Can Discretionary Visa varied to spouse visa before expiring

[gracewu]

In January 2010, I applied for indefinite leave to remain based on 10-years long residence. Before that, I was holding a work permit visa. My husband was granted a work permit dependent visa to join me in UK in December 2007. His visa was expired in July 2010.

Until his visa was expired, my indefinite leave to remain application was still under consideration in the Home Office. I was told by the Home Office to renew his visa using FLR (O) form, which I did in July 2010.

On 6th August 2010, I was granted indefinite leave to remain. In September 2010, he was granted a discretionary visa. I think that it is not right. As he came in as my husband, he should have been granted a spouse visa.

I then required reconsideration. Until April 2011, the home office returned his passport and refused the reconsideration. Then, we made a fresh application using FLR (M) last month and got a reply yesterday.

The Home office refused to vary his visa to spouse visa as follows:
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Notice of Decision
Immigration Ace 1971
Variation of Leave or Refusal To Vary Leave

You applied for leave to remain as the spouse of someone present and settled in the UK but your application has been refused.

You have applied for leave to remain in the United Kingdom as the spouse of XXX. However the immigration rules direct that a person seeking such leave is to be refused if they do not meet the requirements set out in paragraph 284 HC 395. Paragraph 284 (i) requires the applicant to have limited leave to enter or remain in the UK which was given in accordance with any of the provisions of the Rules other than where as a result of that leave he would not have been in the UK beyond 6 months from the date on which he was admitted to the UK on this occasion in accordance with these Rules, unless the leave in question is limited leave to enter as a fiancé(e) or proposed civil partner or unless the leave in question was granted to the applicant as the spouse, civil partner, unmarried or same-sex partner of a Tier 1 Migrant and that spouse or partner is the same person in relation to whom the applicant is applying for an extension of stay under this rule. On 01/09/2010 you were granted leave to remain not in accordance with immigration rules (discretionary leave) from 01/09/2010 until 01/09/2013. You do not therefore meet the requirements in terms of leave set out in paragraphe284 (i).

You are not entitled to appeal this decision. Section 82 of the Nationality Immigration and Asylum Act 2002 does not provide a right of appeal where an applicant still has leave to enter or remain in the United Kingdom and so is entitled to stay here.

You still have leave to remain where your current conditions continue to apply. Please ensure that you understand the conditions of your stay.

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But we want to have a spouse visa rather than the discretionary visa .I think it is ridiculous that he is holding a discretionary visa as he is always my spouse from the date he came in and he has been staying here legally since then.

As there is no right to appeal, I am thinking what else we can do.

Please help!

[vinny]

Please continue in previous thread.