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Confused between FLR or PBS

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Obie
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Re: Confused between FLR or PBS

Post by Obie » Tue Sep 15, 2015 2:04 pm

Also try and get the letter from the Employer, to ascertain what the basis of the proposed curtailment was, and then try to address it.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

mabhang
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Re: Confused between FLR or PBS

Post by mabhang » Tue Sep 15, 2015 2:32 pm

Thank you so much for your help.
I will try all possible emails.

Thanks again.

-Anuja

vinny
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Re: Confused between FLR or PBS

Post by vinny » Wed Sep 16, 2015 9:35 am

Obie wrote:I will like to see the legal basis for their contention that the visa should be curtailed.
Indeed.

It's absurd for a caseworker to assert that husband's previous leave was "curtailed" after being granted ILR.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

mabhang
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Re: Confused between FLR or PBS

Post by mabhang » Wed Sep 16, 2015 1:56 pm

Hi guys ,
I am attaching screenshot of the letter. Please go through it.
Thank you.

- Anuja
Attachments
rps20150916_192243.jpg
Part of letter from Home Office
rps20150916_192243.jpg (66.12 KiB) Viewed 3414 times

vinny
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Re: Confused between FLR or PBS

Post by vinny » Thu Sep 17, 2015 1:48 am

Can you attach the bit above, where the caseworker claimed that your husband's Tier 2 leave was curtailed because he was granted ILR (Indefinite Leave to Remain)?

By definition,
Immigration Rules: Interpretation wrote:curtailment” in relation to the curtailment of a person’s leave to enter or remain in the UK, means curtailing their leave such that they will have a shorter period of, or no, leave remaining.
I believe a person's leave is curtailed iff that person's leave was subject to curtailment under 323-323C.

If they granted your husband ILR, then his Tier 2 leave was not curtailed.  Being granted ILR is completely the opposite of leave curtailed! Claiming that a person's previous leave was curtailed as a result of being granted ILR is absurd and unsupportable under the Immigration Rules.
1(2) wrote:Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).
33 wrote:(2A) Subject to section 8(5) above, references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.
Immigration Rules: Introduction wrote:"settled in the United Kingdom" means that the person concerned:
(a) is free from any restriction on the period for which he may remain save that a person entitled to an exemption under Section 8 of the Immigration Act 1971 (otherwise than as a member of the home forces) is not to be regarded as settled in the United Kingdom except in so far as Section 8(5A) so provides; and
(b) is either:
(i) ordinarily resident in the United Kingdom without having entered or remained in breach of the immigration laws; or
(ii) despite having entered or remained in breach of the immigration laws, has subsequently entered lawfully or has been granted leave to remain and is ordinarily resident.
323 wrote:(vi) if he was granted his current period of leave as the dependent of a person (“P”) and P’s leave to enter or remain is being, or has been, curtailed; or
P's leave was never curtailed. P being granted further or indefinite leave that increases P's existing period of leave directly contradicts with the definition and process of curtailment. So, to say that 323(vi) is applicable is irrational.

Therefore, 323(vi) is not applicable to you.

Moreover, the caseworker's action is also inconsistent with 319C and 319E.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
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mabhang
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Re: Confused between FLR or PBS

Post by mabhang » Thu Sep 17, 2015 3:26 am

Hi I have attached the screenshot of the first part of letter.
There they have said I haven't applied for visa in line with my husband.
Please go through it. Thank you so much for your help.

-Anuja
Attachments
rps20150917_081143 new.jpg
Personal details removed
rps20150917_081143 new.jpg (91.68 KiB) Viewed 3264 times

vinny
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Re: Confused between FLR or PBS

Post by vinny » Thu Sep 17, 2015 10:57 am

It's nonsense.
323 wrote:(ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted; or
Your leave as a PBS dependant under 319C is already in line with your partner who has indefinite leave to remain as a Relevant Points Based System Migrant.

Else, you wouldn't be able to extend after your partner has ILR as a relevant PBS Migrant under 319C, nor subsequently apply for SET(O) under 319E.

319C(b)(iii) and 319C(h) clearly permits you to extend after your partner has ILR as a relevant PBS Migrant. Although possible, there's no requirement in 319C for the PBS partner to extend at the same time when the PBS Migrant applies for ILR as Relevant PBS Migrant.

I think
vinny wrote:Note that if 319D(b) and 319A are still satisfied, then 323(ii) is also not applicable.
Do confirm that 319D(b) is still satisfied.

-----
323 wrote:(vi) if he was granted his current period of leave as the dependent of a person (“P”) and P’s leave to enter or remain is being, or has been, curtailed; or
As explained, your partner's leave (P's leave) was not curtailed. Therefore, 323(vi) is also not applicable.

Proof:

323(vi) is of the form:

"If A and B", where
A = "he was granted his current period of leave as the dependent of a person (“P”)"
B = "P’s leave to enter or remain is being, or has been, curtailed"

Since B is false, then "A and B" is false.

Therefore, "if A and B" is not applicable.
Therefore, 323(vi) is not applicable.

This decision has not been made in line with the Immigration Rules nor Tier 2 policy guidance nor Curtailment instructions.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
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mabhang
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Re: Confused between FLR or PBS

Post by mabhang » Mon Oct 05, 2015 6:08 am

Hello dear,
Since our last conversation we have emailed on almoat every email address we have found of home office.
we have even posted letters to home office, E Clark the person who sent us the letter and Sarah Rapson.
we haven't got a single reply or acknowledgement from anywhere! What do you suggest we should do?

We want to make a complaint to home office regarding misguidance. As before travelling, me and my husband both called the home office and comfirmed that we do not requireto apply for a different visa and that I can travel ooutside the country without any worries! When we received the curtailment letter from home office we were clearly misguided. we have the date and time we called them.
How can we make an effective complaint against them?

vinny
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Re: Confused between FLR or PBS

Post by vinny » Mon Oct 05, 2015 7:14 am

mabhang wrote:We want to make a complaint to home office regarding misguidance. As before travelling, me and my husband both called the home office and comfirmed that we do not requireto apply for a different visa and that I can travel ooutside the country without any worries! When we received the curtailment letter from home office we were clearly misguided. we have the date and time we called them.
How can we make an effective complaint against them?
I think you were correctly informed. It's the curtailment that is in error.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

vinny
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Re: Confused between FLR or PBS

Post by vinny » Mon Oct 05, 2015 7:52 am

Perhaps Jane Richards or Wayne Fairweather or Edwin Thomas may also be knowledgeable people to contact.

Note that their answers contradicts a colleague's, whom I believe was wrong.

In the case of a PBS Migrant holding ILR and the PBS dependant holding limited leave, their expiry of leave will never be at same time. The ILR holder's period of leave is indefinite, while the dependant's period of leave is limited.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

vinny
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Re: Confused between FLR or PBS

Post by vinny » Mon Oct 05, 2015 1:03 pm

It's probably clearer if I give hypothetical examples. It's useful to examine this situation near the boundary conditions, where the PBS Migrant is granted ILR.

Suppose a PBS dependant had leave of less than 3 years remaining, say 2 years, 11 months and 29 days. If s/he was forced to prematurely extend under 319C, in the same category, as permitted, then they would grant leave for 3 years only, under 319D. This gives an effective difference of no more than 2 days for the price of a 3 years extension.

Worst still, suppose a PBS dependant had leave for over 3 years remaining. Applying for an extension under 319C, as permitted, would result in an effective curtailment. So, the PBS dependant would be paying for his/her own curtailment.

Suppose a PBS dependant had leave of exactly 3 years remaining, then what is s/he supposed to do?

There may be a problem if the period of the dependant's leave was longer than that of the Main PBS Migrant. But that's impossible when the PBS Migrant has ILR.

Hence, if 319D(b) is still satisfied, then I believe that this curtailment is neither supportable by the rules nor by the guidance.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

Obie
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Re: Confused between FLR or PBS

Post by Obie » Mon Oct 05, 2015 1:05 pm

Better still a Pre action protocol , may wake up all the parties involved to the reality of the situation.

It seems they are presently asleep , calling the OP bluff.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

vinny
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Re: Confused between FLR or PBS

Post by vinny » Wed Oct 07, 2015 2:31 am

See also JR.

Note that if they don't rescind this unlawful curtailment, then you would have to apply for entry clearance as the spouse of a settled person. Then your qualifying period for SET(M) would be reset.

Then, I think you should also claim for damages and a reinstatement of your rightful leave as a PBS dependant.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
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vinny
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Re: Confused between FLR or PBS

Post by vinny » Wed Oct 07, 2015 5:32 am

A judge once noted:
76 wrote:In my view the same principle applies here. The responsibility in law on the Claimant was to ensure that his conduct was four-square within the rules. The rules were not hidden from him...
In my view, the same principle must also apply to the UKVI's caseworkers.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
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vinny
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Re: Confused between FLR or PBS

Post by vinny » Thu Oct 08, 2015 12:44 am

In addition to Obie's excellent suggestion:

Perhaps you could also ask for a reconsideration. They may not realise that you are outside the UK and fix their mistake.

Also, perhaps make a complaint about how insufficiently trained caseworkers make migrants needlessly suffer. Give your unlawful curtailment as an example. Include the judge's comment, saying that the same principle should also apply to UKVI's caseworkers too. Moreover, the lack of appeal and AR and redress options, apart from JR, may further encourage their poor descision making.

Involve your MP and later, if necessary, the Parliamentary Ombudsman.

This is to give the UKVI every opportunity to correct their mistake, to mitigate your loses and damage claims against them.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

mabhang
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Re: Confused between FLR or PBS

Post by mabhang » Sat Oct 24, 2015 1:55 pm

Hello all,
We want to thank you all so much for the suggestions and support throughout!
I want to give an update of the situation. I am still in india, and we have been trying to get in touch with the home office (specially the curtailment department) through letters, emails and calls;but its all been useless.
Firstly we haven't yet heard back from home office. They reply within 20 days is what I have heard but its been more than 20 days now!
We also emailed our area MP and my husband visited her office. After they confirmed the receipt of our email they assured us that they would get back to us within 48 hours but its been 5 days now! When my husband visited the office again, they said "we are not solicitors that you keep asking us again and again."
So we are not expecting much from the MP now!

Moreover when we talked to a few solicitors (3) they ALL suggested that we should apply for the visa and that we should have applied earlier to avoid this situation!

We are so damn confused and are thinking about applying for the visa now because we have only till nov 15 (that's when my visa ends).

If the home office thinks this is the right decision, then I want to file complaint against the customer service attendant who told us otherwise or I want to file complaint against case worker who took this wrong decision!

What do you suggest?

Can I apply for FLR from India or have to go back to UK to apply from within?

Is their any other way I can get in touch with the home office?

Please suggest feels really helpless when home office doesn't get back/reply!!!

Thank you all...

Obie
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Re: Confused between FLR or PBS

Post by Obie » Sat Oct 24, 2015 1:59 pm

Well myself and Vinny have advised what you should do.

These solicitors are not updating themselves and simply good at form filling exercise.

They are talking rubbish.

You should have filed a PAP.
After thinking long and hard, I have come to the conclusion that brexit is a cancer. The only good brexit is a dead brexit.

vinny
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Re: Confused between FLR or PBS

Post by vinny » Sat Oct 24, 2015 2:46 pm

mabhang wrote:Can I apply for FLR from India or have to go back to UK to apply from within?
vinny wrote:See also JR.

Note that if they don't rescind this unlawful curtailment, then you would have to apply for entry clearance as the spouse of a settled person. Then your qualifying period for SET(M) would be reset.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

vinny
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Re: Confused between FLR or PBS

Post by vinny » Sat Oct 24, 2015 2:54 pm

Do also read Jane Richards' and Wayne Fairweather's and Edwin Thomas's responses.

These are applicable here too.

They give logical reasons why your curtailment is unjustifiable.

It's also alarming to see caseworkers mistake a grant of further or indefinite leave to the PBS Migrant as a sign that the PBS Migrant's leave had been curtailed! It's contrary to the basic definition of curtailment.

Caseworkers should be better trained.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

mabhang
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Re: Confused between FLR or PBS

Post by mabhang » Sun Oct 25, 2015 4:00 pm

Hi Vinny and Obie,
Thank you guys for replies.
We were actually waiting for the matter to be solved automatically by home office but no reply from them yet makes me think about PAP and JR now!

Do you know any good lawyers/solicitors in London who would help us file PAP?

Thanks.

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