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Discretionary Leave to ILR

Only for queries regarding Indefinite Leave to Remain (ILR). Please use the EU Settlement Scheme forum for queries about settled status under Appendix EU

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

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Mercyknight
Junior Member
Posts: 76
Joined: Wed Mar 03, 2010 8:32 pm

Discretionary Leave to ILR

Post by Mercyknight » Wed Sep 02, 2015 11:26 pm

Hello,

My wife is South African. She has been in the UK for 10 years and was classed as an overstayer in July 2008 due to the Home Office losing her Passport and other documentation.

The case went to tribunal where the judge ruled in favour of my wife and agreed to discretionary leave. My wife has been on discretionary leave since 2008. We were married in 2009. I am a UK citizen.

In 2012 we were advised to reapply for discretionary leave and applied for it under the humanitarian route as that was the reason my wife was granted a visa under humanitarian reasons. However we were advised to apply for the wrong visa and her leave lapsed by a few weeks whilst we reapplied under the correct visa application. Her discretionary leave was granted again.

Next month that leave expires, and as far as we are aware we can apply for ILR under SET (O) please can someone confirm this is correct?

Also she does not need to do the Life in Britain test as she is applying from over 6 years on discretionary leave to remain is this correct?

Finally do you think they'll hold that lapse in 2012 against her even though it was the Home Offices fault?

And finally on the Application form Set (O) for ILR what box does she tick for the tier of visa she's applying for? Does she click other at the bottom and write a letter explaining the situation?

Any help would be so appreciated!

Obie
Moderator
Posts: 15156
Joined: Tue Apr 21, 2009 12:06 am
Location: UK/Ireland
Ireland

Re: Discretionary Leave to ILR

Post by Obie » Thu Sep 03, 2015 12:13 am

How can you blame Home office for the 2012 situation.

The burden is on the applicant to make thew right application and not the Home office to direct them to do so.

She applied for the wrong visa.

DLR is governed by policy and not the rules . It required continuous leave under DLR for 6 years. If the language of the rules, which overlooks 28 days or under overstay, then she will be fine, otherwise it will have to be a further 3 years extension.
Smooth seas do not make skilful sailors

physicskate
Diamond Member
Posts: 1605
Joined: Tue Oct 30, 2012 10:46 am

Re: Discretionary Leave to ILR

Post by physicskate » Thu Sep 03, 2015 9:11 pm

Did you APPLY in 2012 before her DLR expiry?

Mercyknight
Junior Member
Posts: 76
Joined: Wed Mar 03, 2010 8:32 pm

Re: Discretionary Leave to ILR

Post by Mercyknight » Thu Sep 03, 2015 10:18 pm

physicskate wrote:Did you APPLY in 2012 before her DLR expiry?
No the judge enforced the Home Office to issue to the VISA.

She was issued a visa in 2008 for 3 years, it expired 4th Nov 2011 but we applied under the wrong application form and so the new form wasn't sent until the beginning of December (over 28 days) and then it took them nearly a year to issue a new VISA, which they issued from Oct 2012 - Oct 2015.

Does that make sense?

Mercyknight
Junior Member
Posts: 76
Joined: Wed Mar 03, 2010 8:32 pm

Re: Discretionary Leave to ILR

Post by Mercyknight » Fri Sep 11, 2015 11:47 am

Is it worth going down this route:

Private life in the UK (10-year route)

She's lived her since January 2004 and we have two children and one on the way.

If this is an option, how does she apply under this rule/route? I've found loads of guidance on it but I don't know how we switch her to that.

The other option is FLR (O)?

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