ILR under discretionary due to exceptional circumstances

I am a British passport holder secured in 2022, secured ILR in Dec 2020. I have family of 3 kids. where youngest child born in Uk in 2018 and he is British citizen as soon as i got ILR

Initially I, my wife, and my eldest child (born in 2007 in India) came to the UK on Aug 27th 2010. I was on ICT pbs established visa, my wife and elder child PBS dependent visa at the time of Entry aug 27 2010.

• However my wife and elder child went to India in July 2013 (she had a valid PBS dependent visa at the time of leaving the country) on vacation. They intended to return to Uk promptly. Later she realized that she was pregnant. As per previous medical history and complications associated with back pain/pregnancy, Indian doctors advised to stay back and not to travel. we have the documents on the same from genecology doctor and psycraist letter where advice being given
• My wife spouse visa and elder child visa expired on 8th March 2014 When she was in India. She successfully gave delivery to my 2nd child in March 7 2014. she couldn't file the application within 28 days of visa expiry given the case she is unable to go from village to visa office. also, it was C-section and back pains where the doctor advised not to travel. Once the new baby born in march 2014, it took time for her passport 2 months, later she applied visa on July 2014 and visa approved 17th august. she travelled to Uk on 3rd sep 2014.
• She travelled 3rd sep 2014 back to the uk. she is continuous exemptions from 2014 till date. she has appendix fm spouse visa made on 2021 july. her visa expires in nov 20 2023
•
• My eldest child has got same gap of mother. eldest child born in India 2007
• My 2nd daughters (second child) is born in India in 2018 and currently her visa expires in nov 2023

2 options

1. Apply FLR for the whole family (wife and 2 kids) before Nov 19th OR
2. Apply ILR for my wife ONLY as a discretion before nov 19th, better same day or 5 days application
3. Apply for 2 children FLR on nov 15th, appendix fM

If the decision comes positively for my wife ILR, then we can vary the existing dependent visa application for Childs to ILR
. If the decision comes negatively for my wife ILR, then HO may give option to apply
FLR appendix FM. we may lose the fee of 2048 ILR application fee if they reject ILR

Please advise which opt on is best. Thanks in advance

If you have strong evidence to ask for discretion under long residence, apply for SET(LR) directly for her. I suggest using form SET(F) for the kids so that if her SET(LR) succeeds, then kids can get ILR without the need to vary FLR(M) and paying IHS.

Many thanks

1. Assume if I submit my wife application for set lLR in this month under fast track same day or 5 day, then HO may say may say need time due to comexity of the application say 4 or 5 months. How long it may take max months though I apply same day for discretionary long residence applications in general?

2. If her ILR under duscretion/exceptional circumstances got rejected, say in May or April 24,Then will HO Ask her to apply spouse visa or ask to travel back?
Because her actual long residence settlement date from sep14 is AUG24 (if discretionary of 2013 to 2014 got rejected). Will she get opportunity to apply spouse visa in April or may 24? Or any other visa till aug24 or hp may say go back as it's not fulfil 10 years continuity and discretion rejected

3. Also what happens if kids set f got rejected in April. Will they get opportunity to apply appendix. F dependent visa?

4. Am I taking serious risk ?

1. I strongly suggest not applying via priority as she normally does NOT qualify for ILR and needs discretion being applied. This often means that senior caseworkers may get involved and a longer processing time

2. That is not how things work particularly for people under the family route. ILR under Long Residence is a human rights application too, so it comes with appeal rights. UKVI might even ask her to apply for a new application if they do not exercise discretion. In the worst case scenario, she will apply again FLR(M) under the family route and continue her residence.

3. They will be offered visas under the family route, there will be no rejection

4. The risk is mostly financial. You may wait until next year and apply without any issues

Many thanks

Point 2 : assume if i apply standard ILR visa on nov 15th, it takes time due to complexity application as you say.
if her ILR got rejects in next year April or May/June 24 with or without any appeal decision,
can she has chance to apply new application spouse visa , so that she can eligible for long residence in aug 24.

or a) she doesn't have any chance for any application like spouse as ILR under discretion got rejected?
b) her clock will reset to 0, is any probability 50 vs 50 for this

Point 3 : If i apply FLR F for 2 children, what visa they grant?

4 : have they met the guidelines of flr F eligibility?
(elder child - born in India may 2007 v- Entry visa to uk -aug 2010 - PBS dependent visa - she has got same gap of her mother like 2013 to 2014 - pbs dependent visa from 2010 to may 21 - moved to spouse Appendix FM visa in may 21 - current spouse visa expires in nov 18 2023. )
Younger child born in India march 2018 - entry visa sep 2014 to uk - PBS dependent visa until may 21 - may 21 moved to dependent appendix fm visa - appendix dependent visa expires in Nov 2023)

5. Can i apply same day for FLR F for children, is any IHS fees increasing for FLR F,
if IHS not applicable for FLR F, can apply on nov 15th 2023(as IHS fee increasing for few applications from 4th oct 2023)

5, can i follow this route without risk
apply flrm for my wife before oct 4'23, once her spouse arrives-> wait until aug 24 -> apply ILR on aug 24
apply flrm f for 2 kids at the end of the visa term like nov 15th'23 -> if ILR visa arrives for them - > apply British passport direclty in aug 24 as mother got ilr in aug 24 and dad also british passport

Kindly help me as am in severe pressure as time is very less for oct3rd as IHS fees increases from october 4

She can apply again if refused. There will be no changes to ILR clock. There is no such thing as FLR(F), only form FLR(M). Children settle with their mothers and their visa route is mostly irrelevant. They are already under the family route anyway. SET(F) either leads to ILR if the mother is settled or leads to an offer of visa under the family route as they are children of a British citizen. IHS payment applies to all applications other than ILR.

You cannot apply for a British passport for a child who is not British. Children born outside the UK have no entitlement to British citizenship. They must hold ILR and at least one parent must be British and the other must be at least settled in order to register them as British (via the discretion of HO) using form MN1. After they become British, you may apply for their British passports.

I got confused, would u clarify me

My query is
1)If my wife ILR visa got rejected say next year April'24 may-> has she has to go back India or
her clock reset or
can she still apply for flrm M spouse visa.

2)Because her exisitng current spouse visa expires in Nov 23, so in April 24 if her long residence visa rejects, then it's overstaying. So immediately she has to apply spouse visa in April (on the day of rejection of long residence) as her long residence due on Aug 25

3) what is set(f)

Can I apply for my 2 child now. What is the use of this application and what the outcome if it success?

4) If set (f) is not success in next 3, 4 months, what visa my children have to apply assume if mother Visa ILR also rejects

@Zimba, I'm also lost....

wife and elder child went to India in July 2013 (she had a valid PBS dependent visa at the time of leaving the country) on vacation.

she applied visa on July 2014 and visa approved 17th august. she travelled to Uk on 3rd sep 2014.

So by my Maths, continuous residency is broken, out of the UK for over 1 year.

New residency starts in Aug, 2014. Set LR would be July 2024 (28 days before)

she has appendix fm spouse visa made on 2021 july. her visa expires in nov 20 2023

So clock resets.

2 ways to ILR (Set M & LR) and the shortest way there is LR.

Where any how is discretion applicable?

OP's wife normally does not qualify as I stated, discretion might be applied if she was told not to travel for the whole period of her pregnancy. She wanted to travel but could not. As I said this is possible if only strong evidence is provided by the OP

vanisrini15 wrote: ↑

Mon Sep 25, 2023 4:05 pm

I got confused, would u clarify me

My query is
1)If my wife ILR visa got rejected say next year April'24 may-> has she has to go back India or
her clock reset or
can she still apply for flrm M spouse visa.

2)Because her exisitng current spouse visa expires in Nov 23, so in April 24 if her long residence visa rejects, then it's overstaying. So immediately she has to apply spouse visa in April (on the day of rejection of long residence) as her long residence due on Aug 25

3) what is set(f)

Can I apply for my 2 child now. What is the use of this application and what the outcome if it success?

4) If set (f) is not success in next 3, 4 months, what visa my children have to apply assume if mother Visa ILR also rejects

1,2. She applies again within 14 days of refusal under family route FLR(M) and continues her status. Nothing changes to her ILR clock as paragraph 39E applies, so overstaying becomes a non-issue

3,4. SET(F) form is an ILR application for children under specific routes. e.g. when both parents are settled. I already covered when and why you should apply. The UKVI will offer a visa instead to such children if SET(F) cannot lead to ILR

ILR Long Residence is rarely given at discretion. And your case is particularly weak.

vanisrini15 wrote: ↑

Sun Sep 24, 2023 11:49 pm

she travelled to Uk on 3rd sep 2014.

It appears that your wife will be eligible for ILR LR in August 2024 anyway (factoring in the 28 day in advance leeway). Can you make a cogent argument as to why she can't wait till then to apply for ILR? Is there a pressing or critical reason for her to be given ILR now? Such exceptional reasons can be if for instance your wife has been accepted for a job that requires at least ILR, etc.

Also note this passage from the Breaks in continuous residence section of the ILR Long Residence caseworker guidance.

If the applicant has been absent from the UK for more than 6 months (184 days) in one period or more than 18 months (548 days) in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.

This must be decided at senior executive officer (SEO) level with a grant of leave outside the Immigration Rules being the appropriate outcome.

So note that
(a) Any request for discretion will mean that the case will have to be escalated and it is not worth applying for super-priority or priority for such an application.
(b) if the discretion is exercised, the applicant (your wife) gets further leave outside the rules, not ILR.

Note further in the same link

for overall absences of 548 days in the 10 year period:
you must consider whether the long absence (or absences) that pushed the applicant over the limit happened towards the start or end of the 10 year residence period, and how soon they will be able to meet that requirement
if the absences were towards the start of that period, the person may be able to meet the requirements in the near future, and so could be expected to apply when they meet the requirements

So, don't bother with an ILR LR application now. Make a normal extension application for your wife and children and apply for ILR in August 2024 when they are eligible.

vanisrini15 wrote: ↑

Mon Sep 25, 2023 2:22 pm

apply flrm f for 2 kids at the end of the visa term like nov 15th'23 -> if ILR visa arrives for them - > apply British passport direclty in aug 24 as mother got ilr in aug 24 and dad also british passport

To add to what @zimba has said above, British citizenship is never acquired automatically except at birth. Acquisition of British citizenship at any time after birth requires either registration (before 18th birthday) or naturalisation (after 18th birthday).

Once the children meet the requirements, they will need to be registered as British citizens and then, once they have received a registration certificate, they can then apply for a British passport.

Currently, it is possible to register as British citizenship if the children and their parents have lived legally in the UK for ten years, as they will likely have in August 2024. So, at that time, provided they have a valid visa, they can be registered directly as British citizens and then apply for a British passport.

History : Mother and 2 children currently on spouse visa appendix fm and their visa expires in nov 2023

Mother has continuous residence in uk from 2010 (pbs dependent visa) to 2023 Nov(spouse vsia) except 2013 july to 2014 Sep.
when she left in UK on 2013 July she has valid visa but visa expires in march 24, given birth to baby in march'24. applied Indian passport for the baby in Apri'24l. once passport arrived, applied visa in July at india, travelled in sep 2024. Due to health issues doctor advised to not to travel when she was in india
she had similar problems in 2012 July in uk. so we have uk and India doctor evidences. this is genuine discretionary as my wife suffered a lot with various complications
elder child born in India in May 2004. she arrived uk in 2010 along with us on dependent visa and leads same gap of her mother in 2013 to 2014 as she travelled with her mother
2nd child born in India in march 2024. she arrived uk in sep 2014

We have 2 options

Option 1 - under discretionary exceptional circumstances apply long residence visa for my wife in oct 2023;
kids set F visa.
if HO eject mother visa in march/apri'24 apply spouse visa for her in march/April and wait till aug'24, if they don't give decision by then, vary the spouse visa application till aug 24 for ILR
but for kids set F they may give some visa as they are here continuously 9.4 months and dad is British passport


Demerit of option 1 : 1. LONG WAITING:
If they reject discretionary in next year like march or April 24 , apply spouse visa and even if they don't give decision by august, vary the spouse visa to ilr in Aug. 24 same day. but they put into complex application and again it may take 6months. so 2025 January to be waited. .
2., total cost more than 11 k if they reject
Merit : 1. if they give discretion visa for my wife ILR in march or April, then kids set f also can vary to ILR, so total 7500 cost for all overall (approximately),
2. ILR also can get in less time like march or April 24. but for this option 50 vs 50 chances i guess as it is purely discretionary.

Option 2 : straight forward
apply before October 4 - spouse visa for my wife and dependents visa
they get 2.5 years visa may be in march or April 24. my wife and kids can travel India if any emergency
apply ILR in Aug. 2024 once they reach 10 years continuous long residence

demerit : cost 15000 overall now extension of appendix fm dependent visa + irl fee 7500 for all 3
need to wait until next year Aug. 24 for ILR
merit : simple straight forward process without long waiting when ILR comes
also can apply same day ILR on aug 24 as the history is clean without rejecting

iam tend towards to option 1 as my wife has genuine health reasons and she suffered a lot in 2012 in uk with doctor treatment and also in 2013 to 2014 in India but only problem if application rejects too much waiting from now till may be next Jan 2025 as her ILR route in aug 24 they may put into complex route rather straightforward

Kindly suggest

Option 1 - under discretionary exceptional circumstances apply long residence visa for my wife in oct 2023;
kids set F visa.
if HO eject mother visa in march/apri'24 apply spouse visa for her in march/April and wait till aug'24, if they don't give decision by then, vary the spouse visa application till aug 24 for ILR
but for kids set F they may give some visa as they are here continuously 9.4 months and dad is British passport

That is all at their discretion, so approach it as such. Just a caveat that in case of SET(LR) rejection, you said that you apply for a spouse visa and aim to vary this to SET(LR) if you do not hear back, but do not do this. She needs to regularise her stay first if she gets refused, so the spouse visa application must be granted. This is so the period of her overstaying can be ignored under paragraph 39E for SET(LR) application in the future

Option 2 : straight forward
apply before October 4 - spouse visa for my wife and dependents visa
they get 2.5 years visa may be in march or April 24. my wife and kids can travel India if any emergency
apply ILR in Aug. 2024 once they reach 10 years continuous long residence

This is still your best option. See Zimba's explanation, it is not as simply for Option 1 as you think it is and it will still cost you lots of money and additional stress and anxiety.

Many thanks for the suggestions, i chosen option 2 which is simple and straightforward without risk.

My wife spouse visa may 2021 - nov 23. Now am filling application to extend her spouse visa family route

i got the below question in the application form , kindly suggest me is it correct

Please choose the reason you are applying for an
extension, this includes if you are switching to a
partner visa from another type

ans : First extension as a partner (following an initial
period of entry as a partner, or as a fiancé(e) or
proposed civil partner of a settled person)

Yes, it is self explanatory

Thankyou

one more question, regarding absences do we need to mention all the absences from beginning of entry clearance?
eg : my wife arrived aug 2010 as pbs dependent visa but she travelled in 2012 to india for vacation, also travelled aug 2013 to sep2014 and visa extended in india as visa epries in march 2014 and arrived uk in sep 2014 freshly after a year gap.
also she travelled in aug 2015, 2016, 2017, 2018 etc
her last spouse visa from PBS dependent visa is May 2021.
so do we need to mention all gaps from 2010 or only from 2014 sep would be sufficient?

Only the last 10 years

Many thanks,
there is one question
Country you lived in and Date you lived there from
can i write like this
I was born in India in xxx and stayed with parents till xxth march 2008.
arrived uk on xx march 2008 and stayed in UK till feb xxth 2009 and again went back to India.
stayed in india from 16th feb 2009 till xxth aug 2010 and arrived in uk on Arrived uk again on 27t Aug 2010


actually in another questoin, i was giving info for the question when did you first arrive uk, i was giving last 10 years, so sep 2013 as its fresh entry clearance after a 1 year break

Thanks

there is a question- when did you arrive UK

actually do we need to mention the last 10 year one which is freshly arrived 2013 or the old one date too like 2008 which is the first entry date?

First arrived - March 2008 till feb 2009 - spouse to join visa
gap of 16 mohts in inda from 2009 to aug 2010
2010 aug - fresh pbs dependent visa
again 2013 - 2014 - india stay march 2014 visa expired, applied in july 2014
2014 aug - pbs dependent visa..continuous stay


so i have doubt which date to mention when did you arrive UK question

These are now being asked and answered multiple times on a daily basis. NONE of these questions are essential. Answers to these questions DO NOT change your eligibility as determined by the rules. Answer them as you see fit

Thanks,

for spouse visa extentio, i have the below 2 questions, where iam getting confusion

1. What type of visa, leave to enter or remain or other Family
permission do you have to be in the UK?
ans : can i select option Family?


What UK visa, entry clearance or grant of leave do spouse partner - leave to remain
you have? - can i write Spouse partner - leave to remain

note : spouse partner-leave to remain is the one available in my wife brp card

Kindly assist me

I assume you are filling FLR(M) ?? Then it all looks ok

yes, am filling the below form for my wife and kids extention

https://www.gov.uk/government/news/new- ... next-month

i got confused with 2 questions in 2 times

1. have you been out of the uk since you started living here?
ans : all abscens from begging out from uk - i need to give all absences from 2008 as her firs entry to uk is 2008
after few pages another section
ans
2. have you ever visited or lived in another country
ci cannot give answer as No as she visited india and multiple times since 2008

repeating 2 times for 1 application and repeating 2 children applications same answer make too much efforts and also application lengthy

problem is 2008 intial entry till 2009, anfter that 2010, 2011, 2012, 2013 short visits and again 2013 to 2014 long gap, 2015, 2016,2017, 2018, 2019, 2020, 2022...everyyear gaps till 2023...so filling is so complex

any suggestions please to avoid 2 times or better to add 2 times in these 2 sections