Confused between FLR or PBS

Also try and get the letter from the Employer, to ascertain what the basis of the proposed curtailment was, and then try to address it.

Thank you so much for your help.
I will try all possible emails.

Thanks again.

-Anuja

Obie wrote:I will like to see the legal basis for their contention that the visa should be curtailed.

Indeed.

It's absurd for a caseworker to assert that husband's previous leave was "curtailed" after being granted ILR.

Hi guys ,
I am attaching screenshot of the letter. Please go through it.
Thank you.

- Anuja

Can you attach the bit above, where the caseworker claimed that your husband's Tier 2 leave was curtailed because he was granted ILR (Indefinite Leave to Remain)?

By definition,

Immigration Rules: Interpretation wrote:“curtailment” in relation to the curtailment of a person’s leave to enter or remain in the UK, means curtailing their leave such that they will have a shorter period of, or no, leave remaining.

I believe a person's leave is curtailed iff that person's leave was subject to curtailment/cancellation under 323-323C/9.23.1-9.32.1.

If they granted your husband ILR, then his Tier 2 leave was not curtailed.  Being granted ILR is completely the opposite of leave curtailed! Claiming that a person's previous leave was curtailed as a result of being granted ILR is absurd and unsupportable under the Immigration Rules.

1(2) wrote:Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).

33 wrote:(2A) Subject to section 8(5) above, references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.

Immigration Rules: Introduction wrote:"settled in the United Kingdom" means that the person concerned:
(a) is free from any restriction on the period for which he may remain save that a person entitled to an exemption under Section 8 of the Immigration Act 1971 (otherwise than as a member of the home forces) is not to be regarded as settled in the United Kingdom except in so far as Section 8(5A) so provides; and
(b) is either:
(i) ordinarily resident in the United Kingdom without having entered or remained in breach of the immigration laws; or
(ii) despite having entered or remained in breach of the immigration laws, has subsequently entered lawfully or has been granted leave to remain and is ordinarily resident.

323 wrote:(vi) if he was granted his current period of leave as the dependent of a person (“P”) and P’s leave to enter or remain is being, or has been, curtailed; or

P's leave was never curtailed. P being granted further or indefinite leave that increases P's existing period of leave directly contradicts with the definition and process of curtailment. So, to say that 323(vi) is applicable is irrational.

Therefore, 323(vi) is not applicable to you.

Moreover, the caseworker's action is also inconsistent with 319C and 319E.

Cancellation: appeal and administrative review rights

An individual does not have a right of appeal or administrative review in respect of a cancellation decision made on or after 6 April 2015. However, this does not apply where an individual comes under the EU Settlement Scheme or is an S2 Healthcare Visitor as these cohorts do have a right of appeal. For these cohorts, and additionally Service Providers from Switzerland, there is a right to seek an administrative review where cancellation decisions are made at the border only. For more information, see section: Cancellation and curtailment grounds: appendices and annexes.

Hi I have attached the screenshot of the first part of letter.
There they have said I haven't applied for visa in line with my husband.
Please go through it. Thank you so much for your help.

-Anuja

It's nonsense.

323 wrote:(ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted; or

Your leave as a PBS dependant under 319C is already in line with your partner who has indefinite leave to remain as a Relevant Points Based System Migrant.

Else, you wouldn't be able to extend after your partner has ILR as a relevant PBS Migrant under 319C, nor subsequently apply for SET(O) under 319E.

319C(b)(iii) and 319C(h) clearly permits you to extend after your partner has ILR as a relevant PBS Migrant. Although possible, there's no requirement in 319C for the PBS partner to extend at the same time when the PBS Migrant applies for ILR as Relevant PBS Migrant.

I think

vinny wrote:Note that if 319D(b) and 319A are still satisfied, then 323(ii) is also not applicable.

Do confirm that 319D(b) is still satisfied.

-----

323 wrote:(vi) if he was granted his current period of leave as the dependent of a person (“P”) and P’s leave to enter or remain is being, or has been, curtailed; or

As explained, your partner's leave (P's leave) was not curtailed. Therefore, 323(vi) is also not applicable.

Proof:

323(vi) is of the form:

"If A and B", where
A = "he was granted his current period of leave as the dependent of a person (“P”)"
B = "P’s leave to enter or remain is being, or has been, curtailed"

Since B is false, then "A and B" is false.

Therefore, "if A and B" is not applicable.
Therefore, 323(vi) is not applicable.

This decision has not been made in line with the Immigration Rules nor Tier 2 policy guidance nor Curtailment instructions.

Hello dear,
Since our last conversation we have emailed on almoat every email address we have found of home office.
we have even posted letters to home office, E Clark the person who sent us the letter and Sarah Rapson.
we haven't got a single reply or acknowledgement from anywhere! What do you suggest we should do?

We want to make a complaint to home office regarding misguidance. As before travelling, me and my husband both called the home office and comfirmed that we do not requireto apply for a different visa and that I can travel ooutside the country without any worries! When we received the curtailment letter from home office we were clearly misguided. we have the date and time we called them.
How can we make an effective complaint against them?

mabhang wrote:We want to make a complaint to home office regarding misguidance. As before travelling, me and my husband both called the home office and comfirmed that we do not requireto apply for a different visa and that I can travel ooutside the country without any worries! When we received the curtailment letter from home office we were clearly misguided. we have the date and time we called them.
How can we make an effective complaint against them?

I think you were correctly informed. It's the curtailment that is in error.

Perhaps Jane Richards or Wayne Fairweather or Edwin Thomas may also be knowledgeable people to contact.

Note that their answers contradicts a colleague's, whom I believe was wrong.

In the case of a PBS Migrant holding ILR and the PBS dependant holding limited leave, their expiry of leave will never be at same time. The ILR holder's period of leave is indefinite, while the dependant's period of leave is limited.

It's probably clearer if I give hypothetical examples. It's useful to examine this situation near the boundary conditions, where the PBS Migrant is granted ILR.

Suppose a PBS dependant had leave of less than 3 years remaining, say 2 years, 11 months and 29 days. If s/he was forced to prematurely extend under 319C, in the same category, as permitted, then they would grant leave for 3 years only, under 319D. This gives an effective difference of no more than 2 days for the price of a 3 years extension.

Worst still, suppose a PBS dependant had leave for over 3 years remaining. Applying for an extension under 319C, as permitted, would result in an effective curtailment. So, the PBS dependant would be paying for his/her own curtailment.

Suppose a PBS dependant had leave of exactly 3 years remaining, then what is s/he supposed to do?

There may be a problem if the period of the dependant's leave was longer than that of the Main PBS Migrant. But that's impossible when the PBS Migrant has ILR.

Hence, if 319D(b) is still satisfied, then I believe that this curtailment is neither supportable by the rules nor by the guidance.

Better still a Pre action protocol , may wake up all the parties involved to the reality of the situation.

It seems they are presently asleep , calling the OP bluff.

See also JR.

Note that if they don't rescind this unlawful curtailment, then you would have to apply for entry clearance as the spouse of a settled person. Then your qualifying period for SET(M) would be reset.

Then, I think you should also claim for damages and a reinstatement of your rightful leave as a PBS dependant.

A judge once noted:

76 wrote:In my view the same principle applies here. The responsibility in law on the Claimant was to ensure that his conduct was four-square within the rules. The rules were not hidden from him...

In my view, the same principle must also apply to the UKVI's caseworkers.

In addition to Obie's excellent suggestion:

Perhaps you could also ask for a reconsideration. They may not realise that you are outside the UK and fix their mistake.

Also, perhaps make a complaint about how insufficiently trained caseworkers make migrants needlessly suffer. Give your unlawful curtailment as an example. Include the judge's comment, saying that the same principle should also apply to UKVI's caseworkers too. Moreover, the lack of appeal and AR and redress options, apart from JR, may further encourage their poor descision making.

Involve your MP and later, if necessary, the Parliamentary Ombudsman.

This is to give the UKVI every opportunity to correct their mistake, to mitigate your loses and damage claims against them.

Hello all,
We want to thank you all so much for the suggestions and support throughout!
I want to give an update of the situation. I am still in india, and we have been trying to get in touch with the home office (specially the curtailment department) through letters, emails and calls;but its all been useless.
Firstly we haven't yet heard back from home office. They reply within 20 days is what I have heard but its been more than 20 days now!
We also emailed our area MP and my husband visited her office. After they confirmed the receipt of our email they assured us that they would get back to us within 48 hours but its been 5 days now! When my husband visited the office again, they said "we are not solicitors that you keep asking us again and again."
So we are not expecting much from the MP now!

Moreover when we talked to a few solicitors (3) they ALL suggested that we should apply for the visa and that we should have applied earlier to avoid this situation!

We are so damn confused and are thinking about applying for the visa now because we have only till nov 15 (that's when my visa ends).

If the home office thinks this is the right decision, then I want to file complaint against the customer service attendant who told us otherwise or I want to file complaint against case worker who took this wrong decision!

What do you suggest?

Can I apply for FLR from India or have to go back to UK to apply from within?

Is their any other way I can get in touch with the home office?

Please suggest feels really helpless when home office doesn't get back/reply!!!

Thank you all...

Well myself and Vinny have advised what you should do.

These solicitors are not updating themselves and simply good at form filling exercise.

They are talking rubbish.

You should have filed a PAP.

mabhang wrote:Can I apply for FLR from India or have to go back to UK to apply from within?

vinny wrote:See also JR.

Note that if they don't rescind this unlawful curtailment, then you would have to apply for entry clearance as the spouse of a settled person. Then your qualifying period for SET(M) would be reset.

Do also read Jane Richards' and Wayne Fairweather's and Edwin Thomas's responses.

These are applicable here too.

They give logical reasons why your curtailment is unjustifiable.

It's also alarming to see caseworkers mistake a grant of further or indefinite leave to the PBS Migrant as a sign that the PBS Migrant's leave had been curtailed! It's contrary to the basic definition of curtailment.

Caseworkers should be better trained.

Hi Vinny and Obie,
Thank you guys for replies.
We were actually waiting for the matter to be solved automatically by home office but no reply from them yet makes me think about PAP and JR now!

Do you know any good lawyers/solicitors in London who would help us file PAP?

Thanks.

Hi guys,
My husband just received a letter from home office which is the reply to our letter to the curtailment department.
They said that this decision has been made in line with the Immigration Rules. And again stated all the matter that was in the previous letter. Also they have asked us to submit my BRP card else there would be a £1000 penalty! And they have extended the date from 15th Nov to 27th Dec. I have more time! Huhh

So we HAVE to make an application now!

Do you guys think I can make this application from India or have to go back?
Will there be any problem at immigration if I fly?

This all is just so disappointing!!!

it's amazing that these caseworkers cannot think logically. They are making up their own illogical interpretation of the Immigration rules. This curtailment decision is unjustifiable by both the Immigration Rules and their guidance, as confirmed, in writing and in public, by their own more logical staff members. The decision is contrary to 319C and 323.

As you know, the unlawful curtailment effectively invalidate your leave when you are outside the UK. So, it may be moot on how long they extend it for. Expect problems at the airport.

Moreover, as explained, there's only one type of entry clearance that you may apply for.

Do what Obie has suggested.

See also Any good law firm recommendation?

I remember an authority which confirms that she may be entitled to an in country right of appeal against such curtailment , and has to be permitted to enter to exercise it .

mabhang wrote:Also they have asked us to submit my BRP card else there would be a £1000 penalty!

In the end, they should be paying you damages for making a very poor decision, refusing to admit their obvious mistakes and causing so much distress.

Thank you so much Vinny and Obie for your great advices!

I will get in touch with a good law firm and lets see what happens! I don't want to just simply go ahead and do it because the home office says its right!
I have a 4 month old baby who is born British so I think I have an advantage at the airport if they cause any problem!

I will keep you guys updated.

Thank you again!