B1 TEST FOR ILR

Hi, I'm in a bit of a dilema as to how to go about my application for ILR. The summary of my application with the HO is as stated below

1. Applied for leave to remain on flr fp as an overstayer in 2012 and was granted 10 year leave to remain settlement route

2. Successfully switched to 5 year route in 2015 (2.5 years later) after initial 10 year grant.( I used Naric verification that my overseas degree course was taught in English) and proof of finances

3. I wrongly applied for settlement in 2018 ( with life in UK test certificate and B1 certificate) but was rather granted a further 2.5 years FLR under the 10 year route instead of the 5 year route that the first OPS granted me in the previous application, which I suppose was a mistake by the caseworker because I had previously been granted the 5 year route

4. I will be aplying for ILR in December 2020 but wondering if I can use my expired B1 certificate instead of re-taking the exam again to save £150.

According to the home office rules, an expired B1 certificate can be used to apply for ILR provided it is among the list of approved tests and was used in a previous application. My expired B1 certificate is among the list of approved tests but I'm wondering if it was considered in granting my last leave ( which should have been on the 5 year route to settlement but the OPS strangely stated 10 year route. I'm guessing the OPS might not have referred to HO records for my 5 year grant. Can I still use my expired B1 certificate or do I have to re-take another test?

Many Thanks

You already demonstrated your English language at B1 so no need for new evidence as you already qualify (use the old one)
However, your ILR will be refused given that your 5 years is NOT spent under the 5 year route. I agree that UKVI made a mistake but did you seek to rectify it or not ?!

Many thanks for your reply, Zimba. No I didn't seek to rectify the mistake as I didn't know the process or steps in doing so, and also because I just thought it was a mistake and that it will rectified in my next application. I intend to refer to my previous application in which I was granted the 5 year route to whichever caseworker will handle my next application.
I don't understand why you said I won't qualify for ILR because my 5 years is not spent. My 5 years will be spent by the time I make my next application which is in December 2020. I was granted the 5 year route in 2015.
With regards to using the expired certificate, I'm wondering whether it was considered at all in my 2015 application. If it was then perhaps no need to worry but if it wasnt then won't I have to re-take another one?

Many thanks

You need 5 years on the 5 year route, ie the immigration rules applicable to the specific 5 year route.

If you have been out on the 10 year route at your last extension, which is under different immigration rules to the 5 year route, you cannot apply for ilr yet as you are not on the 5 year route path.

It has nothing to do with how long you have been on a visa or what a previous visa is. It has everything to do with your current visa route and the immigration rules that the current visa has been granted under.

You cannot combine some time from a previous 5 year visa with some time on the current 10 year route visa to make up 5 years for ilr. It doesn't work in this way.

If you apply for ilr, it will be refused and you will get another 2.5 year on the 10 year route.

Thank you for your reply CROO1
So just to clarify, even though I successfully switched to the 5 year family route from 10 year route by applying on form flp fp ( 5 year route) in 2015, I still cannot apply for ILR in Dec 2020?

The HO was right in denying my ILR application in 2018 but should have granted me 2.5 years on the 5 year route instead of the 10 year route because I was previously granted the 5 year route in 2015. The discrepancy in being granted 5 year route in 2015 and being asked to continue on the 5 year route in 2018 when I pre-maturely applied for ILR is what I seem not to understand.
Won't the HO consider that I was already granted 5 year route in 2015 and then ignore the 2018 grant of flr on the 10 year route assuming that was an error by the home office?
Was I granted FLR on the 10 year route because I applied for the ILR when I was not yet qualified?
Would I have been eligible to apply for ILR in Dec 2020 if I had applied for FLR 5 year route in 2018?
Thank you

So just to clarify, even though I successfully switched to the 5 year family route from 10 year route by applying on form flp fp ( 5 year route) in 2015, I still cannot apply for ILR in Dec 2020?

Correct.

The HO was right in denying my ILR application in 2018 but should have granted me 2.5 years on the 5 year route instead of the 10 year route because I was previously granted the 5 year route in 2015. The discrepancy in being granted 5 year route in 2015 and being asked to continue on the 5 year route in 2018 when I pre-maturely applied for ILR is what I seem not to understand.

You should have challenged it at the time.

Won't the HO consider that I was already granted 5 year route in 2015 and then ignore the 2018 grant of flr on the 10 year route assuming that was an error by the home office?

No.

Was I granted FLR on the 10 year route because I applied for the ILR when I was not yet qualified?

Yes.

Would I have been eligible to apply for ILR in Dec 2020 if I had applied for FLR 5 year route in 2018?

Yes.

Many thanks CR001 for your quick reply
Is it too late to challenge the decison now? My next application is in January 2021 but I intend to apply 28 days before my leave expires, so Dec 2020. In the decision I was given I was told there is no right of appeal by the way so I wonder if I could have challenged it in anyway.
This news is so devastating

You could have challenged the decision through Administrative Review or by contacting the caseworker. It is likely too late now.

Many thanks once again CR001 for your immense help. Even though it may be late, I will try challenge the decision through Administrative review as soon as possible. If I'm unccessful I will just apply for FLR again

Dear CR001, I applied for administrative review of the decision on my last application this afternoon online, it cost £80 and should take up to 28 days for a decision to be made.
I was not required to send any documents. I was required to mention why I'm applying late for an administrative review because I think there's a 14 day window within which to apply for administrative review commencing the date an applicant recieves his/her biometric residence card. I stated I quite frankly thought having no right of appeal was the same as having no right to administrative review since it was mentioned in the decsion I had no right for an appeal. I also mentioned I thought the decison was purely a human error by the caseworker and I was hopeful it would have been rectified during my next application.
I stated two reasons why I believe it was an error by the caseworker ;

1. The caseworker had wrongly assumed I still was in an existing relationship with my partner which I was not, because I had already informed the HO in 2015 my circumstances had changed and we had separated, which is part of the reason why I was successful in switching from the 10 year route to the 5 year route.

2. I also stated the caseworker considered my application outside of the immigration rules, which should not have been the case because I was granted the 5 year route to ILR in my previous application WITHIN the immigration rules.
I think the idea of me applying for ILR in my last application instead of a further leave to remain is quite irrelevant, as it was stated categorically they treated it as a further leave to remain application subject to me paying the immigration health surcharge, which I duly paid.

I'll keep you informed about the decision the HO makes in due course.
Kind regards and thank you so much for your help.

tsar_bomb36 wrote: ↑

Tue Jul 14, 2020 2:17 pm

;

1. The caseworker had wrongly assumed I still was in an existing relationship with my partner which I was not, because I had already informed the HO in 2015 my circumstances had changed and we had separated, which is part of the reason why I was successful in switching from the 10 year route to the 5 year route.

Wasn't that a favorable error for you in the grant of leave as otherwise your current leave/status (if under Appendix FM) might have been curtailed where you had to leave the country.

seagul wrote: ↑

Tue Jul 14, 2020 2:41 pm

tsar_bomb36 wrote: ↑

Tue Jul 14, 2020 2:17 pm

;

1. The caseworker had wrongly assumed I still was in an existing relationship with my partner which I was not, because I had already informed the HO in 2015 my circumstances had changed and we had separated, which is part of the reason why I was successful in switching from the 10 year route to the 5 year route.

Wasn't that a favorable error for you in the grant of leave as otherwise your current leave/status (if under Appendix FM) might have been curtailed where you had to leave the country.

That is exactly what I wanted to say

Hello immigrationboard members
I recieved a reply from the Administrative review I applied for on 14 July 2020, unfortunately my aplication was rejected because it is invalid. The exact wording is as below;

''Thank you for your application of 14 July 2020 for an administrative review of the decision on your application for Leave to Remain Outside the Rules on Compassionate Grounds. We are unable to accept this application because it is invalid and therefore it will not be considered. Reasons why the application has been rejected An administrative review application must meet the requirements of paragraphs 34L to 34Y of the Immigration Rules (HC395), as well as the Immigration and Nationality (Fees) Regulations, in order to be valid. We have rejected the application for the following reason(s):The application must be about an ‘eligible decision’, that is, one specified in the Immigration Rules as eligible for administrative review. The decision that you have applied to have reviewed is not eligible for administrative review, in accordance with paragraph AR 3.2 of Appendix AR of the Immigration Rules. ''

I do not even know why they are saying my leave to remain application was outside the rules. Yes in 2012 I was granted 10 year route leave to remain OUTSIDE the rules, then in 2015 my circumstances changed and I applied and I was granted leave to remain 5 year route WITHIN the rules.

It is so frustrating I do not know what to do now. Any advice please?
Many thanks

tsar_bomb36 wrote: ↑

Tue Jul 14, 2020 12:40 am

3. I wrongly applied for settlement in 2018 ( with life in UK test certificate and B1 certificate) but was rather granted a further 2.5 years FLR under the 10 year route instead of the 5 year route that the first OPS granted me in the previous application, which I suppose was a mistake by the caseworker because I had previously been granted the 5 year route

Unfortunately, D-ILRP apparently only permits early ILR applications to be refused or switched to the 10-year path. Surprisingly, there appears to be no options for caseworkers to consider that an early applicant may continue to satisfy FLR(M) under D-LTRP.1.1., the 5-year route.

Thank you Vinny, unfortunately I just have to wait until late 2022/ early 2023 to complete the 10 years and be eligible for ILR

“If you apply for ilr, it will be refused and you will get another 2.5 year on the 10 year route”

Hello CR001, one more question please. You said if I apply for ILR in December it will be refused and I’ll rather be granted another 2.5 years. I’d like to know if that happens will it reset my whole time to beginning of another 10 year route to settlement or it’ll be a continuation of the first 10 year year I was granted in 2012, in which case I’ll be eligible for settlement in 2022? I’m asking because if there is nothing else to lose ( except the extra cost in application fee) then I might as well take my chance in applying for ILR but it it’ll reset my whole time back to a new 10 year route then there’s no point in trying.
Many thanks

You said if I apply for ILR in December it will be refused and I’ll rather be granted another 2.5 years. I’d like to know if that happens will it reset my whole time to beginning of another 10 year route to settlement

Yes for ILR based on the visa route you are on. You don't qualify for ILR based on 5 years spouse visa yet. You need 5 consecutive years on FLR(M) visa.

or it’ll be a continuation of the first 10 year year I was granted in 2012, in which case I’ll be eligible for settlement in 2022?

All visas count for ILR based on 10 years long residence on form SET(LR).

I’m asking because if there is nothing else to lose ( except the extra cost in application fee) then I might as well take my chance in applying for ILR but it it’ll reset my whole time back to a new 10 year route then there’s no point in trying.

You don't qualify for ILR, it will be refused and 2.5 years on the FLR(FP) 10 year route offered.

Dear CR001 Thank you for your time in answering my question but I’m rather a bit confused here. Does that mean even if I should apply for an extension FLR (FP) I’ll be eligible for Settlement 10 years from my last application which was in 2018 and not a continuation of my original 10 year route granted in 2012? Surely the least the Home Office should do is just allow me continue my 10 year route from 2012?

I did clearly state that ALL visas count for ilr based on 10 years long residence on form SET LR. Makes no difference what different visa categories you have held as long as you have 10 years legal stay.

FLR fp 10 year route is simply another route where you specifically need 10 years on the FLR fp visa route and can't include any other visas, such as flr m, in the 10 years for ilr.

Ok thank you for the clarification. You have calmed my nerves a lot . I actually have never applied on form Flr(m). My very first successful application was granted based on my British wife and son in 2012 on the 10 year route, renewable every 2.5 years.
It just so happened that prior to my first renewal in 2015 my circumstances had changed. I was permanently separated from my wife so I applied solely based on my son on flr(fp) and informed the HO about my circumstances. That was how I was granted the 5 year route in 2015. I applied on flr(fp) 5 year route form.
All my future applications will be based on my parental responsibility and not on flr(m).
Thank you so much by the way

Similar restrictions apply with failing E-ILRPT.1.3., D-ILRPT, due to not completing the qualifying period. There are also no apparent options for caseworkers to consider that D-LTRPT.1.1. may be satisfiable.

@Vinny that’s so true and rather unfortunate. Applicants who are on the 5 year route to settlement will have to be on the 10 year route if they apply for settlement too early.

I wonder if it’s deliberate or an oversight?

As a contrast, A277A doesn’t force an applicant to change paths.

It could be deliberate, it could also be an oversight. I have read elsewhere on this same forum where someone had a similar problem. He was initially granted 10 year family route as an overstayer, then he successfully switched to the 5 year during his first 2.5 year renewal and during his second 2.5 year renewal on the 5 year route he was put back on the 10 year route, there were no mistakes in his application. He contacted the caseworker and the caseworker acknowledged it was a mistake so another letter was sent putting the applicant back on the 5 year route. Maybe I should have contacted the caseworker too as CR001 said

If he didn’t make an early ILR application, then it was the caseworker’s error.