Immigrationboards.com

Hello All,

My history:

• Came to UK on tier 2, 5 years back with a kid as a dependent.
  My wife came with me to the UK but on her own student visa. She later applied to be my dependent after 2 years.

ILR:

Since I was eligible I have recently applied for ILR for myself and my child since I thought he came with me to the UK and he would be eligible.

Problem:
I receive an email from immigration officer which states the following,
"Regrettably, since the child's mother lacks settlement, the child does not meet the criteria outlined in SW 39.4."
Also asked me when the mother will be submitting her settlement application?

Solution offered by the officer:
Surprisingly a chance/offer was given by the immigration officer below,

"Alternatively, if we proceed with the existing application, it is improbable that it will result in a favorable outcome for the child. therefore, we are extending the opportunity for you to vary the application and re-apply for permission to stay."

In the email it also says the following,
"Please note that our system does not allow us to alter an application type of an existing application. Therefore, to pursue this option, you must submit a new application for the child. The current application will remain active, allowing you to transition from the existing one to the new application. This ensures continuous leave for the child and allows the new application to be processed within the stipulated timeframe."

Suggestion/help required:
I can understand now that I am not fulfilling the rule 39.4 since we both are responsible for the child as a parent.

My interpretation of the immigration officer response is that the immigration officer asking me to make a new application but is it mine or my child new application? Also is he going to withdraw us from the current one? but if that's the case then are they going to refund us?
Do Home office refund after application is sent to them just because we made a mistake?

Your answer/suggestion would be much appreciated.
Thank you

The child's settlement will follow the Pathway and timeline/eligibility of the other parent.
It's the child's application that needs to be varied and not yours.
Refund will are made automatically though you from experience you may have to follow up to get it.

The child does not qualify for ILR. Refund unlikely given: Immigration and nationality refunds policy

AmazonianX wrote: ↑

Thu Oct 19, 2023 12:50 am

The child's settlement will follow the Pathway and timeline/eligibility of the other parent.
It's the child's application that needs to be varied and not yours.
Refund will are made automatically though you from experience you may have to follow up to get it.

Thank you @AmazonianX.

Since the child's settlement application will follow the pathway of "the other parent", the problem is that "the other parent" will be submitting her application after 2 years (2025)! how can I vary the application now!

The other idea i had is to submit another application without the dependent(child), but in this case my question is
1. Since my existing application is Main applicant + dependent can I apply a varying application where it will be just me (the Main Applicant)?

2. If the above is possible then I guess I might be able get a refund on my first application fees since variation applies!?

3. For my new application do I still need to go through with the same process of getting my biometrics done etc?

Your answer would be deeply appreciated.

zimba wrote: ↑

Thu Oct 19, 2023 2:10 am

The child does not qualify for ILR. Refund unlikely given: Immigration and nationality refunds policy

Exactly, so what if I vary the application and send a new one without the child! would that helps to get the money back from the first application?

That is your only option. Excluding the child will render their application withdrawn. As you enrolled the biometrics refunds will not be given for the fees paid for the child. This would be the case even if you varied the child's ILR application to a 'limited leave to remain' application for the child. Variation from ILR to a visa will not qualify for a refund, unlike variation from IRL application to ILR application

@zimba Thanks for setting it straight

zimba wrote: ↑

Thu Oct 19, 2023 2:27 am

That is your only option. Excluding the child will render their application withdrawn. As you enrolled the biometrics refunds will not be given for the fees paid for the child. This would be the case even if you varied the child's ILR application to a 'limited leave to remain' application for the child. Variation from ILR to a visa will not qualify for a refund, unlike variation from IRL application to ILR application

Many thanks for clearing that there won't be any refund.

I can see I have two options here.
1. Let the caseworker know that I would like to proceed which would result in my ILR being granted whereas my child will be refused.
2. The other option is to resend the application again while waiting for decision (varying) and exclude my child application (indirectly withdrawing his application).

WIth these two options above considering that the child already have a tier 2 dependent visa till 2025, which one would you guys recommend me to go for?

Lastly, I would like to know since I applied for priority service and the application decision is still pending (mainly due to my response) will I be able to claim priority service fees? If yes, how do I claim this please.

I am honestly very thankful for your response.

The choice is yours. You can choose any of the two options. The priority fees will also not be refunded as UKVI communicated with you the issue and it was your mistake (not theirs)

zimba wrote: ↑

Thu Oct 19, 2023 11:20 am

The choice is yours. You can choose any of the two options. The priority fees will also not be refunded as UKVI communicated with you the issue and it was your mistake (not theirs)

Thank you for your help Zimba.

Dear All,

Can anyone advice me how long will it take to get a decision on my application.
I have submitted an application using priority service (5 days result). However, due to an email regarding offer to vary the application which I did respond immediately. How long will it takes now to get a decision on my application since I didn't receive any response from the case worker yet.

Arkey2023 wrote: ↑

Wed Oct 25, 2023 12:49 pm

Dear All,

Can anyone advice me how long will it take to get a decision on my application.
I have submitted an application using priority service (5 days result). However, due to an email regarding offer to vary the application which I did respond immediately. How long will it takes now to get a decision on my application since I didn't receive any response from the case worker yet.

No one can offer any advice on that. This is up to the UKVI. There are no service guarantees, so when you do not have a straightforward case you are advised not to apply using priority service.

zimba wrote: ↑

Thu Oct 19, 2023 11:20 am

The choice is yours. You can choose any of the two options. The priority fees will also not be refunded as UKVI communicated with you the issue and it was your mistake (not theirs)

I asked them for clarification and this is what I got,

"The first option is to proceed with the dependant application as normal. This will lead to their application being refused as they do not meet the criteria to be granted Settlement at this time.

The second option is for you to vary your child’s application to that of Leave to Remain. You will need to pay all the associated fees required for their new application and submit new biometrics. Once it has been accepted this application fees will be varied and refunded back to you. You will also be required to pay the Immigration Health Surcharge – Here is the link:
https://www.gov.uk/healthcare-immigrati ... cation/pay"

Now I am going for option two where they will Refund the application fees. But my question is what do I vary the application with! Of course I will need to vary it with what I am eligible for and that is Tier 2 Child dependent visa (which he is already on). Now either the caseworker will refuse that application by saying he is already on in until 2025 OR he will grant a visa AGAIN. either way the ILR application fees will be refunded!?

You seem to misunderstand what variation actually means. Variation refers to changing the 'ILR' application to a new 'Dependnat' application'. It will be a as if you made a new application for the child which is totally permitted. The fact that the child holds a valid visa on the same route until 2025 is irrelevant. They would grant a new visa with 3 years on it again. If you do not want this, then you can choose the refusal option and the child's visa remains valid until 2025.

The only difference is that you get the ILR fees back with a variation but then you have to pay for a dependant visa + IHS fees. With the refusal option, you simply lose the ILR fees paid for the child. As you were told before, this is totally UP TO YOU.

zimba wrote: ↑

Wed Nov 15, 2023 10:36 am

You seem to misunderstand what variation actually means. Variation refers to changing the 'ILR' application to a new 'Dependnat' application'. It will be a as if you made a new application for the child which is totally permitted. The fact that the child holds a valid visa on the same route until 2025 is irrelevant. They would grant a new visa with 3 years on it again. If you do not want this, then you can choose the refusal option and the child's visa remains valid until 2025.

The only difference is that you get the ILR fees back with a variation but then you have to pay for a dependant visa + IHS fees. With the refusal option, you simply lose the ILR fees paid for the child. As you were told before, this is totally UP TO YOU.

Many Thanks Zimba.

I completely understand variation but it was hard to understand why a person would apply for a visa that he already got! and further question myself what if they reject it or cancel the first one or reset the clock etc.

I deeply appreciate your response on this made it crystal clear now. I will update here once I get a response on my case for others to learn from my mistake and options that I have selected.

Thanks again Zimba!