Varying Spouse Visa after Citizenship

[vinny]

It may be clearer if A280B is rewritten with its logical equivalent:

An applicant aged 18 or over may not rely on paragraph A280 where, since their last grant of limited leave to enter or remain under Part 8, they have been granted or refused leave under Appendix FM, Appendix Armed Forces or paragraph 276BE to CE of these rules, or been granted limited leave to enter or remain in a category outside their original route to settlement.

Logical equivalent:

If since their last grant of limited leave to enter or remain under Part 8, they have been granted or refused leave under Appendix FM, Appendix Armed Forces or paragraph 276BE to CE of these rules, or been granted limited leave to enter or remain in a category outside their original route to settlement, then an applicant aged 18 or over may not rely on paragraph A280.

[Obie]

Yes. I am prepared to make an unreserved concession on the A280B point, in regards to its applicability to Part 5 category of cases.

However I am not sure the OP'S wife meets the requirement of 194 (Viii) , which by virtue of 194 (vii), she is required to meet, as a result of 196D.

194 (Vii) ends with and , which show that the requirement of 194(Viii) has to be met aswell.

It does not appear that this person has ever met the requirement of 194 (Viii) .

It seems to me, that it will make a mockery of the whole rules and route to settlement, if a person can qualify under 196D, without ever meeting the requirement of 194 (Viii).

[vinny]

All of the subparagraphs of 194, prior to 194(viii), ends with "and".

(ii) meets the requirements of paragraph 194(ii) - (vii); and

explicitly excludes 194(viii)!

If they had wanted to include 194(viii), then they would have done so.

[Obie]

I would not go as far as saying 196D explicitly excludes 194 (Viii), because it states the requirement of 194 (ii) to (vii) has to be met.

At the end of 194(vii) it states and.

I believe you could argue that 194 (viii) is not explicitly mentioned, but I don't accept that it could be said that 194 (viii) is explicitly excluded.

It will be interesting to see the outcome . I don't believe a court may accept your analysis, it will drive a coach and horses around the immigration rules, and I am doubtful the court may accept it.

It is a good and arguable point.

Will be interesting to get a feedback from OP.

[vinny]

If the 'and' following 194(vii) is to be included in the manner you said, then it would not be necessary to write 194(ii) - (vii). They could have just written 194(ii) on its own and expect all the 'and's following to do the rest.

Instead, they wrote 194(ii)-(vii). So, if they had wanted to include 194(viii) as well, then they would have written 194(ii)-(viii).

[Obie]

Vinny I will be foolish to suggest your point above is invalid.

I must err on the side of caution and take note of what the court has said about how the rules should be interpreted and the fact that they should not be read in as strict a way as a statutory provision and that they are the reflection of the government's policy from time to time.

You may well be correct and I am eager to see the outcome of OP'S case.

[vinny]

I was surprised when reading the rules. I was trying to read them, not in a strict way, but in a logical way. Hope that Mr Spock approved.

Partners under Part 5 appear to have a huge advantage compared with partners in other categories.

Thank you for highlighting potential problems.

Good luck to the OP's wife!

[Alishah]

Hi Vinny,

I am confused here, by Obi`s responce. Please clearifiy if my wife can still apply or there is risk that we may see negative results.

I asked on solicitor over the internet, he wanted to see the limited leave grated letter as well as copy of BRP, which was shared. I was advised my "wife is not eligible for ILR yet as she got via as DL on FLO and not as a wife of a British Citizen".

Will you please answer these two questions and the previous post about the SET(o) which sections to fill.

Regards
Alishah

[vinny]

I think she qualifies under 196D(i)(2), because she is your spouse, where

196D. The requirements to be met by a person seeking indefinite leave to remain in the United Kingdom as the partner of a person who has or has had leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that the applicant:

(i) is the spouse, civil partner, unmarried or same-sex partner of a person who:
(1) has limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) and who is being granted indefinite leave to remain at the same time; or
(2) is the spouse, civil partner, unmarried or same-sex partner of a person who has indefinite leave to remain in the United Kingdom or has become a British citizen, and who had limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) immediately before being granted indefinite leave to remain; and

Unfortunately she was given partner dependant visa as per R-LTRP 1.1 a, b and d, under immigration rules D-LTRP 1.2.

She was last granted leave under D-LTRP as a partner ----

Section D-LTRP: Decision on application for limited leave to remain as a partner

.

(iv) was not last granted:

(1) entry clearance or leave as a visitor, short-term student or short-term student (child),
(2) temporary admission, or
(3) temporary release; and

I think she qualifies under 196D(iv) because she was granted leave under D-LTRP. She was not last granted leave under (1) or (2), or (3), as prohibited in 196D(iv).

Does she meet all the requirements of 196D?

Wait for Obie's further comments.

[Obie]

Well vinny the current position is, you successfully obtained series of material concession from me in regards to A280B.

Our only point of dispute is in regards to 194 (vii) and 194 (viii).

Due to the presence of "And" after 194 (vii) , i took the view that it was not mutually exclusive with 194 (viii).

However you argued that they are, and that if it was the draftman's intention to include 194 (viii) in 194D, it would have explicitly stated so.

There is some force in your argument. I believe it has legal foundation, although i citied guidance from the courts on caution in the intepretation of the rules, as it is not statutory instrument, notwithstanding the fact that it was laid before parliament.

I think the PEO will be puzzled, they might want to send it to their policy section, but i am unable to say that vinny's argument is without substance, notwithstanding the fact that i dont believe it was the draftmans intention for your wife to qualify under these circumstances.

I am not saying they will issue ILR happily to her, but i will go for vinny's advise rather than the solicitors, who unsurprisingly have not undertaken as indept an assessment as vinny. And this goes to me aswell.

Although i am still unable to say i concede the 194 (viii) point.

This is only as a result of what i perceive to be the spirit of the provision, rather than its letter, which vinny was spot on in regards to.

[Alishah]

(iv) was not last granted:

(1) entry clearance or leave as a visitor, short-term student or short-term student (child),
(2) temporary admission, or
(3) temporary release; and


I think she qualifies under 196D(iv) because she was granted leave under D-LTRP. She was not last granted leave under (1) or (2), or (3), as prohibited in 196D(iv).

Does she meet all the requirements of 196D?

Hi Obie, Please ignore my lack of knowledge and correct.
I think 194 refer to: Requirements for leave to enter as the partner of a person with limited leave or remain in the United Kingdom. Hence I will agree with Vinny since last entry clearance or remain was not granted as per 196D (1), (2) and (3).

Here she was given limited leave to remain as a partner and the consideration has been given under paragraph R-LTRP 1.1 a, b and d of Appendix FM includes the exception paragraph EX.1 (a) and (b). Because of her circumstances, she was granted leave within the immigration rules D-LTRP 1.2 of Appendix FM
I agree in the previous examples given in my posts most of the cases are straight forward where partners were on dependant visa. Where is in my wife`s case is very different.
I am not fully satisfied by the e-solicitor`s response, I am more towards Vinny.

I hope we will make it.

Regards
Alishah

[vinny]

Obie, I think that it makes sense when each of the subparagraphs are delimited by ";" or "."

The requirements to be met by a person seeking leave to enter the United Kingdom as the partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that:
(i) the applicant is the spouse, civil partner, unmarried or same-sex partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K); and
(ii) if an unmarried or same-sex partner:
(1) any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down; and
(2) the parties are not involved in a consanguineous relationship with one another; and
(3) the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for 2 years or more; and
(iii) each of the parties intends to live with the other as his or her partner during the applicant’s stay and the relationship is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant does not intend to stay in the United Kingdom beyond any period of leave granted to his partner; and
(vii) the applicant does not fall for refusal under the general grounds for refusal; and
(viii) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

Can be rewritten as:

The requirements to be met by a person seeking leave to enter the United Kingdom as the partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that:
194(i) and
194(ii) and
194(iii) and
194(iv) and
194(v) and
194(vi) and
194(vii) and
194(viii)

Where:

the applicant is the spouse, civil partner, unmarried or same-sex partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K);

if an unmarried or same-sex partner:
(1) any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down; and
(2) the parties are not involved in a consanguineous relationship with one another; and
(3) the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for 2 years or more;

each of the parties intends to live with the other as his or her partner during the applicant’s stay and the relationship is subsisting;

there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively;

the parties will be able to maintain themselves and any dependants adequately without recourse to public funds;

the applicant does not intend to stay in the United Kingdom beyond any period of leave granted to his partner;

the applicant does not fall for refusal under the general grounds for refusal;

the applicant holds a valid United Kingdom entry clearance for entry in this capacity

.

Similarly, in

if an unmarried or same-sex partner:
(1) any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down; and
(2) the parties are not involved in a consanguineous relationship with one another; and
(3) the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for 2 years or more;

We can rewrite as:

if an unmarried or same-sex partner:
194(ii)(1) and
194(ii)(2) and
194(ii)(3)

Where:

any previous marriage or civil partnership (or similar relationship) by either partner has permanently broken down;

the parties are not involved in a consanguineous relationship with one another;

the parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for 2 years or more;

[Obie]

Yes. Or would have been best. Better still, they could have simply left the semi colon.

If you look regulation 8 of the EEA Regulationd for example you have, 8 (2)(b) and 8 (2) (c) seperate by semi colum and an or.

Same with Regulation 5.

The "and" is a huge source of confusion and gives an indication that the various subparagraph are conjunctive.

If we were doing an exercise of semantics, I would have had no difficulty in standing my ground.

[Alishah]

Dear venny and obie,

Only thing that my wife don't quite meet is "entry clearance for entry in this capacity" still debatable, she enter in the UK on student visa, before getting married to non point based work permit holder.

When she married to me we applied for in country transfer based on her pregenancy and other medical conditions at that time. We were asked to apply using FLRO form, as you know application was refused and allowed after appeal in the court. She was given limited leave under R-LTRP and D-LTRP as a partner.

Wasnt she given spouse dependant leave, but this was allowed outside the rules, since this was not possible under the rules. Wouldn't this D-LTRP as partner be considered as same capacity leave?

What should we do now? I called home office 03001232241 there were two different opinion given by two different people. One said she is eligible other one said not eligible? Really confusing.

I will wait for your analysis or explanation, if any support our point of view.

Cheers
Alishah

[vinny]

If 194(viii) is expected to be true,
then it's expected that the applicant holds a valid United Kingdom entry clearance for entry in this capacity (present tense),
then it's impossible for the applicant to be last granted leave in one of the prohibited category as specified in 196D(iv),
then 196D(iv) is redundant.
But as 196D(iv) exists,
then 196D(iv) is not redundant.

Therefore, 194(viii) is not expected to be true. (Proof by contradiction).

[vinny]

5. Home and Finanace: Do we need to fill this section? she is house wife

Don't forget that she should also show that she satisfy:

(iii) each of the parties intends to live with the other as his or her partner during the applicant’s stay and the relationship is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

For 194(iii), perhaps supply similar cohabitation documents as suggested in Form SET(M) > Section 12, Note 8. However, note that there's no minimum period of cohabitation required in this category.

(iii) has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL; and

etc.

[Alishah]

Hi Vinny,

I agree with you explanation, my understanding is all the clauses on 196D applies and some of the clauses (ii) – (vii) also applies, here the clause (viii) is excluded.

Clause (viii) is to be read in continuity of 194 but not required by the clause (ii) of 196D, otherwise this would have been explicitly said rather limiting to (vii).

This will be my argument in PSC Solihull.
Any more comments from any other experts.

Regards
Alishah

[vinny]

See also my proof.

[Alishah]

Hi vinny,

One more thing, just to clear. Do we need IHS reference number for out SET(o) ILR application?

Regards
Alishah

[vinny]

No.

[Alishah]

Update.

Today attend the PSC Solihull, covering letter that I wrote covered the reason I was applying such as 196D and E. All the documents we properly indexed and copies were provided.

We received the positive decision of ILR within 2 hours.

Thanks for all your support and guidance special tanks to Vinny.

Once again thanks, if any questions feel free to ask.

Cheers
Alishah

[vinny]

Great news, congratulations!

[Alishah]

Dear Vinny,

you were great help during this process and all the support you have offered will be remembered.

Once again thanks and best regards.

Alishah

[Alishah]

Hi all,

Just came back to forum after some time to update, I applied immediate after ILR for my wife's citizenship and she got the decision in four month. Now she is British citizen.

Regards
Alishah

[rkay]

I would have never known that Citizenship can be applied straightaway after an ILR without having to wait 12 months if it's not this forum! Well done!!