BRP expired before ILR eligibility, what are the options now?

[rajeevk]

Hello everyone,

I need some help/advice regarding the application for a PBS-dependent visa extension for my child and wife. Here is the situation:

I got a Tier 2 general visa, first issued in November 2017 for three years and extended in July 2019 for another validity until October 2023. I got the ILR in December 2022, and now I have British citizenship.

My 3-year-old daughter and my wife got our Tier 2 general dependant visa in October 2019. They have been in the UK since October 2019 and got visas that were valid until September 2023. At the time of their five-year visa application, we made IHS payments for five years for both wife and child. They continued in the PBS dependant, which expired in Sep 2023.

She needed to apply for a visa extension in Aug'2023, which she missed. The expiry date totally slipped out of our minds. We realised it in Dec 2023, when I started my citizenship process, but by that time it was too late. My ILR showed as valid till Dec'2023, and at the same time, my Indian passport was also going to expire in Feb'2024. So we thought, let me complete the process so that we can have all the proper documents. We contacted the Home Office, and they said it was fine and we could apply for BRP replacement as the fees are already paid and they have the eligibility. They mentioned /suggested "form Settle in the UK as the partner of a person, or parent of a child, who is in the UK and settled here: form SET(M)" and put the above conditions in the explanation, mentioning IHS payment.

Now, when we try to fill out the form for the visa extension, it does not permit us to proceed as BRP has expired, and there are no simple forms for BRP replacement.

What options do we have now? Should we directly apply for ILR in a few months after completing 4 years or 11 months, or is there some option to get a BRP replacement?

Thanks in advance!

[CR001]

So their visas expired last year and you haven't done anything to sort their visa status out??

They cannot apply for ILR if they do not have a valid visa.

A BRP replacement is NOT the same thing as a visa extension and a visa extension is inly relevant if they hold a valid visa to extend.

[rajeevk]

So their visas expired last year and you haven't done anything to sort their visa status out??

They cannot apply for ILR if they do not have a valid visa.

A BRP replacement is NOT the same thing as a visa extension and a visa extension is inly relevant if they hold a valid visa to extend.

The Home Office helpline doesn't say this. She even talked with them today, and they said, "You can apply for an expired BRP replacement." However, we can't find the form.

[CR001]

The call centre is outsourced to a third party agency. You are not talking to ukvi staff at all.

The advice you get also depends on what and how exactly you asked and if your query has been understood.

Your only option for them now if FLR fp I think which will be a new 5 or 10 year route to ilr.

A BRP replacement is for if your valid BRP is lost or stolen or your ilr BRP is expired. It is not a visa extension application.

Form set M you have tried to complete is for ILR which they can't apply for as they don't hold the relevant visa category anyway, which is spouse of settled person visa for 5 years.

They could have applied for ILR on form SET O before their visas expired.

There is no easy or cheap way to fix this now. You are looking at quite a few years before ilr for them now.

[vinny]

We contacted the Home Office, and they said it was fine and we could apply for BRP replacement as the fees are already paid and they have the eligibility. They mentioned /suggested "form Settle in the UK as the partner of a person, or parent of a child, who is in the UK and settled here: form SET(M)" and put the above conditions in the explanation, mentioning IHS payment.

That appears to be completely wrong answers! They were/are ineligible to apply for BRP replacements. They can't apply for SET(M).

The consequences of overstaying are severe.

SW 27.1. and 9.8.1. prevents them from applying for entry clearances as Skilled worker dependants.
SW 27.2. prevents them from extending.
SW38.2. prevents them from applying for ILR.

They may have to return to their home country, apply for family (partner and child) visas and start all over again on the 5 year family route.

If they apply (partner and child) in the UK and succeed, then they would be on a 10 year family route.

However, if your daughter was born in the UK, then she is entitled to register as a British citizen.

[rajeevk]

We contacted the Home Office, and they said it was fine and we could apply for BRP replacement as the fees are already paid and they have the eligibility. They mentioned /suggested "form Settle in the UK as the partner of a person, or parent of a child, who is in the UK and settled here: form SET(M)" and put the above conditions in the explanation, mentioning IHS payment.

That appears to be completely wrong answers! They were/are ineligible to apply for BRP replacements. They can't apply for SET(M).

The consequences of overstaying are severe.

SW 27.1. and 9.8.1. prevents them from applying for entry clearances as Skilled worker dependants.
SW 27.2. prevents them from extending.
SW38.2. prevents them from applying for ILR.

They may have to return to their home country, apply for family (partner and child) visas and start all over again on the 5 year family route.

If they apply (partner and child) in the UK and succeed, then they would be on a 10 year family route.

However, if your daughter was born in the UK, then she is entitled to register as a British citizen.

Thanks for such a detailed response. I understand that this is a big fault on our side, and wrong advice from the home office has made this situation more complex. She has call records of all these discussions she had with them, but I don't think that can help much.

Finally, this means they don't have any other options but to apply for the "family visa." The daughter was also born in India, so she is also not eligible. However, we have another kid born here, so he may get it next year.

Can you please advise on how complex it is to get a family visa from inside the UK in these circumstances? And why is the same route different for years to get ILR? Thanks

[rajeevk]

The call centre is outsourced to a third party agency. You are not talking to ukvi staff at all.

The advice you get also depends on what and how exactly you asked and if your query has been understood.

Your only option for them now if FLR fp I think which will be a new 5 or 10 year route to ilr.

A BRP replacement is for if your valid BRP is lost or stolen or your ilr BRP is expired. It is not a visa extension application.

Form set M you have tried to complete is for ILR which they can't apply for as they don't hold the relevant visa category anyway, which is spouse of settled person visa for 5 years.

They could have applied for ILR on form SET O before their visas expired.

There is no easy or cheap way to fix this now. You are looking at quite a few years before ilr for them now.

Thanks for the detailed response. What exact category should they apply for now from inside the UK?

We have one more kid born here, so returning to India and applying from there isn't possible right now. Thanks

[vinny]

Can you please advise on how complex it is to get a family visa from inside the UK in these circumstances? And why is the same route different for years to get ILR? Thanks

The in-country family route is 10 years, due to the overstay. However, they may switch onto the 5-year family route as soon as they have been granted leave (on the 10 year route) and are eligible. But the 5-year qualifying period for SET(M) would exclude leave on the 10-year route.

[rajeevk]

Can you please advise on how complex it is to get a family visa from inside the UK in these circumstances? And why is the same route different for years to get ILR? Thanks

The in-country family route is 10 years, due to the overstay. However, they may switch onto the 5-year family route as soon as they have been granted leave (on the 10 year route) and are eligible. But the 5-year qualifying period for SET(M) would exclude leave on the 10-year route.

Thanks, Vinny. If possible, can you please provide more details about "as soon as they have been granted leave" and "5-year qualifying period for SET(M) would exclude leave on the 10-year route"?

[vinny]

As they are overstayers, E-LTRP.2.2. prevents them from applying for FLR(M) directly. They may apply for FLR(FP), subject to EX.1. This puts them on the 10-year route.

After being granted leave on FLR(FP), they may switch to FLR(M), subject to satisfying the financial and other requirements. The 5-year qualifying period for SET(M) starts when the initial 2.5 years FLR(M) is granted.

[rajeevk]

As they are overstayers, E-LTRP.2.2. prevents them from applying for FLR(M) directly. They may apply for FLR(FP), subject to EX.1. This puts them on the 10-year route.

After being granted leave on FLR(FP), they may switch to FLR(M), subject to satisfying the financial and other requirements. The 5-year qualifying period for SET(M) starts when the initial 2.5 years FLR(M) is granted.

Thanks, Vinny. Let me try to find some legal advice in the context provided and try to proceed. I am very grateful for the detailed information you have provided. Thanks

[vinny]

Good luck! Do let us know how you get on.