Entry Clearance or ILR (Kayalami/John pls advise)

[zabds]

Hi,

Below is the timeline of events in my daughter's immigration history.

Aug 1997: She was granted student visa to study for a first degree
April 2001: I got a 5 years work permit and my dependents (wife and daughter) granted Leave to Remain for 5 years.
Nov 2004: Daughter's employer successfully applied for her own Work Permit.
Dec 2004: Daughter got married. Bad timing and we've been kicking ourselves about this ever since
Jan 2005: Daughter's FLR(IED) application refused due to in-country switching rules. However she was told her LTR until April 2005 still valid provided her conditions of stay still apply.
May 2005: Home Office replies to enquiry via local MP: She is no longer eligible for ILR as my dependent and should consider becoming a dependent of her husband who is work permit holder.

My son-in-law has LTR as a work permit holder until 2010 and is eligible for ILR this September under Long Residence concession and in July 2006 under 4 year work permit.

Questions:

1. Even though she was refused FLR(IED) and the date on the ink stamp in her passport underlined, the refusal letter itself stated her LTR was still valid until April 2005 provided her conditions of stay still applies.
Her condition of stay is a standard one - along the lines of 'maintains himself and dependants without access to public funds'.
Is her stay in the UK still valid although she got married in December?

2. We have paid for a lot of advices (some very poor!) lately. Wished we did all this before
One of the advices we've obtained is that she goes back (we are all visa nationals by the way) to our home country and apply for Entry Clearance there as a spouse.

Another route we have been advised is her husband applies for ILR on Long Residence concession in September 2005 and then she applies to become his dependent. She cannot switch to become his dependent now as he himself has Limited LTR.

Which route is preferable?

3. Can I apply for my ILR even though my daughter's status is in suspense at the moment. If I'm granted ILR does that affect her stay in any way?

4. If she goes down the ILR route, does she have to tick yes to 'Have you been refused a visa?' ?

5. Can we present the reply we got from the Home Office via the MP which encouraged her to become a dependent of her spouse as a route to obtain ILR? Will that not fail her in the 'intention to settle' test?


Thanks in advance,
Abd

[Kayalami]

Jan 2005: Daughter's FLR(IED) application refused due to in-country switching rules.

Which rule are you refering to? Had she graduated by the day the FLR (IED) was submitted? Was her student visa still valid on the same day?

[zabds]

Kay,

At the time she was refused FLR(IED), she had LTR as a dependent of a work permit holder (i.e me) and still has it until April 2006 subject to her conditions according to the refusal letter.

Thx

[Kayalami]

zabds,

1. Note daughter's student visa superceded by dependent LTR on basis of your WP hence negating ability to in-country switch which was a major concession anyway for visa nationals.

2. In circumstances described she should return to your home country and apply for EC as the dependent spouse of a WP holder i.e. her husband. In country switch not possible anyway since she has no LTR - no compassionate/ compelling circumstances seem obvious to me. IMHO appeals a waste of resources (time and money). EC application requires substantive paperwork regarding her spouse: certified - WP LTR stamp/biodata page, original - WP, 12 month bank statements, marriage cert, employer letter with contractual details i.e. position/salary, proof of accomodation (mortgage deeds/tenancy agreement), utility bills.

3. You should proceed with your ILR application with immediate effect as you have acquired the relevant eligibility period. Such means you can naturalise earlier. Your daughter should not be (and does not qualify) to be included in your ILR application.

4. She can be included in her spouse's ILR application (10yr rule) which I understand is in a few months time. She will not be included here if she has no WP dependent LTR - this can only be obtained by way of overseas EC.

Good luck

[zabds]

Kay,

Thanks very much for the input.
We've made up our minds. She will go back to apply for EC and I'm going to submit my ILR application.

We will ensure she has the documentary support as you mentioned.

1. Does it matter that I get the ILR before she goes back to apply for EC?
2. Does she tick Yes to 'Have you been refused a visa' as her FLR(IED) application was turned down?
3. Does she need to be worried about the 'intention to settle' test?

TIA,
Abd

[Kayalami]

zabds,

1. No

2. Yes: Sec 4 - Previous Applications and Travel, Q 4.3, VAF 1 - Non Settlement Application. She should have the relevant correspondence from HO in regards to FLR(IED) refusal showing she still had LTR post refusal and was not required to leave. It will save time rather then having the ECO contact Croydon. Presumably the WP has expired? Is she currently in employment. Such should be included in her EC application as further evidence of resources such that there is no recourse to public funds.

3. No. ECO may ask about the timeline to refusal. On the other hand she may not even see the ECO. I see no cause for concern if she carries all required documentation to include such pertaining to a subsistence of their relationship i.e. all relevant paperwork in joint names as afore mentioned statements, bills, mortgage deeds, insurance policies etc.

May she have a long and happy marriage.

Kind regards - K.

[zabds]

Hi K,

Thanks very much for your wishes!
My daughter would be happy to read this thread! In fact I must point out, your advice is in line with the advice I got from the best solicitors we've seen and one of them was free advice as well.

For the record, I would advise everyone with cases not straightforward as ours to seek advice from several sources. If we had followed some of the advices we got, surely my daughter would have found herself with a second refusal today.

Now I can tackle my own ILR application. It should be straightforward for me personally. I meet the conditions in terms of the absences from the UK and I will get a letter from my employer stating that I am still needed in my post.

However I have two more questions:
1. My wife has an absence of just over 3 months in the 1st year of our stay here. However I notice in the SET(O) form, there are no questions about absences of my dependents.
I guess that means they are not very much concerned about her absences but more about the absences of the main applicant (i.e me).
Am I right? If not, how can I go about this?

2. My widowed mother aged 80 who was also granted LTR with me has an absence of almost 2 years. On her first visit back to our home country, she was unable to fly back due to ill-health and frailty. I arranged for her care there until she was able to make it back to the UK. She has now completed almost 2 years under my care without leaving the UK.

As a dependent, I would have thought that her absence should not matter. However as I cannot include her in my SET(O) form as I'm doing for my wife, I'll have to declare her absence in her own separate SET(O) form. Do you think this will affect her eligibility? If so, how to go about it?

Best Regards,
Abd

[zabds]

Dear Moderators,

Can I add 2 more questions to the above 2.

3. How do we certify the photocopies of the pages of a passport?

4. I was talking to somebody over the weekend and he managed to get me worried again about the current status of my daughter.

So I'll paste the question from my first post again:

Even though she was refused FLR(IED) and the date on the ink stamp in her passport underlined, the refusal letter itself stated her LTR was still valid until April 2006 provided her conditions of stay still applies.

Her condition of stay is a standard one - along the lines of 'maintains himself and dependants without access to public funds'.

Is her stay in the UK still valid although she got married in December?


Kind Regards,
Abd

[jjustyy]

For point 3 you can get your passport copy certified by a notary. You can find one in your local area here:

http://www.thenotariessociety.org.uk/find_a_notary.asp

[Kayalami]

zabds,

1. Your absences (not spouse/ unmarried children under 18) on respective SET(O) must be declared if over the 3 month timeline with appropriate explanation and proof submitted. Same applies for your mother's SET(O) form - these should be submitted as a joint application although 2 fees will be required. Regretably this is not a straightforward application so will not be decided on the day.

2. Alternatively apply for ILR excluding your mum. After you get ILR (can be decided on the day as straightforward then) apply for your mum's ILR which will be decided under the immigration rules using form SET(F).

3. Your daughter's LTR to date is moot since she is going abroad to apply for EC in a category leadig to settlement. I see no concerns pursuant to there being no extant criminal records or adverse immigration history vis a vis fraud and only then if charged accordingly. Best get a move on with this EC. Her overstay is not doing any favours to residence requirments of a future naturalisation application.

Good luck

[zabds]

Thanks very much again for your input, K!

As you said since she is leaving the country for EC, we should focus on getting that right. However due to work obligations, she cannot leave immediately; she has booked her ticket to leave in a month's time!

However, I feel disappointed that we have been conned by one of the solicitors we paid to get advice. He argued that her stay is still valid based on her passport stamp condition "maintains herself and her dependents".

He said that as long as she does not do anything to breach that condition (e.g. she does not claim public funds), her current stay will be valid. He also argued that being granted LTR does not prevent her from getting married.

He admitted there has been a change in circumstances but one which does not affect her current stay but does affect her options when making further applications i.e. she can no longer apply as a dependent of me; hence the need for EC as a spouse!

Also, athough the reply from the Home Office to the MP enquiry acknowledged that her circumstances have changed following her marriage, it did not say anything further wrt her LTR being invalid. Or that she must arrange to leave the country. But instead it advised on the alternative routes for her to get ILR.

By the way, does the MP enquiry count as informing the Home Office to a change in her circumstances? Just in case the ECO asks her why she did not take any steps towards informing the Home Office about her change in
circumstances.

I admit getting the answers to these questions might not benefit my daughter's case in anyway (specially if her LTR is invalid) as she got married in December and we are now in June but I hope the answers will help somebody else!

Would you guys have any pointers (links or something) which would conclusively help determine the validity of a LTR following change in circumstances?


Brgds,
Abd

[Kayalami]

1. Her LTR to April 2005 was valid despite the earlier refusal to its expiry - subset of the Nationality, Immigration & Asylum Act (2002).

2. However said LTR is no longer valid - we are in June 2005.

3. Said LTR even during its validity was not eligible for in country switch so the matter of its validity is moot.

4. MP enquiries noted on file but not deemed to be a formal notification by you in change of circumstances.

[zabds]

K,

Sorry for the confusion, her LTR is upto April 2006 as I rectified in the later post and that is what is in the refusal letter as well.

How does that change things?
Does your reply below still stand despite the marriage?

1. Her LTR to April 2005 was valid despite the earlier refusal to its expiry - subset of the Nationality, Immigration & Asylum Act (2002).

Brgds,
Abd

[Kayalami]

zabds,

1. I note corrected LTR date but what's the hang up on this - no offence meant. Its irrelevant for switching purposes.

2.

Para 82 Right of appeal: general

(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.

(2) In this Part "immigration decision" means-

snip
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain
snip

Your daughter had LTR to 2006 so had no right of appeal. Refusal based on application not in accordance with the rules. Technically your daughter ceased to be your dependent on the date she got married with a subsequent impact on her LTR. However HO not hang up on this (as per their correspondence indicating a concessionary approval of ongoing LTR as valid) pending her current LTR being valid post their refusal decision which it is.

Out of interest why did she apply for a WP anyway given her current LTR allows her employment rights (this is actually a historic concession outside the rules for appropriate dependent categories).

[zabds]

K,

1. No offence taken at all; in fact your views are much appreciated K.
Whatever you say is a plus .

It's just that the circumstances that led to the refusal have made us a bit wary.

Also the inconsistent advices from so called professionals; the schemes to get us to lie or to let them take us down routes doomed to failure.

Basically we woke up to the 'emotionless' and 'moneymaking' aspect of the system. Which makes us a little bit worried as to what the next bad surprise could be!


2. You are right; she was not given any right of appeal

3. This is a long story
To cut it short; it was a combination of acting out of little knowledge on our part, naivety and the machine-like nature of the system.

My daughter's employer was keen for her status to be independent of mine just in case I lost my job. We agreed to this without finding out the implications.

And the timing of the marriage (I'm perfectly happy about the marriage itself though!); I dare not even talk about it!

While I'm there, let me get this off my chest:

I find it a complete waste that WP(UK) department of the Home Office issues work permit to people who cannot switch their status in-country using these work permit.

It's a
- waste of time/money for the employer who makes the application
- waste of time/money for the emloyee who is likely to get an unnecessary negative immigration record (obviously why would the HO care about this).
- waste of time for WP(UK) themselves as the WP will more likely go to waste and in many cases people will re apply for a WP

The last point maybe explains to why they might want to keep the system as is; more applications means more money!

Anyways, it would have been so much simpler if WP(UK) turned down a WP application if the applicant is not allowed to switch to it or if they were a bit more informative in the letter that accompanies the WP document.

Instead my daughter got a standard letter urging her to apply for FLR(IED) asap ...


Brgds,
Abd