Got ILR - Should Wife go for FLR (M) or SET (M)

To prevent her from being an overstayer and lose her rights to work, she should apply in-time and use the latest version of the form.

An ILR holder claiming child benefit should be okay.

Applications under Appendix FM must satisfy Appendix FM-SE.

Do also ask for a reconsideration with regards to yesterday's refusal of her SET(M) application.

Vinny,

Can I immediately ask for reconsideration via email? Or should I write a detailed letter and ask them to reconsider the SET(M) rejection first and then based on its outcome ask for 'FLR (M) on the same day?

We have been given an appointment in Sheffield PEO on 2nd of November at 8 am for FLR

Regards,

I think she should request a reconsideration as soon as possible, before her appointment.

Reconsideration request wrote:When your request will be rejected
Your reconsideration request will be rejected if you:

make a new application before or after you send the request

The important points to note are that A280(c) (and hence, 2.3, 3.4 and 4.5) was also applicable to her initial FLR(M) application, as she has limited leave to enter or remain under Part 8 before 9 July 2012. If it wasn't, then PBS dependants of ILR holders via Long Residence couldn't benefit too.

Prior to 6th April, 2014, she may switch to FLR(M) under A280(c) and 285.

Note that

[url=https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/289857/HC_1138_EM_Web_Accessible.pdf]Implementation[/url] wrote:(c) With regard to the other changes, if an applicant has made an application for entry clearance or leave before 6 April 2014, the application will be decided in accordance with the Rules in force on 5 April 2014.

Therefore, the initial caseworker should not have disregarded A280(c) and 285, because of A277.

A277 wrote:A277 From 9 July 2012 Appendix FM will apply to all applications to which Part 8 of these rules applied on or before 8 July 2012 except where the provisions of Part 8 are preserved and continue to apply, as set out in paragraph A280.

If the initial caseworker had correctly granted her FLR(M) leave in accordance with A280(c) and 285, then SET(M) under A280(c) and 288 would be applicable now.

Thanks Vinny, I'm preparing a complaint letter. Not sure if I'll get a response before 2nd but worth a try.

Two questions.

I'm thinking of asking them to reconsider the section under which she got her FLR(M) extended rather than the ILR rejection. What do you think?

When rejecting the ILR, the senior case worker at sheffield told me that the reason why I could have been granted FLR(M) under new rules was that I used the FLR (M) form for extension rather than the 'PBS Dependent extension' form. When I asked how my wife could apply for extension as a PBS Migrant when I myself was not a PBS Visa holder, the case worker said that was not a problem. She kept on insisting that I used FLR M wrongly. What do you think?

Regards,
SRK

The grant of FLR(M) incorrectly under Appendix FM and the subsequent refusal of ILR are linked.

At the time that your wife made the FLR(M) switch, A280(c) was applicable to her, as she has limited leave to enter or remain under Part 8 before 9 July 2012. The caseworker should have granted leave under A280(c) and 285, in accordance with A277. It was only from 6th April 2014 onwards when 285 became impossible, because 284(i)(c) fails.

I'm drafting a complaint letter. But not much hope as the complaints procedure usually takes ages. Highly unlikely that it would be responded within a week before we go again to renew visa

Then, perhaps at the appointment, try to persuade a different more senior caseworker to the logical point of view.

They may try to invoke A280B, but that would be unreasonable.

Hi, Should we now use FLR (M) for extending my wife's visa?

Confused because of the below point

As the partner of a person granted indefinite leave to remain in a work route, if you are currently
in the UK as their dependant.

Interestingly, there appears to be nothing to prevent her from switching back to being a PBS partner under 319C. Then it seems that she may even qualify for SET(O) in Dec 2016 under 319E.

However, as they have granted her FLR(M) (incorrectly) under Appendix FM, then she may also extend with FLR(M).

vinny wrote:Then, perhaps at the appointment, try to persuade a different more senior caseworker to the logical point of view.

They may try to invoke A280B, but that would be unreasonable.

it is a bit late in the day, OP ought to have taken action sooner, if he felt there was an error, which i accept exist.

It's understandable for the OP to miss the significance of being granted leave for a period of thirty months instead of twenty four months. Moreover, the OP's wife should have been eligible for ILR in December 2013, well before the changes.

Well we know from the caselaw of the court, that the immigration rules, in the absence of transitional provision has effect on the day it enters into force, therefore, notwithstanding my frustration about OP'S predicament, ,he cannot say the rules in 2013 applies to her and therefore she ought to succeed in 2015, even though those rules are no longer in force.

Vinny, with the utmost respect, I am not convinced that is how the rule works.

My point simply was that the transitional provisions were in force and applicable on the day of the initial FLR(M) decision. It was wrongly ignored. The caseworker had made a mistake then. The OP's wife is paying for the caseworker's mistake now.

vinny wrote:My point simply was that the transitional provisions were in force and applicable on the day of the initial FLR(M) decision. It was wrongly ignored. The caseworker had made a mistake then. The OP's wife is paying for the caseworker's mistake now.

Vinny I appreciate that. I am sure I have been here long enough for you to form a view of my views on these things.

I am just as frustrated about such injustice. However I am just concerned that with the passage of time and the hostility of the system, OP may have a bit of fight on his hand.

From the bottom of my heart I do wish them all the best.

If some of UK'S lawyers had integrity , then OP might have consulted them and these unfortunate situation may have been prevented or avoided.

Yes. It would have been easy if the caseworkers accepted that a mistake had been made.

You are clearly correct that the OP has a fight on his hands, as we have witnessed on this thread.

We applied for extending my wife's VISA through FLR(M) after this fiasco. She was given an extension for 30 months and that expires in May 2018.

I'm just seeing her extension letter which says ''I am writing to you to inform you that you have been granted a period of 30 months limited leave to remain under paragraph D-LTRP1.1 of Appendix FM to the Immigration Rules as we are satisfied that you meet the requirements of paragraphs R-LTRP1.1(a), (b) and (c) of these rules. You may be eligible to apply for settlement after completing at least 5 years under this route'

Does this mean that she can apply for ILR in May or do we have to extend for 30 more months? I'm totally confused now.

She first came to UK as T2 Dependent in December 2011.
She moved to become my ILR Dependent in May 2013.
Her ILR got rejected in October 2015 and was granted further leave to remain in Nov 2015 for 30 months.

srk2012 wrote: ↑

Wed Mar 14, 2018 9:34 pm

Does this mean that she can apply for ILR in May

Yes.

If she was switched to the 30 months, she cannot qualify for ILR under that provision unless 60 months has been spent under that category.

She switched to FLR(M) in May 2013.

vinny wrote: ↑

Thu Mar 15, 2018 2:43 am

She switched to FLR(M) in May 2013.

I still do believe A280B will pose a difficulty. I see little is any reason for me to depart from the views I expressed in October 2015.

But didn't they (mistakenly) put her on the 5-year path under Appendix FM in May 2013, as her initial FLR(M) was for 2.5 years instead of 2 years?

Instead of correcting their mistake and granting her ILR, they extended her FLR(M) under Appendix FM under the 5-year path.

Hence, they considered both her leave, from her initial FLR(M) granted in May 2018 to her subsequent FLR(M) extension granted in November 2015, to be under Appendix FM, 5-year path.

So, she may apply for SET(M) under Appendix FM (in around May 2018), no sooner than 28 days before the 5th anniversary of her initial grant of FLR(M) and before her leave expires.

Obie wrote: ↑

Wed Mar 14, 2018 10:57 pm

If she was switched to the 30 months, she cannot qualify for ILR under that provision unless 60 months has been spent under that category.

will be satisfied.

My understanding is the first 2 years was issued under 284. They ought to have pursued that and insist she was entitled to ILR on completion of that, but they did not. They allowed UKVI to give them 30 months instead.

The problem was that they didn't issue the first FLR(M) for 2 years under 284. They apparently issued the first FLR(M) for 2.5 years under Appendix FM.

srk2012 wrote: ↑

Tue Oct 20, 2015 11:24 am

I m in Sheffield peo. My wife came as pbs dependent in Dec 2011. I got ILR in March 2013. She extended her stay through FLR M in May 2013. They extended her stay for 2.5 years.

Yes...They issued 2.5 years visa under FLR(M) in May 2013. It was incorrectly issued and that's why her ILR was rejected. We re-applied for further leave to remain under FLR(M) and she got visa extended until May 2018.

Now I hope she can apply for ILR in May 2018 from all your responses.