Confused between FLR or PBS

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!

Hi Guys,
Hope you are doing good.
After deciding on filing PAP, we have a few concerns.
we are going to file our parents visa after this matter is sorted. I dont want it to have a negative effect on my parents visa just because we opposed home offices decision. Will it affect my parents visa?

Also I am concerned about the timeline this whole process will take. What if PAP takes longer than a month?
How long does it usually take?
Is it all worth the headache?
Feeling confused!! I know you guys have suggested going ahead with PAP but i don't want to waste a lot of time as I want to travel to UK soon as well..Please suggest...

mabhang wrote:Hi Guys,
Hope you are doing good.
After deciding on filing PAP, we have a few concerns.
we are going to file our parents visa after this matter is sorted. I dont want it to have a negative effect on my parents visa just because we opposed home offices decision. Will it affect my parents visa?

Also I am concerned about the timeline this whole process will take. What if PAP takes longer than a month?
How long does it usually take?
Is it all worth the headache?
Feeling confused!! I know you guys have suggested going ahead with PAP but i don't want to waste a lot of time as I want to travel to UK soon as well..Please suggest...

Hi Mabhang,

I am in the same situation now, Can you update what happened with you after your last post please?

A member on another forum was shocked to find that one of his clients had the same problem. With his kind permission, I'm sharing some of his posts.

Karl wrote:I don’t bloody believe it…

We’ve just one of these from a client’s dependant spouse this morning… The sole reason was because she did not apply for ILR at the same time as her (now settled) husband… what incompetence!

Fortunately, after initial resistance, the curtailment department eventually apologised and reinstated leave.

Karl wrote:Photo of the letter received (sorry, I’m not sure how to upload images on here), but states as follows:

‘On 21 October 2015 a decision was taken to curtail your Tier 2 Dependant Partner Leave to Remain so that it would expire on 26 December 2015.

However, Home Office has reviewed your Immigration Status and decided to reinstate your leave to remain with immediate effect so that it will expire on the original expiry date of 18th April 2016.

Please note that this letter supersedes the notice to curtail leave and hope that you can accept our apologies for any inconvenience and confusion caused as a result of this error.
Yours sincerely

[signature]
MAN Team 2 – Tier 4 Curtailment

UKVI’

Both my client and I considered her best interests [time constraint] were best served by EMAIL —> MP —> UKVI. We had agreed to reduce the complexity of the matter and to omit mentioning the relevant rules, guidance and applicable cases and used instead such words: ‘incompetence in office’, ‘farce’, ‘cannot differentiate difference between canceled, curtail and superseded leave!’ ‘service of complaint to Parliamentary and health services ombudsman’. A bit extreme but it achieved the desired result.

I apologise for the image quality... it was how we received it (minus the redacting).

BTW, I do not advocate approaching your MP unless it is to resolve obvious errors in decisions / policies (such as in these cases) and / or where there are significant time constraints which may not be in your [client's] best interests to go through the traditional 'snail mail' route.

Karl.

This is one mistake to many and people ought to take legal action or seek damages for legal cost incurred.

The law is pretty straightforward, and without any obvious changes, they proceed with these illegal actions.