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ILR refused - help needed

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

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manojult
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ILR refused - help needed

Post by manojult » Thu Mar 14, 2013 10:47 pm

I applied for ILR with my wife. My ILR has been approved. My wife's has been rejected. I would like to know if there is a point in appealing
My wife had a PSW visa when I married her. So, she joined me on 8-May-2010. When the PSW visa was about to expire, she applied for a dependant visa and re-entered UK on 22 Jan 2012.

ILR application date : 12-Aug-2012
ILR refused : 12-Mar-2013
Appeal date : 28-Mar-2013
Date of marraige : 23-April 2010
Cohabitation proof in UK since : 8-May-2010
Wife's visa status
PSW till 22-Jan-2012
Tier 1 dependant till 27-Aug-2012.

Reason for refusal: "As stated above you entered UK on 22 Jan 2012 with entry clearance as a Tier 1 HS partner of M J Pariyadan which expired on 27 Aug 2012. Therefore you have not completed two years in the UK as a partner of a Tier 1 HS General migrant and you are unable to meet the requirements of paragraph 319 E (d)(i)(b)"
(d)(i)(b) states
(d)The applicant and the relevant points based system migrant must have been living together in the UK in a marriage or civil partnership for a period of atleast
(i) If the applicant was granted leave as
(b)the spouse or civil partner, unmarried or same gender partner of that person at a time when that person had leave under another category of rules
under the rules in place before 9 July 2012, and since then has had continuous leave as the partner of the relevant points based system migrant, the specified period is 2 years.
I talked to three lawyers...two think that UKBA is wrong and one agrees with them. I am confused on whether I should appeal or apply under FLR (Is this possible?)

The way I read it "The applicant and the relevant points based system migrant must have been living together in the UK in a marriage or civil partnership for a period of atleast 2 years"
no where does it say that she has to be on dependant visa for two years

ban.s
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Post by ban.s » Thu Mar 14, 2013 11:19 pm

That's surprising. UKBA cited 319E(d)(i)(b) and then didn't apply that correctly.

see below the posts from Indran. This chap was advised incorrectly by UKBA 7 times but he got dependants ILR approved on basis on 319E(d)(i)(b)

http://www.immigrationboards.com/viewto ... sc&start=0

http://www.immigrationboards.com/viewto ... sc&start=0

manojult
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Post by manojult » Fri Mar 15, 2013 1:18 pm

Thanks for the reply. I called up UKBA. The said that I should not have applied for ILR dependant. I read up the 319 E dib, yet see no requirement for spouse to be on dependant visa for two years.
But even solicitors I talk to are not sure. each one has a different opinion.
I guess I will appeal anyway.
Does anyone have any case reference number that I can site.
ban.s - do you have any feedback from UKBA?

zulfiqar.malik
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Post by zulfiqar.malik » Tue Mar 19, 2013 5:21 pm

Hi Manoj,

Yes our application was accepted. I don't have the case number with me right now but will email it to you once I am home. What is your situation? Section 319E does state that your dependent has to be living in the UK with you for at least two years. In my case, time wasn't an issue because my wife had been here for more than 5 years when we applied. The issue was the mix of dependent visa status.

I talked to quite a few lawyers (some very expensive ones provided by my employer) and everyone told me that I was in a very gray area of the law and there weren't any rules specific to my situation and depending on the case worker my case could get accepted or rejected. The case work went smoothly and there were absolutely no issues regarding this.

zulfiqar.malik
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Post by zulfiqar.malik » Tue Mar 19, 2013 5:23 pm

Sorry just read your case; initially I thought that you replied to my thread. I think your wife's visa has been rejected correctly. 319E states that the dependent has to be on a dependent visa for at least 2 years.

zulfiqar.malik
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Post by zulfiqar.malik » Tue Mar 19, 2013 5:27 pm

The way I understand this is that your wife was on PSW but still living with you till Jan 2012 (not as a Tier1 dependent) and then she was changed to a Tier 1 dependent under which she remained for 6 months or so. She needs to have lived on a dependent visa for at least 2 years as the relevant applicable clause of 319 E clearly states.

ban.s
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Post by ban.s » Tue Mar 19, 2013 10:42 pm

zulfiqar.malik wrote:Sorry just read your case; initially I thought that you replied to my thread. I think your wife's visa has been rejected correctly. 319E states that the dependent has to be on a dependent visa for at least 2 years.
That's not correct. 319E(d)i(b) doesn't require the the applicant to be on a dependant status for 2 years.

ban.s
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Post by ban.s » Tue Mar 19, 2013 10:49 pm

manojult wrote:Thanks for the reply. I called up UKBA. The said that I should not have applied for ILR dependant. I read up the 319 E dib, yet see no requirement for spouse to be on dependant visa for two years.
But even solicitors I talk to are not sure. each one has a different opinion.
I guess I will appeal anyway.
Does anyone have any case reference number that I can site.
ban.s - do you have any feedback from UKBA?
There is no case reference. You need to point out to UKBA 319E(d)i(b) was not correctly applied in your case.

indran
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Post by indran » Wed Mar 20, 2013 3:31 am

Hi,

Also check out the link below where many of us got ILR being in similar as you are .

http://www.immigrationboards.com/viewto ... c&start=40



You should definitely appeal. Your wife's application should fall under the previous rule. See the template below which explains well.



Regards
Indran


I found this template letter is this forum, which would be very useful for your appeal.

Sub: ILR eligibility for my wife, (XXX), under rules before 9th July 2012

Dear Sir/Madam,

My wife, (XXX), was granted leave as Highly Skilled Migrant Programme holder on XXX, with entry date on XXX. Subsequently she extended her leave to remain under Tier 1 (General) which was approved with validity till XXX. She switched as Tier 1 PBS dependent on XXX before the rule change in 9th July 2012. This decision was taken after looking at the rules pre 9th July 201) for ILR eligibility (319(E)) for Tier 1 General PBS migrants and their dependents. The following 2 eligibility criteria were stated under 319 (E) prior to 9th of July 2012: (c) The applicant must have, or have last been granted, leave as the Partner of the Relevant Points Based System Migrant who is being granted indefinite leave to remain. (d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for a period of at least 2 years. Source: National web archive snapshot taken on 8th April 2012 (Attached) URL:http://webarchive.nationalarchives.gov. ... 1migrants/ As per the rules in place before 9th of July 2012, there was no requirement for my wife to be my dependent for the entire 2-year cohabitation period. The requirement was, she must have been last granted leave as my partner 319E(c) and we must have been living together in the UK in a marriage for a period of at least 2 years 319E(d). In our case, we meet both these criteria along with all others under 319E rule. I appreciate, the rules were changed on 9th of July 2012 and any application after 9th of July was to be treated under the new rules. As my wife was granted leave as my partner on XXX, I believe that the eligibility rules (pre 9th July 2012) mentioned above apply to her as per the transitional arrangements put in place by UKBA (http://ukba.homeoffice.gov.uk/siteconte ... am-mig.pdf; Page 8, 69 and among others). I hope the above information along with documentation will be sufficient to make a favourable decision and allow my wife and son to apply for ILR along with me. If needed, I will be more than happy to discuss or clarify any particular aspect of the application.

Thanking you in anticipation.

Yours sincerely XXX

zulfiqar.malik
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Post by zulfiqar.malik » Wed Mar 20, 2013 2:12 pm

I will reiterate the relevant 319 E (d)(i)(b) clause:
the spouse or civil partner, unmarried or same gender partner of that person at a time when that person had leave under another category of rules
under the rules in place before 9 July 2012, and since then has had continuous leave as the partner of the relevant points based system migrant, the specified period is 2 years.
It explicitly states that you must have been the partner of a person under any category of the rules before 9th July, 2012 must have lived together for 2 years.

His wife was on Post Study Work visa which is NOT a dependent/partner visa to begin with. She then shifted to a dependent visa as the partner of Manoj for and was on it for 6 months. This is a clear violation of the said rule.

manojult
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Post by manojult » Wed Mar 20, 2013 2:36 pm

Hi zulfiqar,
It explicitly states that you must have been the partner of a person under any category of the rules before 9th July, 2012 must have lived together for 2 years. This is independent of the visa type.

It does not state that you must have "been granted leave as" partner of a person under that category.

319 E c) states that you should have or last been granted leave as the dependant of the PBS migrant(no reference to the time)

What is confusing me is that of the eight solicitors I talk to, 6 of them say that there is no merit in my case and an appeal is just a waste of money.

I can see people like indran who had a similar situation be granted a ILR dependant and this has increased my confidence.

One of the solicitors said that the rules written down are not necessarily the rules followed, but that decisions are based on precendent(previous court cases). I have asked if there is a reference to such cases. He said he will get back.
I cannot see how this rule can be interpreted as that you need the dependant visa for two years.

So I am still unable to make a decision. The issue is that either I have to appeal or apply for a fresh dependant visa. It seems I cannot do both.

Thanks a lot for all the members support. I am trying to get a sure answer from the solicitors. I feel that UKBA is taking laymen for granted.

indran
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Post by indran » Wed Mar 20, 2013 3:05 pm

Appeal in court, I'm sure UKBA won't even waste money sending their lawyer since they know they will lose the case. Always trust this forum and use as guidance since it based on past experience. Read the archieve rule in the letter above which gives clear requirement on the 319(E). New rule is vague but doesn't apply to your case.

zulfiqar.malik
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Post by zulfiqar.malik » Wed Mar 20, 2013 3:47 pm

Hi Manoj,

Firstly I think you should appeal because its generally a good bet and you have been given a chance for an appeal.

Coming back to the point here is 319E (d) which I quote verbatim from the official website below:
(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):
(i) If the applicant was granted leave as:
(a) the Partner of that Relevant Points Based System Migrant, or
(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years
I have highlighted partner because the partner applying for ILR as a dependent alongside the main applicant must been living on a partner visa for 2 years whether you (the main applicant) were on Tier 1 or any other visa.

Coming back to your wife's case. She was on a PSW visa and was NOT in the UK on a partner visa. She then transferred to a partner visa and stayed on it for 6 months which does not fulfill the requirements.

Also have a look at the guidance sections which give an example about a spouse ALSO on a Tier 1 (General) visa status. Even in such a case the spouse's visa will be rejected if they apply for ILR as a dependent on the main application simply because they are not on a dependent visa.

I have talked in length to many lawyers about this exact clause and while there are gray areas, everyone agrees that if you are applying as a dependent you must have lived on a dependent visa for 2 years. They have changed it to 5 years now which I think is ridiculous but that is besides the point that I'm trying to make here.

Please do keep us updated. I think this is an interesting case to have in the forum logs.

zulfiqar.malik
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Post by zulfiqar.malik » Wed Mar 20, 2013 3:51 pm

Why aren't you able to apply for a fresh dependent visa? If the rejection of this appeal can result in your wife staying in the UK illegally then I suggest that you should avoid such a scenario at all costs. Illegal stay will not go down well once she is even in a definitive position to apply.

Also, the lawyer is correct in that the laws are there for guidance and interpretation can sometimes differ from case to case.

vinny
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Post by vinny » Wed Mar 20, 2013 10:29 pm

zulfiqar.malik wrote:I have talked in length to many lawyers about this exact clause and while there are gray areas, everyone agrees that if you are applying as a dependent you must have lived on a dependent visa for 2 years. They have changed it to 5 years now which I think is ridiculous but that is besides the point that I'm trying to make here.
They have made changes to 319E(d). Previously,
319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for a period of at least 2 years.
It was clear that it was not necessary for the applicant to be a dependant during the entire two year period.

However, currently:
319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years
Perhaps it's not so clear.

It may be clearer if we examine the construction of 319E(d)(i). First note that it's unnecessary to satisfy 319E(d)(i)(b) if 319E(d)(i)(a) is satisfied, because of the "or". If we completely ignore 319E(d)(i)(b):
319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant,

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years
The last part just defines what the specified period is, and that the applicant must be the Partner of that Relevant Points based System Migrant continuously, since having been granted leave as the partner. However, the first part only specifies marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the specified period.

Substituting in the specified period, we get:
319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least 2 years:

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant,

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant
manojult wrote:When the PSW visa was about to expire, she applied for a dependant visa and re-entered UK on 22 Jan 2012.
manojult wrote:Reason for refusal: "As stated above you entered UK on 22 Jan 2012 with entry clearance as a Tier 1 HS partner of M J Pariyadan which expired on 27 Aug 2012. Therefore you have not completed two years in the UK as a partner of a Tier 1 HS General migrant and you are unable to meet the requirements of paragraph 319 E (d)(i)(b)"
319E(d)(i)(a) is satisfied if she was granted leave as the Partner of that Relevant Points Based System Migrant prior to 22 Jan 2012 (that is prior to 9 July 2012), and since then has had continuous leave as the Partner of that Relevant Points based System Migrant.

Moreover, note the difference between 319E(d)[(i) and (ii)].
319E(d) wrote:(ii) If (i) does not apply, the specified period is 5 years, during which the applicant must:

(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,

(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e), and

(c) have spent the remainder of the 5 year period, where applicable, as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules.
There appears to be no equivalent of 319E(d)(ii)(c) in 319E(d)(i). So, IMHO, dependant status may not be necessary for the entire specified period referred to in 319E(d)(i).

Do appeal. It would be interesting to see what a judge makes of all of this.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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manojult
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Post by manojult » Thu Mar 21, 2013 9:37 am

Key Date Summary

Date of marriage15-April-2010
Cohabitation start 8-May-2010
ReEntry with dependant visa 22-January-2012
ILR application 12-August-2012
Visa expiry 27-August-2012

The rule in 319 E (d) (i) which is the ONLY stated ground for refusal in the UKBA letter is listed below.

The text that applies to the applicant is highlighted in yellow.

(d) The applicant and the Relevant Points Based System Migrant must have been living together in the

UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at

least the period specified in (i)
or (ii):

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of

that person at a time when that person had leave under another

category of these Rules

under the Rules in place before 9 July 2012, and since then has

had continuous leave as the Partner of that Relevant Points based

System Migrant, the specified period is 2 years


The UKBA has identified the section as (d)(i)(b). This contradicts with the reason of
refusal which states

“As stated above you entered the UK on 22 January 2012 with entry clearance as Tier 1 HS
Gerneral partner of MJ Pariyadan”

So the relevant section is (d)(i)(a).
Either way,
319 E (d) states that the applicant has to be living together with the PBS migrant in
the UK in marriage or partnership for two years.

319 E (d) does not state that the applicant has to be in the UK as the partner of PBS
migrant with leave to remain as the partner of PBS migrant for a period of 2 years.

Summary of the conditions in (d)(i)

1, The applicant and the Relevant Points Based System Migrant must have been living
together in the UK in a marriage or civil partnership, or in a relationship similar to marriage for
at least the period specified(this period works out to two years from the rule in (d)(i)).

The UKBA states the requirement for which the applicant has to be the partner of the
PBS migrant is two years in the refusal.

“Therefore you have not completed two years as partner of a Tier 1 HS general migrant “

This is satisfied as she has been living in the UK with the PBS migrant Manoj James
Pariyadan since May 8th 2010. As proof of cohabitation 19 documents
(The guidance asks for 6 only) from varying agencies has been provided. As a proof
of marriage, I have provided marriage certificate (The ILR process does not ask for
it).
The definition of the term marriage (or partner) does not require that applicant has to
be on granted leave as the partner of the applicant.

The UKBA has not questioned the documents or the span of the period covering the
documents.

2. If the applicant was granted leave as: (a) or (b) under the Rules in place before 9 July
2012, and since then has had continuous leave as the Partner of that Relevant Points based
System Migrant

This is satisfied in UKBA’s own words (at the point of visa application 12th August
2012. Acknowledgement letter dated 17th August 2012)

As stated above you entered the UK on 22 January 2012 with entry clearance as Tier 1 HS Gerneral
partner of MJ Pariyadan, which expired on 27th August 2012

Since both the conditions are satisfied, the application conforms with the rule in 319 E
which is stated as the ONLY reason of refusal.

manojult
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Post by manojult » Thu Mar 21, 2013 9:45 am

That was the draft of the appeal letter I have prepared so far. Please point out anything that confuses anyone.
I have been going round asking people to read the rule and interpret it without me specifying my case. So far, most people interpret it the way most of us do. The only thing is most solicitors do not agree.
I wanted a solicitor to do this as the UKBA has not considered my case properly.
Also I am a bit concerned if there is some precedent. But then, if there is a precedent, shouldnt the UKBA have raised it in the refusal letter. It hasnt.
The reasons I do not want to apply for dependant visa are
1. It is not clear if my wife has to make an application from India
2. Dependant visa rules are always changing.
3. Her employment comes at the mercy of the employer if the visa continuity breaks
4. It is not clear to me if my UK born son's UK citizenship has to be differed till both parents are settled(He was born before I applied ILR).

vinny
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Post by vinny » Thu Mar 21, 2013 6:00 pm

See also Any good law firm recommendation?

It's very important to appeal within the 10 working days time limit. Don't be late!
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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manojult
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Post by manojult » Fri Mar 22, 2013 2:30 pm

Her company solicitor has turned round and said there is ground for appeal. So I do not have much option. If I go by them, I have followed their advice and her job should stay(no legal requirement) even if she has to go back to India.
http://www.garthcoates.com/
I am not certain of his competance. I intend to provide material to him based on the discussion here
vinny - the previous version of the 319 E (d) is quite interesting. I would like to quote it in my reply. Where could I find the old version of Part 8(before HC 194).
Could someone mail it to manojult@gmail.com if you have a copy

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Post by vinny » Sat Mar 23, 2013 6:30 am

vinny wrote:Previously,
319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for a period of at least 2 years.
Click on links.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given 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.

ban.s
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Post by ban.s » Sat Mar 23, 2013 11:00 am

manojult wrote: 4. It is not clear to me if my UK born son's UK citizenship has to be differed till both parents are settled(He was born before I applied ILR).
You can apply for his registration as per section 1(3). The requirement is settled status or BC for only one parents, either father or mother.

vinny
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Post by vinny » Sun Mar 24, 2013 12:35 am

Previously,
319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for a period of at least 2 years.
Currently,
319E wrote:(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, the specified period is 2 years

(ii) If (i) does not apply, the specified period is 5 years, during which the applicant must:

(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,

(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e), and

(c) have spent the remainder of the 5 year period, where applicable, with leave as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules.

(d) not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:

(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.
When writing "if A, B", there is an implicit "then" after the comma. Explicitly, it may be written as "if A, then B".

Putting in the missing "then" may make it clearer.
(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the period specified in (i) or (ii):

(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, then the specified period is 2 years

(ii) If (i) does not apply, then the specified period is 5 years, during which the applicant must:

(a) have been in a relationship with the same Relevant Points Based System Migrant for this entire period,

(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e), and

(c) have spent the remainder of the 5 year period, where applicable, with leave as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules.

(d) not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:

(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.
Now let's see what (i) explicitly says.
(i) If the applicant was granted leave as:

(a) the Partner of that Relevant Points Based System Migrant, or

(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules

under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant, then the specified period is 2 years
I think this is of the form: "If (A or B) and C, then D."
This is equivalent to "If A and C, then D" or "If B and C, then D".
Where:

A = "the applicant was granted leave as the Partner of that Relevant Points Based System Migrant under the Rules in place before 9 July 2012".

B = "the applicant was granted leave as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules under the Rules in place before 9 July 2012".

C = "since then has had continuous leave as the Partner of that Relevant Points based System Migrant".

D = "the specified period is 2 years".

Note that (A or B) just means that the applicant was granted leave as the (PBS or non-PBS) partner prior to 9 July 2012.

Note that the "since then" in C may refer to a time on or after 9 July 2012. Otherwise, (B and C) is false or B is redundant.

Note that C implies that the applicant must have leave as the PBS partner at the time of the application.

(ii)[(b) and (c)] requires that the applicant must be have been granted leave as the partner during the entire specified period of 5 years.

If there was a requirement in (i) that the applicant must have been granted leave as the partner for the entire specified period of 2 years, then (i) would have been written in the similar way as (ii), with only the specified period being different.

Therefore, I believe 319E(d)(i) still does not require the applicant to have leave as the partner during the entire specified period of 2 years.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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indran
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Post by indran » Tue Mar 26, 2013 2:42 pm

Manojult,

You should be following the previous rule (archieved) that Vinny pointed out. Not sure why Vinny is analysing the current 319E rule for your case since it doesnt apply to your wife as she had her dependent visa before the rule change. Her case should fall in the transitional arrangements put in place by UKBA (http://ukba.homeoffice.gov.uk/sitecontent/documents/news/soi-fam-mig.pdf; Page 8, 69 and among others)

You should stick to the previous rule for your appeal. If you talk about the current rule, you may lose the case since the current rule is vague and can be interpreted both ways.
manojult wrote: vinny - the previous version of the 319 E (d) is quite interesting. I would like to quote it in my reply. Where could I find the old version of Part 8(before HC 194).
Could someone mail it to manojult@gmail.com if you have a copy

vinny
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Post by vinny » Tue Mar 26, 2013 10:21 pm

indran wrote:Not sure why Vinny is analysing the current 319E rule for your case since it doesnt apply to your wife as she had her dependent visa before the rule change. Her case should fall in the transitional arrangements put in place by UKBA (http://ukba.homeoffice.gov.uk/siteconte ... am-mig.pdf; Page 8, 69 and among others)
The analysis confirms that the current rule (319E(d)) is the same as the rule in place prior to 9 July 2012, when the transitional provisions are met.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given 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.

manojult
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Post by manojult » Thu Mar 28, 2013 3:06 pm

Thanks a lot for the help. Finally submitted an appeal yesterday via the company solicitors. They have submitted IAFT-1 only. No evidence or supporting documents. They said they will be doing that closer to the appeal date. I have in the mean-time passed on the Statement of intent, rules in place before 9th July 2012, UKBA's explanation http://www.ukba.homeoffice.gov.uk/visas ... ependants/
and the interpretation of the current 319 E (d) (i) rule similar to what vinny had put up.

Seems odd that they havent updated
http://www.ukba.homeoffice.gov.uk/visas ... ependants/
after 9th July 2012. This is misleading.

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