he touched his nose 20 times talking to me and fiddled so hard with his wedding ring it came off his hand. Now despite stuff this up, Im normally no idiot. He really seemed to struggle answering my questions and was def struggling to get his point across. Spoke to the manager they stuck to the part that says
basically i needed to submit it with mine or my wife it can't be done by itself.

I have read on here before where people have had it submitted by themselves over 18 with no parent present or such,

Actually reading the rules, it does not say that the other parent must be present in the UK, but rather they has leave, it could be that your Son is eligible for ILR. Did you tell them your wife had leave to enter/remain?

[TIER1AUSSIE]

SECTION 319J(E) is the one they have hit me with that they say covers it

[TIER1AUSSIE]

Amber

That section I have posted the last part of it says that one parent is being granted ILR and the other is lawfully present in the UK or being granted leave at the same time as the applicant.

So if i already have ILR then my wife only has to be present in the uk it doesn't say she has to apply. SECTION (iv)

[Amber]

Sorry I took it you were under the ancestry route not T1E. Is your wife going to return before Her leave expires!

[spzenthil]

Really sorry to hear about your case TIER1AUSSIE. I have another question along the lines I am planning to do ILR for myself and my wife first. Once we got ours I am planning to do it for my daughter. After reading through yours slightly worried whether this will be off problem?

Thanks,
-Senthil

[TIER1AUSSIE]

Mate do it all in one go. We have just been told lad cannot get it. Absolute Joke, just because I never put it in with my application

[TIER1AUSSIE]

hi amber good news found a solicitor got case law to back it up on making a genuine mistake etc clients they have had same success so going to give that a run thanks and will keep you all updated

Sorry I took it you were under the ancestry route not T1E. Is your wife going to return before Her leave expires!

[O_Relly]

Good luck mate!