IAS administration left us in a right pickle, need advice

[Zeeman76]

I am really hoping someone can offer advice regarding my wifes uk spousal visa expiring..

Her visa expired in may 2011 (we thought it was expiring in june). We made an appointment with the IAS who saw us for one appointment, took all our details and stated it shouldnt be a problem as they had dealt with worse cases (only half a month expired when we realised and checked what was meant to happen).

After waiting for a couple of months (trying to call on occasion only to get constant ringing) we got a letter to inform us they had gone into administration and our details would be passed to a solicitors office.

About a month later we got letters from a company (GH Cornish) who said they had taken on the case. They explained due to a backlog it might be a while and that they were looking to go a different route to the IAS (ias claimed another 2 year spousal visa whereas GHC claimed moving onto the next visa which I believe is ILR). It was highlighted that my wifes son had already been given ILR on his initial visa and that this was a mistake by the UKBA.

We have been waiting a few months now and still heard nothing and are starting to get more than a little concerned. My wifes visa now expired 6 months ago and we have enough money available for whatever the next move is meant to be. We are not really people who understand immigration laws, it seems like a real minefield.

In this time I have lost my job and am now claiming jobseekers..

Well, to be more accurate, I lost my intital job due to a bad bout of Sciatica caused at that job (now seeking compensation), which then led to a bout of reactive depression. I "sorted myself out" and then found a part time job (all I could find at the time, figured better than nothing). I then found a new full time job and was asked by "the boss" to commit tax and benefit fraud, which of course I refused, only to be fired less than a week into this new position).

Additionally, We have had a child born in this country (october 2010) and are not sure what difference that makes, if any. I am subject to a ten year ban for overstaying in the US so we cannot return there to be a family if she is removed from the country. We were determined to pay for the visa's and "do things right" but were given what I consider duff information.

In this time we sought help via the citizens advice but the CAB for our area had their funding cut and no longer had an immigration specialist.

We live in norfolk and the nearest available help is in essex which we cannot afford to travel to (GH Cornish, also in essex, says we can deal with things "over the phone" but have yet to get back to us and we simply want to try and "get things right" as possible given the situation, so we can simply get on with our lives and not feel like were in limbo).

I am hoping someone can offer some advice and not just pass judgement as I have seen on other forums. Upon getting the intital 2 year spousal visa for my wife and son, we were simply told by the US based lawyer "after 2 years you can apply for ILR, enjoy your new life in England" Having looked into things for ourselves this was was hardly a detailed explanation of what was needed to stay within the UKBA policies and avoid any of the problems we face now.

[geriatrix]

Has your wife passed the LITUK test?
See also visa ran out and Help.

[Zeeman76]

After a quick search I see what you mean my LITUK test..

She hasnt passed it thats the first we heard about it. I am surprised this was not mentioned by the IAS guy when we had our initial meeting as it seem like a fairly easy part of the process for us to be getting on with..

I will look into booking one of these this week. My main concern is that they will try to remove her from the country or place her in a detention center.. With two children I am hoping this will not be the case but everywhere I look online I find confl;icting information and to be honest we are not the cleverest people at deciphering immigration based "legalese". We are the "like a quiet life away from the complexities of modern society" types and enjoy living a simple lifestyle in the countryside.

She has no place left to go back to in America (was renting an apartment and has no family who she can return to) and I dont want to see my family broken up.

Many thanks for this bit of info at least it gives us something to start getting on with

[geriatrix]

You refer to IAS and solicitors but it is not clear from your post if any application has yet been submitted since your wife's leave expired. Or is it that your were waiting for IAS to advice you on the issue, and now that onus has shifted to the solicitors?

Does she have her passport with her?

[Obie]

I believe your wife will need to apply for FLR, and you should write a statement detailing the circumstances surrounding the delay in renewing her leave and the lack of kol pass test.

I sympathise with your predicament wholeheartedly, but you will need to pay the fees for FLR. Try and encourage your wife to revise for, take and pass the test so she can apply for ILR.

I wish you all the best

[Greenie]

I believe your wife will need to apply for FLR, and you should write a statement detailing the circumstances surrounding the delay in renewing her leave and the lack of kol pass test.

I sympathise with your predicament wholeheartedly, but you will need to pay the fees for FLR. Try and encourage your wife to revise for, take and pass the test so she can apply for ILR.

I wish you all the best

Applying for FLR is unadvisable because the OP's wife would not qualify for further leave to remain under the rules (para 284(i) requires that the applicant has current leave, and para 284(iv) requires that the applicant has not remained in breach of the immigration laws) An application for further leave is therefore most likely to result in a grant of discretionary leave which would mean that the OP's wife would have to complete a further 6 year's leave before being able to apply for ILR.

Applying for ILR on the otherhand, does not require that the applicant has current leave. See para 287 (a) (i) (a)
the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom;

An application for ILR therefore has every chance of suceeding under the rules, providing the other requiremens are met.

[Zeeman76]

What happened was we were awaiting what to do from the IAS and the onus shifted to the solicitors who we spoke to once (said they were going to look at the next step instead of the IAS recommendation of restarting the first 2 years) then heard nothing since. I am going to ring them tomorrow to find out whats what and also book the LITUK test..

My wife and her sone both have their passports..

My wifes passport visa says Type MULT SPOUSE/CP - Spouse/CP of (then name of my wife) and under "obsrv" says "no recourse to public funds"

My Step-sons says SETTLEMENT ACCOMPANYING PARENT (then name of step-son) then under "obsrv" says "Indefinite leave to enter UK"

Both Valid until 16/05/11

The "indefinite leave to enter" on my step-sons visa was what we thought meant there was no need to get a change in visa status unless we looked to leave the country again. I thoguht IDLR meant once they were here then they were able to stay. The comment by the original US based lawyer of "enjoy your new life" kind of catalysed this thought. It is what the IAS said was a mistake by the UKBA and would need to be highlighted but then GH Cornish said we would be going for the next one (FLR I believe)..

Hope this helps.

[Zeeman76]

An application for ILR therefore has every chance of suceeding under the rules, providing the other requiremens are met.

What would be the other requirements. I am worried about my employment status as losing my job I have found it hard to find another in the area (norfolk is a wasteland for work at the moment and I am looking for anything, even forcourt attendents and deliveries for ASDA, full time part time ANYTIME etc etc).

What cause further confusion concerning our need to actually do something within the first 2 years was that upon recieving out paperwork for signing the electoral role my wife was given nationality as "British" and she has a NI number and her work (after contacting this solicitors) has said she is ok to carry on working while this all gets sorted out (she works 10 hours a week)


I cant understand how bloody complex it all is.

[Zeeman76]

I sympathise with your predicament wholeheartedly, but you will need to pay the fees for FLR. Try and encourage your wife to revise for, take and pass the test so she can apply for ILR.

We have had the fees available since june, just waiting to find out what route is being taken. I guess in hindsight waiting this long for a response from the solicitors was a mistake but we figured with the IAS going into administration they would have a backlog (and the did infer things were very hectic in immigration aspects because of the IAS administration).

I really appreciate all this advice and kind commentary. Thank you everyone

[Greenie]

What happened was we were awaiting what to do from the IAS and the onus shifted to the solicitors who we spoke to once (said they were going to look at the next step instead of the IAS recommendation of restarting the first 2 years) then heard nothing since. I am going to ring them tomorrow to find out whats what and also book the LITUK test..

My wife and her sone both have their passports..

My wifes passport visa says Type MULT SPOUSAE/CP - Spoise/CP of (then name of my wife) and under "obsrv" says "no recourse to public funds"

My Step-sons says SETTLEMENT ACCOMPANYING PARENT (then name of step-son) then under "obsrv" says "Indefinite leave to enter UK"

Both Valid until 16/05/11

The "indefinite leave to enter" on my step-sons visa was what we thought meant there was no need to get a change in visa status unless we looked to leave the country again. I thoguht IDLR meant once they were here then they were able to stay. The comment by the original US based lawyer of "enjoy your new life" kind of catalysed this thought. It is what the IAS said was a mistake by the UKBA and would need to be highlighted but then GH Cornish said we would be going for the next one (FLR I believe)..

Hope this helps.

GH Cornish are wrong - FLR is pointless - it won't get you further leave to remain under the rules.

Regarding the original grant of leave - what were your circumstances when you applied - had you been married and living together for 4 years outside the UK?

[Zeeman76]

We were married before coming to the UK but not for that long.. Only for about 5 months, though we had been living together as partners in the US for about 2 years (my wife having a miscarriage which was the reason for my overstay in the US and the one of the main reasons we were determined to "get it right" when leaving to have a life here in the UK).

[Zeeman76]

I might have said something wrong. I think that the IAS wanted to go for FLR and GH Cornish have said no, to go for ILR (if thats the more expensive application then I know I am right. If I recall the first option was about £800 and the second was about £1400)

[Greenie]

ILR is the best option. Your step son's grant of ILE was a mistake - he should have been granted the same leave as your wife.

[Zeeman76]

Thanks greenie we were told similar..

LOL if they cant get it right how do they expect everyday people to understand whats going on eh

First port of call is to ring GH Cornish find out whats going on and also book this Life in UK test.. My guess is that as noone has mentioned detention centers and deportation that we need not worry about our family being broken up.. This has been my main concern naturally.

Very VERY much appreciated

[Obie]

Applying for FLR is unadvisable because the OP's wife would not qualify for further leave to remain under the rules (para 284(i) requires that the applicant has current leave, and para 284(iv) requires that the applicant has not remained in breach of the immigration laws) An application for further leave is therefore most likely to result in a grant of discretionary leave which would mean that the OP's wife would have to complete a further 6 year's leave before being able to apply for ILR.

Applying for ILR on the otherhand, does not require that the applicant has current leave. See para 287 (a) (i) (a)
the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom;

An application for ILR therefore has every chance of suceeding under the rules, providing the other requiremens are met.

I believe in either case, the OP's wife will fell foul of the Immigration acts or rules if the ILR or FLR application is made, when her leave to remain has expired. For starters she will not qualify under Section 3c and following Forrester it is clear that the Secretary of state has a discretion to refuse ILR in circumstance where the person leave had expired before applying for ILR, although the decision has to be reasonable and observe the principle of proportionality and reasonableness.

I suggested the OP applying for FLR, because the wife has not passed KOL, and in any event she will not qualify for ILR without it. Rather than her staying without leave, she may as well apply for FLR, in my view.

There is also a mitigating factor which is quite strongly in favour of the OP, due to the chaos with IAS, which was not of the OP's making.

It is not mandatory, but i believe the Secretary of state has a descretion to refuse an ILR application made when the person's spouse visa application has expired. However, this discretion has to take into account the Article 8 rights of the person, and all the circumstances involved.

[Greenie]

I believe in either case, the OP's wife will fell foul of the Immigration acts or rules if the ILR or FLR application is made, when her leave to remain has expired. For starters she will not qualify under Section 3c and following Forrester it is clear that the Secretary of state has a discretion to refuse ILR in circumstance where the person leave had expired before applying for ILR, although the decision has to be reasonable and observe the principle of proportionality and reasonableness.

I suggested the OP applying for FLR, because the wife has not passed KOL, and in any event she will not qualify for ILR without it. Rather than her staying without leave, she may as well apply for FLR, in my view.

There is also a mitigating factor which is quite strongly in favour of the OP, due to the chaos with IAS, which was not of the OP's making.

It is not mandatory, but i believe the Secretary of state has a descretion to refuse an ILR application made when the person's spouse visa application has expired. However, this discretion has to take into account the Article 8 rights of the person, and all the circumstances involved.

She will not fall foul of the rules for ILR for the reasons I have already explained - the rules only require that she was granted leave as a spouse of a settled person and 'has completed' the two year probationary period. Therefore a refusal merely due to the fact that the spouse has overstayed would not be in accordance with the rules.

An application for FLR however would fall for refusal under the rules (although DL would be a likely outcome) because current leave is required.


Forrester really is not relevent to this case - For starters it concerned an application for FLR, and secondly the issue was primarily about the applicant overstaying due to making an invalid application and the subsequent unreasonableness in the UKBA not granting her leave due to her overstay. It is correct that FLR as a spouse can be refused if the applicant has overstayed under the rules, but the applicant's A8 rights should be considered and DL granted if appropriate. The same is not true for an application for ILR under para 287 which simply does not require current leave. There is no discretion that the decision maker would need to exercise - if she meets the rules, she should be granted ILR regardless of the overstay.

If the OP's wife takes and passes the LITUK test there and meets the other requirements for settlement then she should be granted under the rules. If she doesnt meet the rules for some other reason then DL would probably be granted anyway.

The fact that she does not benefit from 3c in either scenario is also not relevent - it only means that she won't get a right of appeal it doesn't have any bearing on the success of the application. An application for ILR has been advised by the solicitors and is a far better option for the OP's wife to make.

I agree she needs to take the LITUK test but given she has already overstayed - overstaying for a few more weeks whilst they get together the evidence and she passes the test will be worth it. IF she applies for FLR she will be stuck with DL and having to take the long route to settlement.

See Settlement rules for spouses

[mochyn]

I believe in either case, the OP's wife will fell foul of the Immigration acts or rules if the ILR or FLR application is made, when her leave to remain has expired. For starters she will not qualify under Section 3c and following Forrester it is clear that the Secretary of state has a discretion to refuse ILR in circumstance where the person leave had expired before applying for ILR, although the decision has to be reasonable and observe the principle of proportionality and reasonableness.

I suggested the OP applying for FLR, because the wife has not passed KOL, and in any event she will not qualify for ILR without it. Rather than her staying without leave, she may as well apply for FLR, in my view.

There is also a mitigating factor which is quite strongly in favour of the OP, due to the chaos with IAS, which was not of the OP's making.

It is not mandatory, but i believe the Secretary of state has a descretion to refuse an ILR application made when the person's spouse visa application has expired. However, this discretion has to take into account the Article 8 rights of the person, and all the circumstances involved.

She will not fall foul of the rules for ILR for the reasons I have already explained - the rules only require that she was granted leave as a spouse of a settled person and 'has completed' the two year probationary period. Therefore a refusal merely due to the fact that the spouse has overstayed would not be in accordance with the rules.

An application for FLR however would fall for refusal under the rules (although DL would be a likely outcome) because current leave is required.


Forrester really is not relevent to this case - For starters it concerned an application for FLR, and secondly the issue was primarily about the applicant overstaying due to making an invalid application and the subsequent unreasonableness in the UKBA not granting her leave due to her overstay. It is correct that FLR as a spouse can be refused if the applicant has overstayed under the rules, but the applicant's A8 rights should be considered and DL granted if appropriate. The same is not true for an application for ILR under para 287 which simply does not require current leave. There is no discretion that the decision maker would need to exercise - if she meets the rules, she should be granted ILR regardless of the overstay.

If the OP's wife takes and passes the LITUK test there and meets the other requirements for settlement then she should be granted under the rules. If she doesnt meet the rules for some other reason then DL would probably be granted anyway.

The fact that she does not benefit from 3c in either scenario is also not relevent - it only means that she won't get a right of appeal it doesn't have any bearing on the success of the application. An application for ILR has been advised by the solicitors and is a far better option for the OP's wife to make.

I agree she needs to take the LITUK test but given she has already overstayed - overstaying for a few more weeks whilst they get together the evidence and she passes the test will be worth it. IF she applies for FLR she will be stuck with DL and having to take the long route to settlement.

See Settlement rules for spouses

Greenie is right. My friend's visa had expired and was told to apply for FLR but with help from contributors here the following advice was given
Pass KOL
Apply for ILR
This she did and ILR was granted without question

[Zeeman76]

Wow all this has left our heads spinning..

Tried contacting solicitors a couple of times but no answer, will try again tomorrow..

Will have the extra money for test as of thursday and will then book the test (50 might not sound much but for us at the moment we are very short of any spare money and want to keep the amount needed for the visa application fees untouched.

Once again thanks to everyone, I think we have just about made sense of things at last. Am really happy people here are compassionate and shown understanding of our situation. Kudos all round