Immigration Corner | Alternative for children not eligible for indefinite leave to remain

Dear Mr Bassie,

I am applying for settlement on the basis of ‘Private life’ in the United Kingdom, but I am not sure if my children are eligible. Assuming they are not, please advise on what alternatives are available, if any.

OY

Dear OY.,

If the children do not meet the criteria but were born in the United Kingdom, they may still be able to get indefinite leave to remain as dependents if they are applying or have applied for indefinite leave to remain on the basis of their private life and if they were born there.

Also, one of the following must also be true:

• The child’s other parent is currently applying for indefinite leave to remain in the UK;

• The child’s other parent already has indefinite leave to remain;

• The child’s other parent is a British citizen;

• The persons applying is the child’s sole surviving parent;

• The applicant parent has sole responsibility for the child.

• There are serious or compelling reasons why the child should be allowed to stay – they will normally already have permission to be in the UK for the same reasons.

Further, the child must also not be married, in a civil partnership or living an independent life. If the child is eligible, then a separate application must be made for them; they cannot be added to the parent’s existing application.

Persons must apply online for indefinite leave to remain on the basis of your private life.

There is a different way to apply if persons are:

• Under 18 years old;

• Between 18 and 25 years old, and went to the UK as a child;

• Currently in the UK as a dependent on a parent’s visa and are over 18 years old.

Persons can apply online for indefinite leave to remain as a child. Please note that parents can apply on behalf of children under 18 years old. Please be aware that once the application has been started, persons can save the form and complete it later. Persons should also check online what documents they will need to apply, and they must be in the UK to apply.

PROVING IDENTITY AND PROVIDING SUPPORTING DOCUMENTS

As part of the application, persons will need to prove their identity. How this is done will depend on where they are from and the type of passport or resident permit they have.

They will either use the ‘UK Immigration: ID Check’ app to scan their identity document – they will also create or sign in to their UK Visas and Immigration (UKVI) account. Alternatively, they can give their fingerprints and a photograph (biometric information) at a UK Visa and Citizenship Application Services service point. This is to get a biometric residence permit. Persons will be told what they need to do when they are applying.

WHEN TO APPLY

The earliest time a person can apply is 28 days before he/she is eligible. Persons should also check how long they need to have spent in the UK to be eligible. Please be aware that the application may be refused if the application is made earlier.

Also, persons should not wait until their current visa expires. If the visa expires before applying for indefinite leave to remain, they will need to renew it first.

HOW LONG IT TAKES

There is no standard processing time, but persons will usually be told whether the application has been successful within six months.

The application may take longer if the case is complex, for example:

• If supporting documents need to be verified;

• If persons need to attend an interview;

• Because of personal circumstances, for example, if they have a criminal conviction.

If persons urgently need to travel overseas, they should contact UKVI.

If they are eligible for a biometric residence permit, it will arrive up to 10 working days after their decision letter.

IF APPLICATION IS APPROVED

If the application is successful, persons can do the following:

• Work;

• Run a business;

• Study;

• Use public services, such as healthcare and schools;

• Apply for public funds (benefits) and pensions;

• Apply for British citizenship, usually after a minimum of 12 months.

Please be aware that if persons stay outside the UK for more than two years, they will lose their indefinite leave to remain. In addition, they will need to apply for a returning resident visa before they can return to the UK.

Good luck.

John S. Bassie is a barrister/attorney-at-law who practises law in Jamaica. He is a justice of the peace, a Supreme Court-appointed mediator, a Fellow of the Chartered Institute of Arbitrators, a chartered arbitrator, the past global president of the Chartered Institute of Arbitrators, and a member of the Immigration Law Practitioners Association (UK). Email: lawbassie@yahoo.com