FLRM form but got 3 year discretionary Leave

[afridi786786]

I got ILR on 10 yrs base. My wife and one son came here (UK) 2010 as tier 2 dependent and they are eligible for 2 yrs visa but unfortunately we were away for holidays and in 29 july 14 new rules came in even for person came before 09 July 2012. Any way I have income of £20000.00 and my wife has £5800.00 I applied for FLRM only for my wife and in application I mentioned that only £18600 income is required (please keep in mind now I have 3 kids ( two born in UK ) and I also mentioned that I am not applying for children with her but i wrote their detail in section 4. In additional information I also wrote to them(HO) that my children are eligible for British registration MN 1 forms are already submitted to Home office waiting for decision/ certificate. But the Home office refuse FLRM for my wife and issued visa for 10 yrs FM route. The reason they refusing visa that I need £27200.00 income limit because of 3 kids. (not fulfilling financial requirements) Please advice me Do I need to earn income for my kids even they are British born. What should I do now. Should I do appeal etc
Please advice me
I look forward

[Obie]

It is strange that they did this.

You child born in the UK are subject to 306 of the Immigration rules and not appendix FM.

The Secretary of State should not have said they are subject to appendix FM.

Besides you have registered the child.

[afridi786786]

thanks for reply Please let me know what should I do know ? non of my children application was submitted with my wife FLRM application. They are KING of Jungle What else they want to do they do Either they want to give eggs like hen or they want to give birth to mammals. The application was over looked or they are not enough experience to understand my application.
I am waiting for replies I look forward Thanks

[Zee ali]

thanks for reply Please let me know what should I do know ? non of my children application was submitted with my wife FLRM application. They are KING of Jungle What else they want to do they do Either they want to give eggs like hen or they want to give birth to mammals. The application was over looked or they are not enough experience to understand my application.
I am waiting for replies I look forward Thanks

Did u apply your 2 uk born children MN1 application at the time u put your wife flr m ?

If yes did u mention it in your wife flr m ?

what about your 3rd child who is not born uk? u should applied for his/her visa in your wife flr m.

[vinny]

The child who was not born in the UK should have been included in FLR(M).

Unfortunately, the definition of "child" in E-ECP.3.1, E-LTRP.3.1 does not differentiate between UK-born children and non-UK born children.

In this paragraph "child" means a dependent child of the applicant who is-
(a) under the age of 18 years, or who was under the age of 18 years when they were first granted entry under this route;
(b) applying for entry clearance as a dependant of the applicant, or has limited leave to enter or remain in the UK;
(c) not a British Citizen or settled in the UK; and
(d) not an EEA national with a right to be admitted under the Immigration (EEA) Regulations 2006.

is applicable, because children have leave as a dependants, due to travelling.

The extra financial requirements for the children will cease once they become settled or British.

[Obie]

The thing Vinny is, one cannot mount a credible challenge against the inclusion of the child who was not born in the UK, Such challenge will be bound to fail.

The difficulty with this case, is that they added the 3 children, as opposed to just they one that they were entitled to add.

Had they just add the one child that entered with the mother , then the financial requirement of 22,400, if i am correct would have been met.

Combine family income is 25,800.

For 1 or 2 children, they will be fine, but not for 3.

They were wrong to add the UK born Children, as they qualified under the rules i cited, no need for them to meet financial requirement. Their position is protected by the old part 8.

[vinny]

I think that you would be correct had the UK born children not travelled nor previously applied for leave.

Rightly or wrongly, I think they were following their instructions.

In addition, if a child who was born in the United Kingdom but is subject to control qualifies for leave to enter or remain under any other part of the Rules, he may be given leave in accordance with the provisions of that other part.

[Obie]

Whether the 2 children had travel or not, does not affect the application of 305 of the rules to them .

In this instance, no application was made for them.

The UK has record of them and decided to impose financial requirement.

305 says, the children born in the UK qualifies under 305, which has different regime from Appendix fm.

The older child is clearly an appendix FM case.

The rule is that the children born in UK are entitled to length of residence similar to the parent with the longest leave. This is the opposite of the other provision.

I am unconvinced that the rules or their guidance permits them to do this.

[vinny]

Indeed, I'm unconvinced as well.

There may be multiple rules applicable. I do agree that it would be better if the UK born child rules (304-309) take precedence over the other dependant rules as instructed.

It's accepted that there is no requirement for non-travelling UK-born children to apply for leave to remain. Why should these children be disadvantaged and subject to other dependant rules when they apply for leave?

Unfortunately, caseworkers seem to take the opposite view and consider other dependant rules first instead of 304-309 (e.g. family members of Tier1 (General), Tier 2(General), Tier 4, etc. Pointedly, for leave to remain applications, they completely ignore that 319H(c) fails). If they do that, then what is the point of having rules 304-309 in the first place? There isn't even a specific application form for this category.

[afridi786786]

Dear Obie and Vinny,

Thanks for your response.
One more thing I noted while My mrs new biometric card valid until 19 Nov 2017(3 years leave) but in the letter mentioned that due to exceptional circumstances granted 30 months limited leave outside the rules and granted permission to stay until 19 May 2017.
I want to write to caseworker please help me in this regard.My details are as follows;
Granted ILR on long residency on February 2014
2 children born in uk
1 children born in pakistan
(All three children have Tier-2 PBS Dependent)
Applied for all three children on Form MN1 and received acknowledgement but application still in process and not decided yet(Child born in Pakistan to register on discretion by solicitor )
Applied for my Mrs on form FLR M on September 2014 and also filled section 4 dependent children(all three) but say no to 4.4 b for all three children (Is this child applying with you?) and tick the box 7.2 as below
Applying with no child dependant - an income before tax of at least £18,600 a year.

But Mrs LTR refused and granted the leave as mentioned above.
They said the Income demostrated £25564
but falls below £27200
so refused.

But what to how to write to case worker?
Please if you give me a sample letter with mentioning relevant section of immigration rules so that I am able to convince the case worker that he was wrong .

I will be very thankful to you if you help me in this regards.

Kind regards,
Ahmad

[Obie]

It is highly unlikely that the child that was not born in the UK will qualify under section 3(1).

It was wrong that they suggested you include that child in MN1.

[afridi786786]

Dear Obie or Vinny
Child born in Pakistan applied on MN1 under Section 3 (1) and two UK born child under Section 1 (3) But currently thats not the issue please advise me regarding my mrs as I have provided details in my above post.
kind regards,
Ahmad

[Rayking]

Though not good at all these laws but I think this could have been avoided had you sorted out the kids application and got the result before applying for your wife.
I guess the applications,even though with them haven't been approved before your wife's application was treated.

[rehan01]

well what is done is done ..... but ideally you should have waited for MN1 decision for kids and then applied your Mrs visa ....... as once they got Naturalization they are British and you wont be in mess you are in now ..... anyway that is what i did ... i applied for my son Naturalization (applied 21/08/2014 received 21/11/2014) and now i am going to apply for my wife FLR M using PEO service.

regards

[vinny]

But what to how to write to case worker?
Please if you give me a sample letter with mentioning relevant section of immigration rules so that I am able to convince the case worker that he was wrong .

I will be very thankful to you if you help me in this regards.

Kind regards,
Ahmad

I suggest that you wait until the UK-born children have been granted British citizenship. Then you may say that E-LTRP.3.1 isn't applicable to them anymore.

[Obie]

I can breath a sigh or relief.

I did an application in exactly the same position as the OP, and the spouse was approved this morning. I was most concerned by this thread.

My argument in the cover letter was this.

1. Section 1(3) of the 1981 act confers no discretion on the decision maker, Once one of the parent has been granted settlement or become British and an application is made, the child shall/must be registered, therefore if they were to consider E-LTR-P 3.1 to apply, it will upset section 1(3), as an application has been lodged under that provision.

That in any event the position of the child must be considered in accordance with 305 of the rules which contains no financial requirement, and if that was to be done, the child will qualify for ILR immediately.

That the child is not dependent on the applicant but the settled person, and therefore the requirement of that provision is not met in this case.

Fortunately we succeeded, and D-LTRP was issued this morning, under 5 years route. Still awaiting the registration certificate, which we have been informed will be issued within 2 weeks.

I think the erred in the approach in OP's case.

Rather than only considering the child that entered with Entry clearance, they considered all the children.


In the definition for Child under E-LTR-P i believe several argument can be constructed.

[vinny]

Great news!

Good result. The same arguements for the UK-born children may be used here.

[Obie]

It is a great news, as credibility was on the line.

This person had received contrary view from 3 other advisers, and if his wife had been refused, he would have thought i was the one that does not know what he is doing.

I believe OP can test the waters on that one.