FLR(O) or FLR(FP)!?

[morleyaxis]

Hi I have an unusual situation I would be grateful if anyone could shed light upon. I have a friend who applied to join his British wife in the UK via the normal spouse visa rules. This was refused by the ECO on 3rd April 2012 but at the appeal was allowed on Article 8 grounds (family life). This decision was made on 16th January 2013. As a result he was granted a visa from 03/04/12 to 03/01/15 with an entry stating "leave to enter outside the rules". He then entered the UK on 3rd March 2013. He is now applying for further leave to remain and has just missed his visa expiry but is trying to make his application before 28 days after his visa expiry.

Can someone advise which application form he should use? The spouse visa application and ECO decision were made before the new rules, but the court decision was made afterwards. When issued the visa was backdated to before the new rules ie 03/04/12 (when the visa was originally refused). For some reason the visa was granted for 33 months. I am not sure why it was this length of time. The appeal was allowed outside the rules under article 8 as he did not have his English language certificate and the judge directed that a visa be issued. Do "transitional rules" apply meaning an FLR(O) or is it an FLR(FP) on the 10 year route? The couple have a British child also and the wife a British child from a former relationship. Many thanks if anyone can help.

[Obie]

I am of the view that it should be the old discretionary leave policy, which was in place on the day he applied.

Therefore he should qualify under the old 6 years rules rather than the 10 years rules.

It should in those circumstances be the FLR(O) form that should be used.

[morleyaxis]

Hi Obie,

Thanks for your reply. I found this on the Home Office website, which seems to be applicable. These are the Transitional Provisions contained in Chapter 8 of the Immigration Directorate Instruction on Family Migration (Family Members under Part 8 and Appendix FM of the Immigration Rules November 2014), which states at chapter 6

“6. Appeals on or after 9 July 2012 (for in-country and out-of-country applications)
6.2. Application submitted before 9 July 2012: appeal allowed on or after 9 July 2012 on Article 8 grounds
6.2.1. Where a person submitted an application before 9 July 2012 which was refused and their appeal against the refusal was allowed on Article 8 family life grounds on or after 9 July 2012, and the Secretary of State is not contesting the determination, leave to remain of 30 months’ duration should be granted in accordance with paragraph D-LTRP.1.2. or D-LTRPT.1.2. of Appendix FM as appropriate."

So that perhaps explains why he was given 30 (+3 months as he was outside the UK), which is a grant based on the new provisions.
If the appeal was allowed under the immigration rules it would be different, it seems...

"6.1. Application submitted before 9 July 2012: allowed appeal under the Immigration Rules
6.1.1. Where a person submitted an application before 9 July 2012, it was considered and refused under Part 8 and a subsequent appeal against the refusal is allowed under those Rules, and the Secretary of State is not contesting the determination, leave
should be granted under the provisions of Part 8 in force at the date of application.
6.1.2. Further applications for leave or indefinite leave to remain from such a person will be considered under the transitional provisions in paragraph A280(c) of Part 8. "

So on this basis it looks like he is on the 10 year route rather than the 6 year, as the appeal was allowed on Article 8 grounds rather than under the immigration rules (as he had no English certificate). Is that correct, do you think?

If so, I am still not sure if it is FLRO) or FLR(FP) form. I would guess FLR(O) as you have said.