Entry clearence visa for children born in India

[ramu3060]

Hi all,
I need some advice regarding my child's visa application for entry clearence to UK. I am on ILR visa since 01/07/2016. My wife is on Tier 1(General) dependant until June 2019 but eligible for ILR in september 2018 as she originally came to UK in October 2013. I have two children who were both born in India. Currently my wife and two children are in India. Under which visa category can we apply for entry clearence for my both children? I have mixed advices from different people like:
1. Apply for Tier 1 dependant for children in line with mother's visa. or
2. Apply for Family Visa of settled person. or
3. Switch wife visa category from Tier 1 to family of settled person visa as this option resets my wife ILR time
Please advice me which is the most suitable option for my children visa to get approved or guide me to link where can i find appropriate link to immigration rules? Thank you

[vinny]

If you were granted ILR under PBS then 1.
If you were granted ILR under Long Reisidence, then 2 and 3.

[ramu3060]

Hi vinny,

Thanks for your prompt reply.
1. I was granted ILR on basis of Tier 1 general- PBS.
2. I understood, i can apply for my children under PBS dependant - leave to enter.
3. Sorry to ask you this but i want to get it right: if i read the rule 319H(b)(ii) combined together as: The applicant must be the child of a parent who has leave to remain as the partner of a relevant points based system migrant. As i am not on points based system any more, does this rule apply to us? because this is the rule which was given in your link
4. Also can you please advice me on below statement from immigration rules 319 H:(f) Both of the applicant’s parents must either be lawfully present (other than as a visitor) in the UK, or being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant or one parent must be lawfully present (other than as a visitor) in the UK and the other is being granted entry clearance or leave to remain (other than as a visitor) at the same time as the applicant, unless:
(i) The Relevant Points Based System Migrant is the applicant’s sole surviving parent, or
(ii) The Relevant Points Based System Migrant parent has and has had sole responsibility for the applicant’s upbringing, or
(iii) there are serious or compelling family or other considerations which would make it desirable not to refuse the application and suitable arrangements have been made in the UK for the applicant’s care.

I am confused from above rule because as she is not making any visa application, we do not satisfy above rule. My wife has unexpired leave to remain until June 2019. Please kindly provide me with relevant information. Thank you for your patience

[CR001]

3. But your wife is a PBS dependent so the child gets a visa in line with the mother. If you apply for a settlement visa, it will be refused if your wife does not apply for the same visa category.

4. Your wife has valid leave, away from UK at the moment, but is usually 'lawfully present'.

You are overthinking this.

[ramu3060]

Hi CR001,
Can you please guide me to an immigration rule which says 'one parent on ILR, another parent on PBS dependant and children can apply based on PBS dependant but nothing to do with main applicant(ILR)'. Does the same rule apply if mother is on ILR and father on PBS dependant. Just wanted to clarify. Thank you

[CR001]

Hi CR001,
Can you please guide me to an immigration rule which says 'one parent on ILR, another parent on PBS dependant and children can apply based on PBS dependant but nothing to do with main applicant(ILR)'. Does the same rule apply if mother is on ILR and father on PBS dependant. Just wanted to clarify. Thank you

Yes, the same rule would apply if the mother had ILR and the father was the PBS Dependent.

immigration-for-family-members/dependan ... 14832.html

[ramu3060]

Hi CR001,
This clears most of my queries. This is my last doubt which is my eldest son came to UK in October 2013 as tier 1 dependant but went back to India in July 2015 and since then he stayed there. His visa expired in India and as he is going to make new entry clearance application, is there any chance his application is going to be affected IN ANYWAY due to his absence from UK. Thank you for your help

[secret.simon]

Yes, the same rule would apply if the mother had ILR and the father was the PBS Dependent.

A simple way of understanding the situation is
"Children born to non-EEA migrants outside the UK have the same UK immigration status as that of the less-privileged parent."

The gender of the parents is irrelevant.

[CR001]

Hi CR001,
This clears most of my queries. This is my last doubt which is my eldest son came to UK in October 2013 as tier 1 dependant but went back to India in July 2015 and since then he stayed there. His visa expired in India and as he is going to make new entry clearance application, is there any chance his application is going to be affected IN ANYWAY due to his absence from UK. Thank you for your help

No, children are not subject to absence limits.