ILR for a child PBS dependent

[shasha1010]

Good morning, please see below the detailed immigration situation of the family-
H (husband) -
- April 2013 - April 2017 - Tier 2 ICT visa
- April 2017 - Jul 2018 - Tier 2 General PBS dependent Partner
- Jul 2018 - Jul 2023 - Tier 2 ICT visa
- Completed 10 years in UK in April 2023, applying for settlement via the 10 year route

W (wife) -

- Sep 2013 - Dec 2016 - Tier 2 ICT PBS dependent
- Jan 2016 - Jan 2021 - Tier 2 General (sponsorship)
- Jan 2021 - Got ILR

S (son) -
- Sep 2013 - March 2016 - Tier 2 ICT PBS dependent
- April 2016 - Jan 2021 - Tier 2 General PBS Dependent (short of 5 years by 3 months)
- Jan 2021 - Jul 2023 - Tier 2 ICT PBS dependent (could not get ILR as both parents were not settled so shifted back to be a dependent on dad's ICT visa)
- Has completed 9.75 years in UK, short of 10 years by 3 months. I could not apply for his ILR when I got mine because he is not born in the UK and hence both parents had to be settled first.

I am now applying for ILR through the 10 year route for my husband but not sure what is the best route to choose for my son.
- He has spent 4.75 years as a dependent on Tier 2 general on me, and overall always been a PBS dependent.
- He is currently a dependent on his dad i.e. Tier 2 ICT visa, can he apply for settlement while on that visa or that visa type is not considered ?
- Can I apply for his ILR as Set (O) i.e. a child dependent on a work visa using his time as a dependent on me, i.e. Tier 2 general as both parents are now settled (after my husband gets his ILR).
- Are there any other options for children under 18, born outside the UK but having both parents settled ?
- I also read in MN1 guidance (for British citizenship) that if a child completes 10 years in UK lawfully, he is eligible for nationality with both parents settled. My son is short by 3 months, can we still apply or should I get his ILR first and not risk it ?

appreciate your advice, thanks.

[zimba]

Apply for ILR using SET(O). To register the child via discretion, having ILR will be an important factor sometimes

[shasha1010]

Thank you Zimba, when filling in the Set(O) form, i have to choose a parent sponsor -

1. Using Set(O) as a dependent on me (I am already settled using Tier2 General route)
- when i apply using Set(O), if i use myself as the main applicant as I am the parent who is settled. But, the confusion for me is that his current visa is dependent on his dad who has Tier 2 ICT visa and that visa is not considered for settlement. Can that be a concern ?
- Also, He did not complete 5 years as a dependent on me, just 4.75 years, will that be additional concern as well?

2. Using Set(O) as a dependent on his dad (he is getting his ILR now using the 10 year route, his current visa is Tier 2 ICT),
- can i even use this option as his current visa is Tier 2 ICT dependent and this visa type is not considered for settlement ?

Appreciate your support, i am quite stressed at the moment.

[zimba]

Children do not have any residence requirement for ILR as they settle when both parents settle. The child can only settle with you after the father has already settled. The long residence has no concept of dependant as you need to apply and qualify on your own

[shasha1010]

Thank you Zimba, makes sense.

So, to confirm the flow of events, this is what i need to do -
- apply for 10 year route for dad and get his ILR in super priority as the current visa expires in 28 days.
- As soon as i get ILR for dad, apply for my son with Set(O) choosing myself as the main applicant. It does not matter that his current visa is Tier2 ICT dependent on dad, because the visa type is still PBS Dependant and the child doesn't have to be direct dependent of the parent applicant when applying for settlement as long as both parents are settled.

appreciate your confirmation on the above flow and understanding, many many thanks.

[CR001]

The child is the main applicant in the form when applying to ilr, not a parent.

[shasha1010]

Sure CR001, sorry i meant to say i will be the parent sponsor on my son's application.

So to confirm again the flow of events -

- apply for 10 year route for dad and get his ILR in super priority as the current visa expires in 28 days.
- As soon as i get ILR for dad, apply for my son with Set(O) choosing myself as the parent sponsor (I got ILR through Tier 2 General 5 year route in 2021). Although, he is not currently a dependent on me, His current visa is Tier2 ICT dependent on dad but the visa type is still PBS Dependant.
- Does the child not have to be direct dependent of the parent sponsor when applying for settlement as long as both parents are settled ?

[zimba]

There is no sponsor. The child applies on their own as the main applicant as they qualify for ILR

[shasha1010]

yes, you are right, my son is the main applicant in this case. Let me explain what i mean by the parent sponsor.
When i am filling in the Set(O) form, it asks me which category i am applying ILR for, and i choose Tier 2 Dependent.
The next question is "what is your relationship to your sponsor" and the options are partner, child or child under 18. So I choose "Child under 18" here.
Then it asks "details of the person you want to remain in the UK with" and i am giving my details here. So i assume it is treating me as the parent sponsor for the purpose of his application. Is there anything wrong in this?

My original question still remains that can he apply for ILR using Set(O) and myself as the person who wants to remain with, when his visa is Tier2 ICT dependent on his dad ?

Below is an extract from Gov.uk for ILR for dependent child on work visa. As per the below, I had Tier 2 general when i settled so that is fine and my son does not need to be a dependent on me when applying for ILR (highlighted rows). My concern is around the "What visa you must have" and it says "as a dependent on one of these visas", his current visa is Tier2 ICT dependent, will that be accepted ?

Apologies for asking too many questions and not being clear, just want to be sure and i appreciate every word of advice you guys are giving me.

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Eligibility
You must usually have an eligible visa. Which visa you need depends on the visa your parents settled on.


The visa your parents settled on What visa you must have

Any other work visa As a dependant on one of these visas (does not need to be as a
dependant of your parent).

Your parents’ work visa
Your parents’ last work visa can be any of the following:

Skilled Worker or Tier 2 (General)
Scale-up Worker
International Sportsperson, T2 Sportsperson or Tier 2 (Sportsperson)
T2 Minister of Religion or Tier 2 (Minister of Religion)
Tier 1 (Exceptional Talent)
Tier 1 (Entrepreneur)
Tier 1 (Investor)
UK Ancestry
Global Talent
Representative of an Overseas Business
Domestic Worker in a Private Household, if they came to the UK before 6 April 2012

[zimba]

There is no such a thing as Tier 2 ICT dependant visa. There is just dependant visa. All PBS dependants were granted the same visa type, so there is no issue here

[shasha1010]

Sure Zimba, thanks a lot, appreciate your advice.

I have completed the form Set(O) for my son as the main applicant using myself as the parent sponsor (as explained before). What surprised me was that it did not ask me anything about his father's visa or settlement status. It didnt even ask if i am settled, but it asked for my Tier2 visa application details and BRP (which has ILR on it so that is fine).

I am quite surprised that for a child applicant, they didn't ask for both parents' passport and BRP details when it is a requirement that both parents have to be settled. Am i doing anything wrong ?

[zimba]

They do not need to ask you for anything. They have access to all that information on their system. You do not need to tell them that you have settled status when they granted that to you

[shasha1010]

Thank you Zimba, I am facing the similar issue as others that super priority for set(LR) is not showing as available on the website when i go to select the service. I have tried at 12 am/1am etc. and refreshing the page several times. In my case, my husband and son have visa until 17th july so i can't risk it anymore.

I am considering 2 below options -

1. My husband's employer has agreed to extend the stay and give them Tier2 General visa (they have ICT now) so we will submit their applications after he gets the CoS, this will take a week or so but i should be able to submit their applications before 17th July. My question here is if i am able to submit their applications to extend their stay and switch category to Tier2 General (still PBS visa), will that be considered lawful residence, as the decision might come after 17th July but i will have submitted the applications before the current visa expiry. Once i have their visa, i can always apply for Set(LR) ILR for my husband later based on convenience and won't be stressed or under any pressure.

2. Worst case, if i cant get the employer to do it in time, my husband applies with Set(LR) standard now and waits for 6 months to get the decision. In the meantime, how can i extend my son's stay here as a dependent while we wait for my husband's ILR decision as i can't apply for my son's ILR until i get my husband's as well.

a) He can become a dependent on me, I have ILR status since Jan 2021. Which form can i use this in case ?

b) Is there any option to apply for extension for my son on his current visa as a PBS dependant on my husband while my husband waits for his ILR decision which can take 6 months and the visa expires 17th July 2023 ?

which forms to use please in the above cases, and what will be preferred so that they remain in the UK lawfully and we don't breach any rules unknowingly.

Thanks in advance.

[zimba]

Switching is quite pointless and expensive. Your husband should go ahead with his ILR application. For your son, you will apply for his ILR directly before visa expiry. UKVI will hold that application unit your husband's application is granted. Switching/extension is a waste of time and money.

FYI
When you apply for a new visa application before your visa expiry, the provisions under section 3C of the immigration act get engaged when your visa expires. This means your current visa and all of its privileges are automatically extended until a decision is made on your pending application. So the time waiting for the outcome of your pending application is considered lawful residence as if you still have a valid visa. You should not worry about the visa expiry then if you manage to apply for a new application before expiry

[shasha1010]

Thanks zimba, i got the super priority option for my husband last night at 1 am so i have booked an appointment for him for tuesday. Hopefully we will get his decision this week and i will also apply for my son right after that.

I just want to know what sort of documents and how many documents are enough for the last 2 years to show in our names jointly. I am thinking of Council tax for the last 2 years and mortgage statement for the last 2 years as joint documents, and utility bills in his name plus his bank statements as just his documents. In order to cover the last 2 years, do we add a document from every quarter or every month or one document a year is enough ? Thanks in advance

[zimba]

There is no specific requirement. I would say provide at least 3 pieces of evidence from at least 2 sources for the the last two years

[shasha1010]

HI Zimba, thanks a lot for your help, I got settlement visa for my husband and we received the BRP as well on Friday. Now that we are both settled, do i have to use Set(f) for my son's ILR ? Actually i have filled in Set(o) for him but a friend confused me saying that my son hasn't completed 5 years in one PBS category and he has switched categories a few times as well, plus we are both settled now so i should use Set(F) instead.

What's the difference between Set(f) and set(o), which one should i use for my son ?

Recap of his visa history -
Sep 2013- Apr 2016 (31 months) - PBS Dependent Tier 2 ICT (dependent on father)
Apr 2016- Jan2021 (57 months) - PBS Dependent Tier 2 (dependent on me)
Jan 2021-June 2023 (30 months) - PBS dependent Tier 2 ICT (dependent on father, current visa)

Thanks so much once again for your help and advice.

[zimba]

Children do NOT have any min residence requirement as they settle when both parents settle. Even under the PBS routes it was no different. Both SET(F) and SET(O) will work for your child's case. SET(O) cannot be used for children under family routes though

[shasha1010]

Hi Zimba, thank you.
When looking at Set(F) guidance, it says that the child must have a family visa as a child, what is that ?
I don't think my son has family visa, he has PBS dependant visa, which is a dependant on his parent's work visa, so does it not mean we can't use Set(F) ?
Or does it mean that any child who has both parents settled can use Set(F) irrespective of how their parents settled and what their current visa status is ?

Apologies for more questions, I am really confused between Set(O) and Set(F) now and reading the guidance on gov.uk, none of them seems straight forward for my son, but it may be my ignorance or i m missing some key information here. Trust you with clarifying on this, my friend insists i use Set(F) or my application might get rejected if i use Set(O) so i started reading about Set(F) and will appreciate your help on this, can't delay the application any further.

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Apply as a child (family visa)

You may be eligible if both:

you have a family visa as a child - there’s a different way to apply if you’re a dependant on your parent’s work visa
your parent is a British citizen or settled in the UK

You may also be able to apply if any of the following are true:

you’re under 18 and were born in the UK before your parent settled here - you can have any immigration status, including if you never had a visa
you’ve ever been a dependant on a relative’s visa - they must have had refugee status or humanitarian protection before settling in the UK
you have a parent who is applying for indefinite leave to remain as a partner or parent on the 10 year route

[zimba]

A child under the age of 18 whose parents are both settled, can qualify under the Skilled worker rules as well as family rules (as per paragraph 298 of the rules) Hence both SET(O) or SET(F) can be used. I suggest applying using SET(O) and moving on rather than obsessing over these details

[shasha1010]

Thanks Zimba, appreciate your patience with my non-ending questions, just the last 2 now, please don't be mad at me

The 2 doubts i have on Set(O) form that have made me overthink and still doubt myself are the below -

1. On the Set(O) form, the 1st question is "Select a category in which you are applying for indefinite leave to remain" and it does not have any category as PBS Dependant. The closest option is "Skilled Worker, Tier 2 or International Sportsperson dependant". Is it correct to use, given the fact that he is not a Tier 2 dependent at the moment, he is Tier 2 ICT dependent ?
He had been a dependent on my Tier 2 General visa in the past and spent 4.75 years on that but then switched back to being his dad's dependent since Jan 2021.

2. Next question is regarding "who are you joining or accompanying" - Again, I had to choose it as myself as the only option for the allowed visa was "Tier 2 General" for the parent and i am the parent who settled using the Tier 2 General route. My husband settled using 10 year route (9 years on his ICT visa with 1 year as my Tier 2 dependent) so he can't be referred there. They also asked for my CoS details etc on the form later. Does it raise any concerns as he is not currently a dependent on the person he is joining, but a dependent on the other parent ?

I have completed the Set(O) form and will wait for your answers/clarifications before i proceed with submitting it.

If we think there is less risk in Set(F) form and that will be more straightforward for his case as both of us are now settled, i am happy to fill the Set(F) and get this off my mind.

I will opt for priority service anyway but If they ask me for more information or worst case if they question me for an incorrect information or form, does it mean they don't have to treat it as a priority application anymore even if i reply to their concerns straight away ?

Appreciate your quick response, as always !!