Refusal to Vary Leave

[nitin3879]

Hi Everyone, Need help

I got married in Jan 2012 in India while i was on Tier 1 General, my wife applied as a partner for tier 1 general and got visa on 30th march 2012 till 17th August 2012. she came to UK on 14th June 2012. We both applied at same time on 16th August 2012 becase our visa expiry was on 17th Aug 2012. I have applied for ILR and she has applied for FLR(M).

I have received my ILR Visa on 14th Feb 2013. Today we received Refusal letter and appeal form for my Wife

It states
Refusal to Vary Leave

E-LTRP.2.1
The applicant must not be in the UK ;
a) as a visitor
b) with valid leave granted for a period of 6 months or less , unless that leave is as fiance'(e) or proposed civil partner or was granted pending the out come of family court or divorce proceedings or;
c) on temporary admission or temporary release (unless paragraph EX.1 applies).

You are in the united Kingdom with valid leave that has been granted for a period less than 6 months. you were granted Entry Clearance as the dependent partner of a person with leave as a TIER 1 General Migrant, valid from 30 March 2012 to 17 August 2012. In view of the above the Secretary of state is not satisfied that you can meet the requirements of E-LTR 2.1, as stated above for leave under the 5 year route to settlement and your applicaion is refused under D-LTRP 1.3 with reference to R-LTRP 1.1 (c).
I have given right to appeal.
can anybody suggest please , as far as i know when we applied for her visa only option was FLR(m) and she was here as tier 1 partner.

nitin

[vinny]

That may be an incorrect refusal. As she was initially granted a PBS dependant visa prior to 9 July 2012, then her subsequent FLR(M) application should have been considered under the transitional provisions, where 284(i)(b) is still applicable?

Moreover, (if I'm wrong above) the rules, since her FLR(M) application, have been amended (5 Sept 2012) to allow partners of PBS migrants to continue to extend as such. Therefore, to be fair, before refusing, they should have given her the opportunity to vary her FLR(M) application to a PBS dependant application.

I think that it is worthwhile appealing.

[nitin3879]

Vinny,
Thanks for quick & positive reply, we were upset since we received that refusal.

We have received refusal letter on 6th april and need to appeal before 12 april.
I have just few days to Appeal.
Do you recommend to appeal with the help of soliciator?

[vinny]

See also Any good law firm recommendation?

If appealing, then it's very important to do so within the time limit.

[nitin3879]

Vinny,

Seriously i am very much confused, spoke to few solicitors and getting different opinions. Definately we will appeal but what ground do i need to appeal as they have mentioned the law which was impliments in April.

what are the other options ? what catagery she can apply if we need to do so in future ? can we apply from UK?

[vinny]

At the time of her FLR(M) application, the option to apply for leave to remain as a PBS dependant was not available. This is analogous to dependants of Points Based System (PBS) Migrant who gains indefinite leave to remain on the basis of Long Residence. In 3.4, it's confirmed that they are subject to the transitional provisions, if they were granted leave to enter or remain as a PBS dependant before 9 July 2012.

If the main relevant Points Based System (PBS) Migrant gains indefinite leave to remain on the basis of Long Residence any PBS dependant partner will not be able to extend their leave or gain settlement as a PBS dependant and will be required to switch into the partner of a settled person category and apply for limited leave.

Applicants who were granted leave to enter or remain as a PBS dependant before 9 July 2012, whose PBS partner gained indefinite leave to remain on the basis of long residence can under transitional provisions at A280 (c) apply for further leave under Part 8 of the Immigration Rules.

Applicants who were granted leave to enter or remain as a PBS dependant after 9 July 2012, whose PBS partner gained indefinite leave to remain on the basis of long residence will be required to apply to extend their leave as a partner under Appendix FM.

Moreover, I cannot see any provisions that excludes her from A280(c).

Therefore, A280(c) is also applicable to your wife.
Therefore, under A277, E-LTRP.2.1 is not applicable, but 284(i)(b) continues to be applicable.

Therefore, the grounds for appeal is that the refusal is not in accordance with the Immigration rules.

Does that make sense?

Her other options, unless your ILR was based on Long residence, is to apply for leave to remain as a PBS dependant, subject to 319C(j). If she applies from outside the UK, then she will have to apply as a spouse of a settled person. However, in both cases, she will be subject to the current rules and her qualifying period for ILR will probably be reset.

[nitin3879]

Vinny,
Thanks you so much for your support.
I will appeal this decision.

[nitin3879]

Vinny,

We have received decision last week, and our appeal is allowed in accordance with immigraion law.

Thank you so much for your advise and support.

[vinny]

Congratulations! Thanks for letting us know the outcome.

[nitin3879]

Hi Vinny,

My wife was refused and granted visa till october 2015 after we won appeal against the decision , now she has spent more than 2 years in UK as my dependent and she was granted and entered uk as tier 1 dependent visa before july 2012.
Can you please advise which form should i fill , SET( M) or SET (O) because we filled FLR (M) form when she has applied for extension to stay as dependent. also can you advise that can she apply for ILR ?

[vinny]

She was a PBS dependant prior to 9th July 2012.
She was granted FLR(M) under 285 prior to 6th April, 2014.
Therefore, she may now apply for SET(M) under 288, making use of 287(a)(i)(d).

Also required:
The Life in the UK Test
an English language test

[nitin3879]

Thank you so much for your advise.
She has already cleared life in the uk and english language tests.

[nitin3879]

My wife is in ILR and now she is in India since March 15 with my daughter who's is British citizen having indian visa till August 16. My enquiry is how long my wife can stay in India on her ILR. It's been 9.5 months already and wants to stay another few months.

[Casa]

ILR is lost after 2 years outside of the UK.