Mum's settlement - unusual case

[geniebean8]

Hi

I wondered if anyone could provide some advice/opinion.

I am originally from Malaysia and have indefinite leave to remain in the UK, because I have been here for more than 10 years.

My mother, who is 50 years old, has been here with me the entire time - she even owns a house here. For the first 6 years, she was here on a visitors' visa when i was in school. For the past 5 years she has been here on a student visa, she did various english courses and progressed through a few levels, passing exams. I have been supporting her when working for the past 2 years. Before that my father (parents are separated, never married) used to send us some money, but he stopped since I started working.

We made an application for her for ILR under the 10 years' long residency rule, and she even took the Life in the UK test (as advised by lawyers) to strengthen her application. Unfortunately she was refused on the grounds that her time here on a visitor's visa doesn't count towards "continuous lawful residence".

We went to an appeal hearing, and got refused on the same grounds.

We are now considering whether to apply for her settlement as a dependent parent. It looks like it seems more difficult / complicated if the parent isn't over 65 years old.

What I'd like to know is as follows:
- does anyone have any opinion on how successful this application would be
- does anyone have any experience with such an application, and how difficult/successful was it?
- would she be better off applying from Malaysia than from here?

We have spent a lot of money on legal fees, and I am not sure I can continue to afford to pay even more. Our lawyer suggests applying but I would like independent opinion as to chances of success rather than spending £750 + legal fees on something which would ultimately be unsuccessful and a drain on finances.

Thank you very much for reading and for any advice you can give.

[sakura]

Hmm...I can see why she was refused. I really don't know anyone who could have been in the UK legally for 6 years on a visitor's visa....did any of her visas expire at all? Or did she have to return to Malaysia and apply for another visa? Since you have applied, appealed and it was refused...what has happened to her status now? Is she still here on a visa? If her visa(s) have expired, she would be classed an overstayer and certainly can't re-apply for anything, even a dependent parent visa, whilst an overstayer and would probably have to return home to submit the application.

Could you give us more details about her visas - did they expire, did she ever return home, etc?

[geniebean8]

Hi, thanks for your reply.

She never overstayed on any of her visitors' visas. She never had to apply for a visa before coming into the country - she just got a stamp at passport control in heathrow whenever she flew in.

She used to take me back to Malaysia every term holiday, so 3 times a year she would go in and out of the country. However she's never spent more than 6 months out of the country at a time, and the total amount of time she's spent out of the country is not more than 18 months in total, in accordance with the immigration rules for "continuous residence".

Her status now is sort of "in limbo", as the refusal was only issued last week and we only had until today to launch an appeal if we wanted to. We've just sent off an application for leave to remain for a few months for compassionate reasons - she is due to have an operation on her wrist next week (wrist was broken in december last year, but her operations kept on being delayed by the hospital - she's had 7 admission dates given to her since february, when she was still here on a student visa).

I am told that her immigration status here is protected, even if her visa has expired, if the time spent here is the time during whcih the home office are making decisions regarding her visa/leave to remain?

Thanks again for any advice/opinions.

[Wanderer]

I think ur enemy here is the unwritten rule that you shouldn't use a visitor visa as a settlement visa and that you should only spend six months in any 12 months in the UK on it.

[sakura]

I am told that her immigration status here is protected, even if her visa has expired, if the time spent here is the time during whcih the home office are making decisions regarding her visa/leave to remain?

What do you mean her status is now 'in limbo'? Has her visa (now) expired? Or did you post the FLR application on the remaining day of her visa?

[VictoriaS]

I agree that this appeal won't succeed. Assuming she had a series of 2 or 5 year multiple entry visit visas, she would have spend 6 months here then six months away, or something similar. This is not residency.

I think you need to look at whether or not she fits any other category.

Victoria

[geniebean8]

Thanks for all your comments.

VictoriaS and Wanderer, the most time my mum has spent out of the UK at any one time is 3 months - so she would spend maybe 4 of the 6 months of her visitor's visa here, leave the UK during school holidays with me, and then return in a month's time where she would be given a new visitor's visa at the passport control at heathrow.

sakura - Her student visa expired at the end of May, but we had submitted the application for indefinite leave before then. With all the decision time and time taken for the appeal etc, it was only towards the end of last week that we received the determination of her appeal, in which she had until today to lodge a further appeal if she wanted. The FLR application has been sent off literally today.

VictoriaS, what other categories would you suggest?

[VictoriaS]

VictoriaS and Wanderer, the most time my mum has spent out of the UK at any one time is 3 months - so she would spend maybe 4 of the 6 months of her visitor's visa here, leave the UK during school holidays with me, and then return in a month's time where she would be given a new visitor's visa at the passport control at heathrow.

She clearly was not continuously resident then.

VictoriaS, what other categories would you suggest?

I wouldn't. Take a look at the options from the government websites and see what she may fit into.

Victoria

[geniebean8]

VictoriaS and Wanderer, the most time my mum has spent out of the UK at any one time is 3 months - so she would spend maybe 4 of the 6 months of her visitor's visa here, leave the UK during school holidays with me, and then return in a month's time where she would be given a new visitor's visa at the passport control at heathrow.

She clearly was not continuously resident then.

I thought the immigration rules say that for continuous residence a period is not considered unbroken as long as the person hasn't spent more than 6 months at any one time out of the UK and has not spent more than 18 months in total over the 10-year period out of the UK? (276A)

[VictoriaS]

Oh no, it's far more complicated than that!

I think you might need a new lawyer! This application was simply never going to work.


Victoria

[geniebean8]

...as mentioned before, we sent off an FLR application asking the home office to grant my mum an extension of leave to remain in order for her to have her operation and recover (after they refused her indefinite leave application)...

... got the passports back today, and they've said no, because they received the application 1 day late (apparently)... they want my mum to contact them by this sunday to arrange her deportation...

.. I am completely disheartened by the home office's apparent lack of compassion... my mum currently has a cast on her right wrist and stitches on her hip... her stitches aren't due to be removed until a couple of weeks' time, and they are still monitoring the progress of her recovery...

... it is not exactly as if she can move around easily, let alone carry a whole load of luggage containing 10 yr's worth of belongings to travel back to a country where she no longer know anyone...

... yet it appears the home office's attitude is to remove as many people as possible, regardless of their circumstances. They might as well get rid of anything in their rules which mentions "compassionate" or "discretionary" or "human rights", as they don't appear to have considered any of these aspects in their decisions anyway...

...I feel this is completely unfair, and yet I can't do anything about it...

[VictoriaS]

Yes you can.

Has she been issued with a removal notice?

Get a solicitor to help with this. They will not remove someone who is not well enough to travel.



Victoria

[geniebean8]

I think the letter she got gives her the option of a voluntary removal with the International Organisation of Migration, rather than an actual removal notice. They just said we have to inform them of departure arrangements by this Sunday. The Home Office also currently have hold of her passports.

The solicitor we're dealing with has said there's nothing much we can do apart from comply with them...

The IOM has said their process usually takes a few months anyway, so if we go through them, my mum wouldn't have to leave immediately...

I currently haven't got any more money to spend on further applications to leave etc to the home office...

[VictoriaS]

Your solicitor should have told you that if she contacts them with evidence that she is too ill to travel they may grant her TA for a few months, until she is fit and can leave.

Victoria

[vinny]

...as mentioned before, we sent off an FLR application asking the home office to grant my mum an extension of leave to remain in order for her to have her operation and recover (after they refused her indefinite leave application)...

... got the passports back today, and they've said no, because they received the application 1 day late (apparently)... they want my mum to contact them by this sunday to arrange her deportation...

Was it her FLR or appeal that was not received on time? If it's her FLR, do you have proof of posting? Was it posted before her current leave expired? From Making an application:

When to apply

You should make your application before your authorised stay in the UK runs out.. In categories where you have to complete a certain period to qualify for indefinite leave to remain in the UK, you shouldn't apply more than 28 days before you complete the relevant period. The date of application is that on which you post it or have it accepted in person at a PEO. Your application may be delayed or refused if you apply too early in a category in which you have to complete a set period - for example, in certain categories leading to settlement in the UK. This advice is particularly relevant to applications in the categories for which you have to use Forms SET(M) or SET(O). Please see the guidance notes for those forms for more information about this.

If it was her appeal then see also FAQ 5 I am in the UK and I have been refused leave to stay - non asylum

My appeal will be late. What should I do?

If your appeal will not be received by the required date, you must explain why you were not able to submit it in time. You can do this in section 2 of the AIT1 application form. An Immigration Judge will then consider the documents and decide whether there are special circumstances that will allow your appeal to proceed. The Judge will not make a decision on your appeal at that stage. The Judge will only consider if your appeal can proceed.

1 day late seems severe.

[vinny]

Oh no, it's far more complicated than that!
I think you might need a new lawyer! This application was simply never going to work.


Victoria

Can you please expound more?