wrong visa endorsement

[saqibmalik11]

Hello everybody. I wish to take input from senior learned members regarding my particular case. I am a UK settled person.My spouse applied for settlement spouse visa in Pakistan. The marriage took place back in Jan 2002. My first ever visit outside Pakistan was in July 2006. We as couple have lived together for more than 4 years outside UK.
The BHC in Pakistan granted her spouse/cp visa. where as as per my understanding she should have been issued d settlement spouse (KOL req). The matter was brought into BHC. The BHC official acknowledged on telephone that there has been a mistake and the endorsement needs to be corrected. He asked for the scanned images of all the pages of sponsor's passport. After laps of months I received e-mail saying that the endorsement granted is right. I support my claim as follows

The relevant parts of the Immigration Rules are Paras 281 to 282; especially Paras 281(i)(b )(i), 281(i)(b )(ii) and 282( c).

Para SET3.23 What immigration conditions apply upon entry to a spouse applicant?
Quote
The applicant will normally be admitted for an initial period of 27 months.

After satisfactory completion of this period, indefinite leave to remain (ILR) may be granted on application to the UK Border Agency.

However, where an applicant:

• has been married to the sponsor for at least four years and they have been living together outside the UK during that time; and
• has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he/she is aged 65 or over at the time of the application (see SET16 Knowledge of Language and Life in the UK - The KOL provision); and
• the sponsor has a right of abode/indefinite leave to enter; then Indefinite Leave to Enter (ILE) may be granted.
Where an applicant has satisfied all of the requirements for ILE, except the KOL requirement, the applicant should be granted 27 months leave to enter. During this time they can, at any point, satisfy the KOL requirement and then apply for indefinite leave to remain (ILR) in the UK.
(My emphasis)

and as per Leave to enter endorsement and list of conditions required with each code

Quote
Type of visa; Settlement spouse/CP for 4 years but need KOL
Category; D
Endorsement; SETTLEMENT SPOUSE/CP (KOL REQ)
Code; 1N
Duration 27 months
Add endorsement field; Add initial and surname of spouse/CP
ECG chapter; 13

What should be my plan of action now?
Regards

[geriatrix]

I am a UK settled person.

What do you mean by that - a British citizen or a person with settled status (e.g. - ILR)?


regards

[jetnet22]

I look forward to future developments.

[vinny]

Email the official, quoting the immigration rules as you have outlined above.

[saqibmalik11]

I am a UK settled person.

What do you mean by that - a British citizen or a person with settled status (e.g. - ILR)?


regards

yes I have ILR. The BHC officials first acknowledged that there have been mistake but then emailed me after laps of month that the endorsement is correct.

[Greenie]

How did you satisfy the rules on returning residents in paragraphs 18-20 of the immigration rules if you had been living outside the UK for more than 2 years?

[vinny]

Good question. If they accept that you have been outside the UK together with your wife for at least 4 years, then your ILR status may be cancelled. Unless 19 is applicable.

[saqibmalik11]

How did you satisfy the rules on returning residents in paragraphs 18-20 of the immigration rules if you had been living outside the UK for more than 2 years?

I married my spouse back in Jan 2002.My first ever visit outside the country was in July 2006( four years complete hare). I came UK on HSMP and went back to Pakistan in Feb. 2007. I was again admitted in program against HSMP judicial review ( Extension of stay) and I came back to UK in December 2009. Again I got ILR against HSMP judicial review 2 in july 2009.
The relevant rules nowhere say that one should have spent 4 years immediately before application is made.
Please guide me further because I learnt a lot from senior members like you in past.

[Greenie]

The rules do not explicitly say that the 4 years has to immediately precede the application, however, they say this:

the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom

My emphasis

Therefore for you wife to be entitleed to ILE or the SETTLEMENT SPOUSE/CP (KOL REQ) endorsement

you must have been

a) seeking admission for the purposes of settlement at the same time as your wife

b) married at least 4 years ago and since that time had been living together outside the UK

It doesn't appear that this is the case because although you have ILR you were not seeking re-admission for the purposes of settlement and you have not been living together since you were married at least 4 years ago. In which case I believe the endorsement is correct.

[saqibmalik11]

The rules do not explicitly say that the 4 years has to immediately precede the application, however, they say this:

the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom

My emphasis

Therefore for you wife to be entitleed to ILE or the SETTLEMENT SPOUSE/CP (KOL REQ) endorsement

you must have been

a) seeking admission for the purposes of settlement at the same time as your wife

b) married at least 4 years ago and since that time had been living together outside the UK

It doesn't appear that this is the case because although you have ILR you were not seeking re-admission for the purposes of settlement and you have not been living together since you were married at least 4 years ago. In which case I believe the endorsement is correct.

Thank you very much for your reply. I went back to Pakistan in september 2010 and my wife applied for above visa to travel with me.
Anyway does you mean to say that for my wife to get ILR I should have an revoked ILR and I at the same time apply as returning resident? but the Paras I quoted are very misleading. what do you say?
I am really obliged , thanks for your input

[geriatrix]

The endorsement is correct - and your wife has been issued a spouse visa, for which she was eligible. She'll need to apply for ILR as and when she qualifies.

Perhaps the following will make it easier / clear to understand when a spouse may be eligible for ILE, and why your spouse didn't qualify:

We may be able to give you permission to live permanently in the UK as soon as you arrive, if:

• you and your partner married or formed a civil partnership at least four years ago;
  you have spent those four years living together outside the UK;
  you are both coming to the UK to settle here together; and
  you have sufficient knowledge of the English language and life in the UK. (You do not need to meet this last requirement if you are aged 65 or over.)

Had you both lived outside the UK for 4 years, and had you somehow maintained your "settled" status during those 4 years despite living outside the UK, then your wife would have been eligible for ILE.


regards