Got ILR - Should Wife go for FLR (M) or SET (M)

[vinny]

It should be applicable as well because she switched prior to 6 April 2014. The switch should have been correctly under Part 8. So now, 288 should be applicable.

Prior to 6th April, 2014, long residence dependants were treated in the same manner as PBS dependants switching under Part 8.

[vinny]

Section 3 applied as 284(i)(c) did not exist prior to 6th April 2014 to prevent the switch to FLR(M) under Part 8.

[srk2012]

Which sub section under section 3?

[vinny]

3.1

[vinny]

A280(c) also applied at the time, prior to 6th April 2014, when she switched FLR(M).

[srk2012]

What about 3.1.7?

[vinny]

HMHO, that shouldn't apply. It was their mistake to issue leave under Appendix FM, when they should have correctly issued leave under Part 8. It's like compounding their error. Applicants shouldn't have to suffer because of caseworkers' initial errors in the first place.

[vinny]

You are giving them an opportunity to correct their initial error.

[srk2012]

Bad news. They didn't buy the argument and rejected ILR.
She has been asked to make a fresh application to extend her stay using FLR M. Otherwise they would only extend her stay based on humanitarian grounds for ILR ( if that's the case, then she can get ILR only after 10 years)

Need to decide on the next course of action. Will go home and post the case in detail.

Thanks for your prompt responses Vinny. Appreciate that.
It's a shame we couldn't crack it. But let's see what we need to do next.

[vinny]

On what basis did they reject?

When making a fresh application, ask them to consider correcting their initial mistake. Perhaps a more reasonable well trained caseworker may take a more just view.

[srk2012]

They said that she has to complete 5 years after getting her visa extended by FLR M in May 2013. Her clock got reset it seems. They said that she should have extended her stay as a PBS dependent eventhough I was on an ILR...

[vinny]

She was your PBS dependant under Part 8 prior to 9th July 2012. She had applied to switch to FLR(M) prior to 6th April, 2014. If they had correctly granted her FLR(M) under A280(c) & 285, as permitted, under the transitional provisions at the time, then her qualifying period for SET(M), under A280(c) & 288, would not have been reset. Instead, a caseworker mistakenly choose to disregard the applicable transitional provisions and grant her FLR(M) under Appendix FM, which effectively reset her qualifying period for SET(M) under Appendix FM.

The instructions at 4.5 explained the conditions for partners of ILR holders who had been granted ILR via Long residence. Their only option was to switch to FLR(M), unless they qualified for ILR under Long residence too. However, these conditions also apply equally well to partners of ILR holders who were granted ILR as a relevant PBS migrant.

[srk2012]

My wife's current visa expires on Nov 8th.
I'm thinking of applying through FLR (M) again to extend her stay and then appeal / complain about early mistakes by ukba.

Is that the right thing to do? What form should I use??

[vinny]

It's a pity that the caseworker yesterday could not acknowledge that the initial FLR(M) was mistakenly granted under Appendix FM, contrary to the transitional provisions in place.

See also complaints and reconsideration requests.

[srk2012]

Thanks.

Should I now extend her stay through FLR (M)?
Which version of form should I use?
I m getting child benefit in my own account, will this affect her FLR M?
Both of us are full time employed and earn more than 30k each. Is this ok for application?
I have been continuously employed and shifted to a new job before 3 months. Will this be a problem?
Wife has been employed in same company for more than 20 months.

[vinny]

To prevent her from being an overstayer and lose her rights to work, she should apply in-time and use the latest version of the form.

An ILR holder claiming child benefit should be okay.

Applications under Appendix FM must satisfy Appendix FM-SE.

Do also ask for a reconsideration with regards to yesterday's refusal of her SET(M) application.

[srk2012]

Vinny,

Can I immediately ask for reconsideration via email? Or should I write a detailed letter and ask them to reconsider the SET(M) rejection first and then based on its outcome ask for 'FLR (M) on the same day?

We have been given an appointment in Sheffield PEO on 2nd of November at 8 am for FLR

Regards,

[vinny]

I think she should request a reconsideration as soon as possible, before her appointment.

When your request will be rejected
Your reconsideration request will be rejected if you:

make a new application before or after you send the request

[vinny]

The important points to note are that A280(c) (and hence, 2.3, 3.4 and 4.5) was also applicable to her initial FLR(M) application, as she has limited leave to enter or remain under Part 8 before 9 July 2012. If it wasn't, then PBS dependants of ILR holders via Long Residence couldn't benefit too.

Prior to 6th April, 2014, she may switch to FLR(M) under A280(c) and 285.

Note that

(c) With regard to the other changes, if an applicant has made an application for entry clearance or leave before 6 April 2014, the application will be decided in accordance with the Rules in force on 5 April 2014.

Therefore, the initial caseworker should not have disregarded A280(c) and 285, because of A277.

A277 From 9 July 2012 Appendix FM will apply to all applications to which Part 8 of these rules applied on or before 8 July 2012 except where the provisions of Part 8 are preserved and continue to apply, as set out in paragraph A280.

If the initial caseworker had correctly granted her FLR(M) leave in accordance with A280(c) and 285, then SET(M) under A280(c) and 288 would be applicable now.

[srk2012]

Thanks Vinny, I'm preparing a complaint letter. Not sure if I'll get a response before 2nd but worth a try.

Two questions.

I'm thinking of asking them to reconsider the section under which she got her FLR(M) extended rather than the ILR rejection. What do you think?

When rejecting the ILR, the senior case worker at sheffield told me that the reason why I could have been granted FLR(M) under new rules was that I used the FLR (M) form for extension rather than the 'PBS Dependent extension' form. When I asked how my wife could apply for extension as a PBS Migrant when I myself was not a PBS Visa holder, the case worker said that was not a problem. She kept on insisting that I used FLR M wrongly. What do you think?

Regards,
SRK

[vinny]

The grant of FLR(M) incorrectly under Appendix FM and the subsequent refusal of ILR are linked.

At the time that your wife made the FLR(M) switch, A280(c) was applicable to her, as she has limited leave to enter or remain under Part 8 before 9 July 2012. The caseworker should have granted leave under A280(c) and 285, in accordance with A277. It was only from 6th April 2014 onwards when 285 became impossible, because 284(i)(c) fails.

[srk2012]

I'm drafting a complaint letter. But not much hope as the complaints procedure usually takes ages. Highly unlikely that it would be responded within a week before we go again to renew visa

[vinny]

Then, perhaps at the appointment, try to persuade a different more senior caseworker to the logical point of view.

They may try to invoke A280B, but that would be unreasonable.

[srk2012]

Hi, Should we now use FLR (M) for extending my wife's visa?

Confused because of the below point

As the partner of a person granted indefinite leave to remain in a work route, if you are currently
in the UK as their dependant.

[vinny]

Interestingly, there appears to be nothing to prevent her from switching back to being a PBS partner under 319C. Then it seems that she may even qualify for SET(O) in Dec 2016 under 319E.

However, as they have granted her FLR(M) (incorrectly) under Appendix FM, then she may also extend with FLR(M).