Set (LR) – Wife & Son

[Tier 4]

I am applying Set (LR) next month and spouse visa for my wife (my dependent since Nov 2010). I have two questions;

• I don’t meet the financial threshold for my wife, is it right to apply on FLR (FP)? What are the chances of success?
• I have a son born in UK last year should I mention him in this application process or skip him altogether?

Thanks

[Amber]

FLR(FP) is an alternative. Mention in the application that the child will be registered as British as soon as the Father is granted ILR that ought to be enough to engage Exception 1 and enable leave to be granted.

[Tier 4]

FLR(FP) is an alternative. Mention in the application that the child will be registered as British as soon as the Father is granted ILR that ought to be enough to engage Exception 1 and enable leave to be granted.

Thanks Amber what will my wife visa be like, I know it's not going to be spouse visa then what's it's ll be called and how long will it be, in case we get successful?

[Obie]

Not Sure exception 1 will apply in this case.

If your wife was in employment, and you are also in employment, then your salaries will be aggregated.


There are two uncertainties here, 1, Would you succeed in You ILR application (2) Would your child succeed with regustration (3) will the application be put on hold during that period.

Appendix FM-SE paragraph (D) , Prevent further evidence from being provided once an application has been made.


Essentially you may be able to vary, if all the above work in your favour, but the Secretary of State will not be under an obligation to take account of new evidence that arose after your wife's application.


You only option is to vary, or hope that these evidence wil be available in an appeal.

[Tier 4]

Not Sure exception 1 will apply in this case.

If your wife was in employment, and you are also in employment, then your salaries will be aggregated.

Thanks,

Well my wife is in self employment as she teaches online to student abroad, but she recently registered herself in HMRC for taxes and proof of income. Her first tax returns / self assessment will be next year as sole trader / self employed, therefore we don't have any other sources to prove her income to add-up mine right now.

There are two uncertainties here, 1, Would you succeed in You ILR application (2) Would your child succeed with regustration (3) will the application be put on hold during that period.

Appendix FM-SE paragraph (D) , Prevent further evidence from being provided once an application has been made.


Essentially you may be able to vary, if all the above work in your favour, but the Secretary of State will not be under an obligation to take account of new evidence that arose after your wife's application.

You mean there are chances that my wife application gets refuse even before my ILR application decided?

You only option is to vary, or hope that these evidence wil be available in an appeal.

Do you mind to expand on this:
Vary onto which one?
Are you talking about if my wife gets refuse on FLR (FP)?

[Obie]

At this moment your wife does not qualify under any of the provisions of appendix FM.

There is no child who has lived in the UK for 7 years or a British, Financial requirement aren't met and you are not aBritish or settled person. Furthermore FM-SE prevents you from supplying new evidence after the application, and Ex1 does not apply.

Only thing to hope for, is that everthing goes in your favour in good time , whiles her application is live.

That you get ILR in time , you son's Registration is successful. Then you can Vary the application to FLR(M).

May need to seek competent assistance on this.

Quite a complex matter, and I am not sure if I have explained it to your understanding.

[Amber]

FLR(M) will not be successful if you fail to meet the Financial Requirement, once ILR is granted exception 1 should engage.

[Obie]

FLR(M) will not be successful if you fail to meet the Financial Requirement, once ILR is granted exception 1 should engage.

Exception 1 will not engage if he gets ILR, as ILR will not make him a British, neither will it confer automatic right to British Citizenship to the child.

[Amber]

Exception 1(b) applies where the partner is British or settled Obie, assuming the child was registered then 1(a) would also engage. Arguing that there are insurmountable obstacles to family life continuing outside the UK and/or that it would not be reasonable to expect the child to leave the UK is an additional matter.

[Obie]

No Amber, it does not say British Citizen or settled in the UK. It states A British Citizen , Settled in the UK or refugee......

Therefore I dont think the British Citizen is disjunctive from the settled in the UK. If they had said British Citizen or settled in the UK, then perhaps you would have been correct.

If what you said is correct, then it will be as good as saying all FLR(M) applicant will qualify under exception one. A person can only qualify if they are the spouse of a settled person , British or Refugee.

[Amber]

Exactly, the person will be the spouse of a settled person once his ILR is granted, exception 1(b) does apply to all those that FLR(M) applies to, but has the additional burden that there are insurmountable obstacles to family life continuing outside the UK, whereas, FLR(M) has a Financial Requirement, English Requirement and is a 5 year route to settlement.

[Obie]

I dont think UKBA reads exception 1 in the way you do, and I dont either.

Exception 1(b) will apply if there is a British Citizen , settled in the UK and not to British or settled person.

The British Citizen is linked to settled in the UK and not alternative to it.

Therefore to qualify the spouse has to be a British and settled in the UK.

If someone has a British spouse settled in the irish republic, they will not qualified.


Settled in exception one does not have the meaning in the 1971 act, but rather the ordinary meaning in English dictionary.

[Amber]

I disagree for two reasons:

1. Exception 1(b) states:

(b) the applicant has a genuine and subsisting relationship with partner who is in the UK and is a British citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection; and there are insurmountable obstacles to family life with that partner continuing outside the UK.

I have highlighted that it already states the partner must be in the UK so stating settled for terms of residency rather than status would be unnecessary.

2. To allow exception 1(b) to apply to British nationals, refugees or those with HP but not those who are settled (have ILR/PR) would be illogical not to mention unfair. Exception one is not a route itself but an exception for those who cannot qualify under FLR(M) that is the partner of a British National, settled person, refugee or one with HP.

[Obie]

Will I beg to defer. You see in the other categories they put or. Between British Citizen ,, settled in the UK there is no or.

I am of the view that British Citizen, settled in the UK are not disjunctive. They work hand in hand.

I dont think it is illogical.

The High Court case in MM that was set aside by the Court of Appeal endorses that position.

I have had nearly 4 refusals on this points. I did not see the need to challenge it, as I believe British Citizen and Settled in the UK are linked.

It may well be the case that both myself and UKBA are wrong on this point.

[Tier 4]

Well to be honest, the way I see it got two options: 1- Send my family to back home once I receive my ILR and meet financial side bring em back. 2- Fight all these idiotic rules here, as most of them makes no sense at all.

[Amber]

Using a comma separates the items, if they had intended to mean British and settled they would have wrote such like I say directly before this states in the UK.

It should be read as is in the UK and is British or settled and is in the UK and is a refugee or one with HP. To ignore settled people yet include refugees and HP would be illogical to me and if the UKVI tried to argue such it would need appealing.

[Amber]

Additionally I think my interpretation is further support by what the UKVI write before exception 1:

Paragraph EX.1 is not to be considered in isolation. It is not a route in itself, but the basis on which applicants with family life in the UK can be granted leave to remain on a longer (10-year) route to settlement under the rules where they do not meet certain of the eligibility requirements of the 5-year partner route.

So they state for those who do not meet the eligibility under the partner route, who can apply under the partner route? Partners of British nationals, settled persons, refugees or those with HP. The UKVI did not state those who fail to meet the eligibility under partner route expect for those who have partner's who are settled.

See https://www.gov.uk/government/uploads/s ... _1__1_.pdf at page 36.

[Tier 4]

FLR(FP) is an alternative. Mention in the application that the child will be registered as British as soon as the Father is granted ILR that ought to be enough to engage Exception 1 and enable leave to be granted.

Hi Amber, a question for you; I have decided to apply FLR (FP) for my Mrs, should I mention my child in her application as well, as he was born in UK last year.

As you know single person fee is £601 and with one dependent is £1202

If I do mention my child do i have to pay £ 1202 in fee or you reckon just mention my child but not include him in FLR (FP)?

Thanks

[Amber]

You may wish to request that the FLR(FP) application is placed on hold until you are settled. Explaining that once settled your child will be registered as British as born in the UK thus engaging exception 1(a) and 1(b).

[Tier 4]

You may wish to request that the FLR(FP) application is placed on hold until you are settled. Explaining that once settled your child will be registered as British as born in the UK thus engaging exception 1(a) and 1(b).

Many Thanks

[vinny]

Exception 1(b) applies where the partner is British or settled Obie, assuming the child was registered then 1(a) would also engage. Arguing that there are insurmountable obstacles to family life continuing outside the UK and/or that it would not be reasonable to expect the child to leave the UK is an additional matter.

48 appears to agree with Amber. Otherwise, E-LTRP.1.2 would also exclude settled people who are not British.

[Tier 4]

I am applying Set (LR) next month and FLR (FP) for my wife, both applications forms require different address to send, but I wanted my wife application FLR (FP) to decide / consider after mine Set (LR); what’s the best method to send?

• Should I put both application forms in one / same envelope and send at Set (LR) address?
• Or should I send my mrs FLR (FP) at its own address "separately"?

[Tier 4]

Can someone please help me out here please.

[Amber]

If we look at 399 which mirrors Exception 1 for deportation, HC532 has now changed:

In paragraph 399(b), for “British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection” substitute “British Citizen or settled in the UK”.

This would confirm how the wording is to be interpreted.

This would be a strong argument for exception 1.

[Obie]

Well it seems that provision provides explicitly for an Exception, by providing for a substitution , which shows it was seeking to extend the scope.

It will be quite odd, that for a child the rules provide for the Child to be a British or has lived in the UK for 7 years of his life, whereas in the case of the spouse, simply having an ILR suffices, irrespective of how long the spouse has resided in the UK for.

How can the rule provide more favourable position for an Adult with ILR who has lived in the UK for 5 Years, than a child who has lived in the UK for 5 years with ILR. Don't you think that is odd?

In you favour Amber, you can use the argument you constructed above, and the fact that the FLR (FP) seem to cover the scope of people you mentioned.

I have seen 3 refusal , where the UK VI or whatever they are called these days, states that exception 1 does not apply.

It could be the case, that it was not engaged rather than does not apply, but that is the refusal.

The UKBA will have no difficulty if the could was to rule that Ex does apply, although the court in MM albeit in obit er, took the view that the financial requirement could be applied to settled person in a way an manner in which it should not apply to a British.


It is a grey area, even if it was agreed that Ex1 does apply, the test for engaging it in an adult case, is more restrictive than in a child case, so it still may not assist OP, save for the fact that he would be deemed to have made a correct and valid application if ILR is approved.