Overstayed 2yr spouse prob period-can i apply for ILR?

Hi does anyone have a definitive answer to the following:

If I was granted a 2 year spouse visa and after entering the UK completed my 2 year probationary period. Then I fail to apply for ILR before the expiry of the visa due to financial problems, can I still apply for ILR later as an overstayer (of a few years).
Rule 287 states that one must have completed the 2 year period to be eligible to apply. It does not mention anything about not being eligible if you have overstayed (which it does for applying for further leave in rule 284).
Any answers would be appreciated especially if you know of anyone who has made such an application and been either successful or not.
Many thanks.

You are absolutely correct, and the provision of 287 is still in place, for people who obtained spouse visa prior to 9th July 2012.

Hi Obie,
Many thanks for your quick reply.
How sure can one be that the Home Office will allow such an application considering the length of overstaying, say 3-4 years? £1093 is a lot of money to risk. Do you personally know of examples where such applications have been granted i.e. without having to be challenged or go to an appeal? Is it a dead certainty according to the rules or dependent on Home Office discretion?

PS I noticed that at some point 287(f) V(ii) was added to the rules. Before this it had only been up to V(i). V(ii) states that the applicant must not fall for refusal under the general grounds for refusal. Does that go against overstaying? It says the same for someone applying for ILR under the domestic violence concession, so perhaps not since that would be harsh.

Many thanks for your thoughts.

Hello,

Are you saying that after the end of your initial 2 year period, did you never go for apply for leave to remain and overstaying since?!.

If this is true, then I think the case worker will refuse your ILR application if you have stayed in UK without valid leave to remain. You may not even get any right to appeal.
Check with an immigration advisor.

Thanks,
BHP

The weight of advice on this forum from other threads, links and posts is that it IS possible to apply for ILR despite having overstayed one's spouse visa. That is because such applications are dealt with under rule 287 which does not specify that existing leave is required. Senior judges such as Storey and Ockleton have also backed this up. From the specific case examples I have heard about in this forum it would seem that such applications have been successful when a SET(M) application is made.

Nevertheless in the unfortunate circumstance that such application was refused MY QUESTION IS - would the Home Office also be obliged to consider the application under Section EX (Exception) of Appendix FM? The alternative to a SET(M) is an FLR(FP) where the spouse is married to a British citizen and has a British Citizen child. However if one applies for SET(M) and is refused on the basis of overstaying, would the Home Office have to then go on to consider Section EX (which stands a much better chance of suceeding with a British child involved)? If so this would reduce the risk factor since on refusal of ILR one would not then need to make a further and separate FLR(FP) application for £601. I have a feeling this may be the case, but any assurances or otherwise would be appreciated.

ps correction in regard to my second post - it should have read when applying for ILR as a "bereaved spouse" rather than under the domestic violence (DV) concession. ILR for DV mentions nothing about the general grounds for refusal. I have since discovered that overstaying is NOT one of the general grounds for refusal (see rule 322) for such an application. This was pointed out in Senior Immigration Judge Storey's determination from Vinny's link.

The issue for me remains what happens IN PRACTICE. Even if one makes an ILR application and is correct" in law", it is still no joy if the application is refused and one must go through the time and expense of appeal to correct the decision. What would be useful is if anyone out there knows of a specific Home Office policy document which could be cited in an application. Any other further information or comments would also be much appreciated.

Refer to A280(c) and 288 and judgment.

Got it. Many thanks.

Hi Obie, Vinny or anyone else. Thank you for your previous advice which confirmed it would be OK to apply for ILR even though one had overstayed one's spouse visa (having completed the two year probationary period):

vinny wrote:Refer to A280(c) and 288 and judgment.

In light of all the recent changes in immigration rules, do you know if anything has changed or is it still safe to proceed with the ILR application? Many thanks.