ILR Refusal suspect wrong application form

[covidvictim2020]

Please advise on below query and thank you in advance.

We received a letter from home office saying
“You applied for leave to remain as a dependent of a Points Based System Migrant on 03 August 2020. I am writing to tell you that your application is refused”.

Reasons for decision- Your application has been refused for the following reason
“In view of the fact that you were last granted remain as a Spouse of a Settled Person the Secretary of State is not satisfied that you meet the requirements of the rules to be granted leave to remain as the partner of a Points Based System Migrant.
319E of the Immigration Rules states;
319E. Requirements for indefinite leave to remain”

To qualify for indefinite leave to remain as the Partner of a Relevant Points Based System Migrant or Appendix W Worker, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused. Therefore you do not satisfy the requirements of the Immigration Rules for this category and it has been decided to refuse your application for leave to remain as a partner of a Points Based System Migrant under paragraph 319E of the Immigration Rules.”

After reviewing the above refusal we think we submitted a wrong application SET(O) instead of SET(M) but would like to validate. Appreciate your thoughts and below is the immigration history for reference.

My wife initially got an ILR dependent visa to join me in UK in May 2015. Visa type been stamped as “spouse visa” in Passport. Initially she got visa for 33 months and received an extension in Feb 2018 under visa type “spouse/partner leave to remain” for another 30 months till August 2020 ( as a sponsor and partner I am holding British passport at the time of extension). Even though she is eligible to apply for ILR in May 2020 due to COVID-19 she couldn’t apply till early August as she couldn’t do her life in UK exam. During this pandemic, we couldn’t take advise and submitted wrong application in rush which we realised only yesterday after receiving refusal letter. She got an administration review option as part of the refusal letter but we are not if we can consider this incase of applicants fault.

Considering my wife’s current visa expired in August 2020 , Can you please advise on below questions,

1. From August 2020 to till now will it be considered as overstay OR can it be exempted if we do a fresh application.
2. Will overstay impact resetting the clock for ILR?
3. What is the best option now to stay in UK? Should we apply for ILR or leave to remain (Extension)?

[seagul]

https://assets.publishing.service.gov.u ... .0-ext.pdf

Regarding admin review, you can read through the above link as how it can/could maintain the section 3c which prevent the person from becoming an overstayer. But I still dont understand as what would you argue there but in my opinion what you can challenge is the none-exercise of evidential flexibility under paragraph D by which you must have been allowed to rectified the application leading to the grant of another FLRM extension assuming your were meeting the financial requirements.

Evidential flexibility
Under Appendix FM-SE there is discretion for decision-makers to defer an
application pending submission of missing evidence or the correct version of it,
within a reasonable deadline set for this. Decision-makers will not have to defer
where they do not think that correcting the error or omission will lead to a grant.

https://assets.publishing.service.gov.u ... gov-uk.pdf

[covidvictim2020]

Thank You seagul for inputs. Yes we surely meet the financial requirements for ILR however i am not sure what is the best option now - go with the new application? OR Administrative review? Trying to understand the pros and cons.

[seagul]

Cant see any error in the decision.

Get a decision
The decision will be checked for the errors you point out. Do not send new information or documents for review unless you’ve been asked to.

https://www.gov.uk/ask-for-a-visa-admin ... %20refused


You would still be remained covered by section 3C until the last date under which the admin review can be kicked in.

No administrative review application made
If an applicant whose leave is extended under section 3C does not apply for
administrative review following receipt of an eligible refusal decision, their 3C leave
ends on the last day on which they could have made an in time administrative review
application.

https://assets.publishing.service.gov.u ... .0-ext.pdf

In the light of all above, I will be more inclined to reapply an extension of FLRM or SETM (if you have passed the LIUK test & B1), and can meet the financial requirement before the expiry of section 3C. While doing so, I will point out their failure for not applying the evidential flexibility (as stated earlier) whilst requesting them to grant you the FLRM/SETM without resetting the ILR clock. However, in case, if that wont be effectual, then most probably you might be offered with flrfp visa which will despite reset your ILR clock under 5 years of route but will keep unharmed to your continuous residence.

[vinny]

If an applicant made an application in a wrong category, on a wrong form, then 34(1)(a) fails?

Then a vigilant caseworker may have considered 34B(1) and gave the applicant a chance to correct the error?

If AR fails, then reapply on the correct form.

[covidvictim2020]

Thank you Seagul and Vinny for your inputs. Looks i may have to go with the full application with the right form this time. Hope case worker will not treat time from leave to remain expiry date to new application date as overstay (criminal offence?) which may have effect other things in the future.