ILR refused - help needed

Post by **ban.s** » Sat Mar 23, 2013 11:00 am

manojult wrote: 4. It is not clear to me if my UK born son's UK citizenship has to be differed till both parents are settled(He was born before I applied ILR).

You can apply for his registration as per section 1(3). The requirement is settled status or BC for only one parents, either father or mother.

Post by **vinny** » Sun Mar 24, 2013 12:35 am

Previously,

319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for a period of at least 2 years.

Currently,

319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years

(ii) If (i) does not apply, the specified period is 5 years, during which the applicant must:

(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,

(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e), and

(c) have spent the remainder of the 5 year period, where applicable, with leave as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules.

(d) not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:

(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.

When writing "if A, B", there is an implicit "then" after the comma. Explicitly, it may be written as "if A, then B".

Putting in the missing "then" may make it clearer.

(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, then the specified period is 2 years

(ii) If (i) does not apply, then the specified period is 5 years, during which the applicant must:

(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,

(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e), and

(c) have spent the remainder of the 5 year period, where applicable, with leave as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules.

(d) not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:

(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.

Now let's see what (i) explicitly says.

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, then the specified period is 2 years

I think this is of the form: "If (A or B) and C, then D."
This is equivalent to "If A and C, then D" or "If B and C, then D".
Where:

A = "the applicant was granted leave as the Partner of that Relevant Points Based System Migrant under the Rules in place before 9 July 2012".

B = "the applicant was granted leave as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules under the Rules in place before 9 July 2012".

C = "since then has had continuous leave as the Partner of that Relevant Points based System Migrant".

D = "the specified period is 2 years".

Note that (A or B) just means that the applicant was granted leave as the (PBS or non-PBS) partner prior to 9 July 2012.

Note that the "since then" in C may refer to a time on or after 9 July 2012. Otherwise, (B and C) is false or B is redundant.

Note that C implies that the applicant must have leave as the PBS partner at the time of the application.

(ii)[(b) and (c)] requires that the applicant must be have been granted leave as the partner during the entire specified period of 5 years.

If there was a requirement in (i) that the applicant must have been granted leave as the partner for the entire specified period of 2 years, then (i) would have been written in the similar way as (ii), with only the specified period being different.

Therefore, I believe 319E(d)(i) still does not require the applicant to have leave as the partner during the entire specified period of 2 years.

indran · Post by **indran** » Tue Mar 26, 2013 2:42 pm

Manojult,

You should be following the previous rule (archieved) that Vinny pointed out. Not sure why Vinny is analysing the current 319E rule for your case since it doesnt apply to your wife as she had her dependent visa before the rule change. Her case should fall in the transitional arrangements put in place by UKBA (http://ukba.homeoffice.gov.uk/sitecontent/documents/news/soi-fam-mig.pdf; Page 8, 69 and among others)

You should stick to the previous rule for your appeal. If you talk about the current rule, you may lose the case since the current rule is vague and can be interpreted both ways.

manojult wrote: vinny - the previous version of the 319 E (d) is quite interesting. I would like to quote it in my reply. Where could I find the old version of Part 8(before HC 194).
Could someone mail it to manojult@gmail.com if you have a copy

Post by **vinny** » Tue Mar 26, 2013 10:21 pm

indran wrote:Not sure why Vinny is analysing the current 319E rule for your case since it doesnt apply to your wife as she had her dependent visa before the rule change. Her case should fall in the transitional arrangements put in place by UKBA (http://ukba.homeoffice.gov.uk/siteconte ... am-mig.pdf; Page 8, 69 and among others)

The analysis confirms that the current rule (319E(d)) is the same as the rule in place prior to 9 July 2012, when the transitional provisions are met.

manojult · Post by **manojult** » Thu Mar 28, 2013 3:06 pm

Thanks a lot for the help. Finally submitted an appeal yesterday via the company solicitors. They have submitted IAFT-1 only. No evidence or supporting documents. They said they will be doing that closer to the appeal date. I have in the mean-time passed on the Statement of intent, rules in place before 9th July 2012, UKBA's explanation http://www.ukba.homeoffice.gov.uk/visas ... ependants/
and the interpretation of the current 319 E (d) (i) rule similar to what vinny had put up.

Seems odd that they havent updated
http://www.ukba.homeoffice.gov.uk/visas ... ependants/
after 9th July 2012. This is misleading.

manojult · Post by **manojult** » Tue Apr 30, 2013 3:44 pm

The appeal is listed on Aug 5th 2013. So they have my wife's passport for atleast a year. Will keep the forum updated after the appeal.

vc2013 · Post by **vc2013** » Sun Jul 14, 2013 12:58 pm

manojult wrote:The appeal is listed on Aug 5th 2013. So they have my wife's passport for atleast a year. Will keep the forum updated after the appeal.

I have a similar situation and I am planning to apply for ILR with my dependent on 08 Aug. Please share your experience after 05 Aug

manojult · Post by **manojult** » Mon Aug 05, 2013 8:33 pm

The appeal was allowed. Thanks a lot everyone for the support. I will update the post with the case reference numbers when I get the determination in writing. The hearing was today. The hearing was quite straightforward. At the start, the presenting officer said that the UKBA was withdrawing the decision to deport her. Then my barrister started explaining the situation with the UKBA guidance, old rule and the new rule. The judge listened patiently, took some time to understand it and finally asked why was the application refused. The presenting officer did not speak anything through the hearing but for the first sentence.

Post by **vinny** » Tue Aug 06, 2013 2:10 am

Congratulations!

vc2013 · Post by **vc2013** » Tue Aug 06, 2013 2:07 pm

congrats!!

manojult · Post by **manojult** » Fri Oct 11, 2013 2:24 pm

Finally got the ILR. One year after application.

Deenfat · Post by **Deenfat** » Sun Mar 30, 2014 10:16 pm

manojult wrote:The appeal was allowed. Thanks a lot everyone for the support. I will update the post with the case reference numbers when I get the determination in writing. The hearing was today. The hearing was quite straightforward. At the start, the presenting officer said that the UKBA was withdrawing the decision to deport her. Then my barrister started explaining the situation with the UKBA guidance, old rule and the new rule. The judge listened patiently, took some time to understand it and finally asked why was the application refused. The presenting officer did not speak anything through the hearing but for the first sentence.

Manojult, you said you were going to update the post with your case ref no - could you help with the case no so that some of us in similar condition may cite it if/when the need arises?

cheers

manojult · Post by **manojult** » Sun Jul 08, 2018 9:09 pm

Appeal Number : IA/09249/2013
HO ref: v1126172
Judgement Date 14 Aug 2013

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ILR refused - help needed

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