"With a view to settlement"?

[Kitty]

Needing help for the family of a refugee with ILR.

The husband/father got ILR in 2005. His wife and 4 children came to the UK in 2006 - all on 2 year visas to join him/accompany her so I presume a normal spouse/dependents visa.

Their visas were for August 06-August 08 but they only came to the UK in September 06.

One of the children has turned 18 during this year. Another child was born in the UK this year and is a British citizen.

My initial thoughts are to go for FLR for the wife and 3 dependent chidren on FLR(M) and apply for settlement for the 18 year old on the basis of Rule 298:

(i)(d) he seeks to remain in the UK and one parent is present and settled there and there are "serious and compelling" family reasons for him to stay and

(ii)(b) he was given leave to enter under Rule 302 ( as the child of a parent given limited leave to enter with a view to settlement) and

(iii) he is a college student not leading an independent life.

There is a query over public funds at this stage as the wife cannot work for health reasons and the father (who has ILR) has to stay at home and look after the kids, but I hope to be able to resolve this.

Questions:

1. Is it going to spoil the 18 year old's application that his mother does not yet qualify for the settlement that was envisaged when she entered the country?

2. My reasons for not applying for settlement for the other children yet is because of the cost - if they can go down as depednets that will save the family money, unless there is another way for the applications to be made jointly.

3. The family is from Afghanistan - will this help with the "serious and compelling" reasons?

4. The 18 year old son has a part time job (although on a full time college course). Will this affect his application?
5. What is the correct form for the son? (SET(O)?)

Complicated becasue of the lack of 2 years' residence under the visa - is there any way round that?

[jei2]

Kitty

This sounds very complicated.

Why don't you just go for SET(M) for the wife, inlcuding the dependants and SET(F) for the 18 year old? The 18 year old's leave will continue in line with his mother's anyway.

It's expensive, yes, but cheaper than the cost of them becoming overstayers. This really should be their financial priority if the visas expire next month. They (mum and 18 year old) should also have been preparing for the Life in the UK test.

The Home Office will probably return the application as being incorrect if you try for FLR(M).

Or am I missing something else in the story?

[jei2]

Kitty,

I forgot to add - there was a review on this issue of incomplete leave due to ambiguous wording on spousal visa stamps issued by ECOs. The Home Office became obliged to grant ILR anyway.

Of course I can't now remember the full details. Typical.

Researching....

[Kitty]

THanks jei2 - you're right, it is a bit complicated!

I called the Home Office and they also mentioned the discretion to allow ILR in this way (where there is incomplete residence) so it may be best to go for that on SET(M) and SET(F) as you suggest. If there is something concrete I can use to back it up then that's a bonus - also researching...

For some reason I had blanked SET(F) from my mind, and the lady I spoke to at the HOme Office also mentioned SET(O) as well for some reason.

THat's why this board is so good - it's like thinking alound and talking things through

[John]

Kitty, can you say if either or both the wife and the 18yo son have passed the Life in the UK Citizenship Test? Or if not, are likely to pass before the application needs to be made?

Their visas were for August 06-August 08 but they only came to the UK in September 06.

Can you give exact dates please. When do the current visas expire, and exactly when did they first enter the UK using those visas?

We need to work out the earliest date and the latest date when the applications can be submitted.

[Kitty]

VIsa dates are:

Valid from: 3 August 2006

Valid until: 3 August 2008

and they entered on 6 September 2006

OOps, edited to add both wife and 18yo have taken relevant ESOL tests but results are not expected until August (although both expect to pass) - an added difficulty.

[John]

both wife and 18yo have taken relevant ESOL tests but results are not expected until August (although both expect to pass) - an added difficulty.

You need to clarify this. They need to enclose, when they apply, either a pass certificate from the Life in the UK Citizenship test, or alternatively a completion certificate from a combined ESOL/Citizenship course. That is, merely doing an ESOL course is insufficient for their purpose. So did the course have any Citizenship content?

What standard of English are they at at the moment? Or rather, if they both pass the ESOL test you mention, what will their ESOL grade be?

[Kitty]

Their ESOL - to be honest not sure but obviously if it's not one with the life in the UK element they will only be going for FLR anyway.

Provided it's the right course though, and their results are due after the last date for submission of their applications - will the hOme Office reject the applications outright without the results or can they be submitted later?

[John]

It really would be good to know what their standard is now. That is, would it be possible, even at this late stage, to study for and pass the Test? Particularly the 18yo son, it would be good to get ILR out of the way. Especially if it is unclear whether he might not be dependent in 2 years time.

Anyway, dates! :-

Valid until: 3 August 2008

and they entered on 6 September 2006

As first glance there is a problem. That is, they entered more than 28 days after the visa start date. Indeed I calculate they entered 34 days afterwards ... 6 excess days. But there is a way round this, but they need to get the timing right, otherwise there could be problems.

They need to apply by post, and not in person at a PEO. Also they need to pay by cheque .... not by card! And they need to post the applications .... they can both go in one envelope ... either on Friday 1st August, or on Saturday 2nd August ... and of course using Special Delivery. They need to retain the receipt stamped by the Post Office.

I shall explain further. If they post on one of those days the envelope will get to Durham on Monday 4th August. That is fine given that for postal visa applications in the UK it is the date of posting that counts as the date of application, and yes they do keep the envelopes. So the application will be deemed to be made prior to the visa expiry date, and thus they will have so-called Section 3C protection. That is, their old visas are "treated as continuing" even though the stated expiry date has passed ... but I emphasise the Section 3C is only in play if an application is made prior to the visa expiry date. The Section 3C protection lasts while an application is considered, and if it should fail, until the time for appealing against the rejection has passed.

So post the applications on 01.08.08 or 02.08.08 and they will not suddenly become overstayers.

OK it arrives in Durham on Monday 04.08.08. All they do in Durham is ensure that payment has been made, before passing the papers on to a "real office" for processing. Paying by cheque, rather than card, will slow down that process, while the cheque clears in the banking system. It is probable that the papers will not get to the "real office" until Monday 11.08.08, and that date is within 28 days of the 2nd anniversary of the date of entry into the UK.

[Kitty]

John, that is a quite brilliant summary, which I shall print out and stick to my wall.

Thanks so much.

I will now get down to the ESOL / LIfe in the UK test business.