Why Discretionary Leave instead of spouse visa ? help!

[gracewu]

Dear all,

My husband's visa was going to expire on 16th July 2010 while my application for indefinite leave to remain was still under progress. I called the Home Office and was told to use the Form FLR (O) to extend my husband's visa together with a covering letter explain the situation. (I asked the Home Office that whether I can use Form FLR (M) and was told that as I haven't been granted indefinite leave to remain, the form FLR (M) was not appropriate for my husband.)

My husband then made the application to extend his visa using Form FLR (O) in July 2010.and was asked to provide more evidence to support that he had been living with me since he came to the U.K. on 13th August 2010.He then provided the evidence as requested. Before he sent the evidence, I was granted indefinite leave to remain on 6th August 2010.

However, on 6th September 2010, he received his passport back with a 3-years Discretionary Leave visa. The home office letter states that although he does not qualify for leave to remain in the UK , he has been granted limited leave to remain in the United Kingdom in accordance with the principles set out in the Home Office Policy Instruction on Discretionary Leave.

I do not understand why he has been granted a discretionary leave as when he came to the U.K holding a spouse visa and what does that mean that he does not qualify for leave to remain in the UK. I then called the Home office, and was told to contact the case worker. thus, I have sent all my passports and documents back the the case worker and requested her to reconsider my application and grant my husband a spouse visa on 6th September 2010.

I got a reply yesterday from another case worker. the content of the letter is as followings:


Thank you for you letter received on 23 sep 2010 requesting a reconsideration of the decision to refuse your application.

The matters you have raised will be duly considered but it should be noted that a reconsideration is only appropriate if you are able to show that we have made an error of law or fact, based on the evidence which was submitted at the time the decision was made. If you are submitting fresh evidence to support your case, then it may be appropriate to submit a fresh application or an appeal if the decision attracts a full right of appeal. No removal action will be pursued until your request has been dealt with however please note that this does not affect your current immigration status. Your are reminded that you are in the UK Unlawfully with no conditions of stay and you are not permitted to engage in employment or access public funds.





I don't know what to do now. Firstly, my husband didn't request the reconsideration of the decision to refuse his application. we requested a reconsideration to grant him a spouse visa instead of discrtionary visa.

Secondly, what does that mean of the last sentence? why my husband are not permitted to engage in employment? he was holding a spouse visa which allowed him to work, even the discretionary visa allows him to work. I am so worried now as my husband now is working and the home office have his employment details. Can he work now? My baby girl was just borned and he needs to work to support us.


What shall I do now? Please help!!!!

Shall I write them a letter asking the document back and make a fresh applcation using the form FLR (M) & pay another £475.00 or still arguing that a spouse visa should have been granted because my husband's case was decided on 1st september 2010 and my indefinite leave to remain was granted on 6th August 2010 and the home office records should have showned that.


Please help!

[vinny]

As you had applied for ILR under Long residence, it's a pity that the person that you spoke to wasn't following their own written guidelines.

A FLR(O) application was inappropriate because if you were refused, then FLR(O) would fail. If you were granted ILR, then FLR(M) would be appropriate, assuming that 284 was satisfied.

However, if your husband had (mistakenly) made a valid FLR(O) application (before his leave had expired), then he could have been further advised to vary it to FLR(M) after you were granted ILR.

[vinny]

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-gender 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]

Do you have proof that they wrongly advised him to apply for FLR(O) instead of FLR(M)?