POST FLIGHT SPOUSE CP & SET (M)

Hey

long story short, my wife came to the UK using post flight spouse visa back in 2017 - I have refugee LTR. she was given 2.5 hrs visa (weirdly enough as according to the HO website, should've been given 5 years - but that's not the problem)

https://www.gov.uk/government/publicati ... nion-set10

After the initial visa period, we applied to extend to complete 5 years route, nothing is listed to show that Post flight is a route in its own and no guidance on how to extend - again according to HO it should've been 5 years to begin with.
The only applicable option was to extend using FLR (M) which was granted for additional 30 months.

Now seeing another person with a similar route, when applying to set (M) - after 5 years period - he got a response from HO that his application would be rejected because looking at his immigration history, no time was spent under that route - referring to set M. and that he should withdraw and apply under the relevant application!!

This brings a complete confusion:
1- as if the two visas are separate routes? However if yes, how would one apply to extend POST FLIGHT? and why was it granted for 2.5 yrs in the first place opposed to 5 yrs (and similar to FLR(M)) if there is no specific route to extend.
2- when applying for extension using FLR (M) no feedback from HO that this would be a different route to previous visa
3- if the assumption is wrong, do you know which route to use? and in that case we would need to apply for a new visa or the continuous period already broken and a new 5 yrs must be completed before using the SET-M again?


I really hope to hear your thoughts on this, as obviously we would be wasting time if the two are not compatible and cant be considered as 5-year route continuous spouse residence i.e. route to settlement.

The link you posted covers the old rules that are only relevant to the applicants who applied before 9 July 2012. Those are covered under Paragraph 319L - 319T of Part 8 of the Immigration Rules and they are NOT relevant to your wife's visa. For applicants who applied on or after 9 July 2012 (like your spouse), the new rules covered under Appendix FM apply. You have not paid attention while reading the page you linked as this is very clearly explained on the top.

You can see in the Immigration Rules Appendix FM - Family life with a partner that your wife was granted entry clearance under paragraph D-LTRP.1.1 as a partner for an initial visa period not exceeding 33 months. The extension using FLR(M) was the correct application to get another extra 30 months of leave to remain under D-LTRP.1.1. and she will be eligible for ILR after completing 5 years.

Section E-ECP: Eligibility for entry clearance as a partner
E-ECP.1.1. To meet the eligibility requirements for entry clearance as a partner all of the requirements in paragraphs E-ECP.2.1. to 4.2. must be met.

Relationship requirements
E-ECP.2.1. The applicant’s partner must be-

(a) a British Citizen in the UK, subject to paragraph GEN.1.3.(c); or
(b) present and settled in the UK, subject to paragraph GEN.1.3.(b); or
(c) in the UK with refugee leave or with humanitarian protection; or
(d) in the UK with limited leave under Appendix EU, in accordance with paragraph GEN 1.3.(d); or
(e) in the UK with limited leave as a worker or business person under Appendix ECAA Extension of Stay, in accordance with paragraph GEN.1.3.(e).
.
.
.
Section D-ECP: Decision on application for entry clearance as a partner
D-ECP.1.1. Except where paragraph GEN.3.1.(2) or GEN.3.2.(3) of this Appendix applies, an applicant who meets the requirements for entry clearance as a partner (other than as a fiancé(e) or proposed civil partner) will be granted entry clearance for an initial period not exceeding 33 months, and subject to a condition of no recourse to public funds, and they will be eligible to apply for settlement after a continuous period of at least 60 months in the UK with leave to enter granted on the basis of such entry clearance or with limited leave to remain as a partner granted under paragraph D-LTRP.1.1. (excluding in all cases any period of leave to enter or limited leave to remain as a fiancé(e) or proposed civil partner); or, where the applicant is a fiancé(e) or proposed civil partner, the applicant will be granted entry clearance for a period not exceeding 6 months, and subject to a prohibition on employment and a condition of no recourse to public funds.

Thanks for this ZImba. True POST flight link refers to appendix FM, which takes us back to spouse/partner leave to remain.

however my friend applied under the same visa and got 5 years straight (not sure why)
then when applied for SET (M) ILR got the following response from home office:

"Thank you for your recent application to settle in the UK as the partner of a Settled person. Your application has been made using a SET(M) application form for Indefinite Leave to Remain, which is considered according to the criteria laid down in Appendix FM of the Immigration rules.
However, we note from your immigration history that you have not completed any time on Appendix FM route.
Immigration History: -
On 09 December 2015 you made an application for entry clearance as POST FLIGHT SPOUSE/CP of XXX, and you were granted leave to enter which was valid from 04 January 2016 until 04 April 2021.
You entered UK on 30 January 2016.
Then on 02 April 2021 you applied as Spouse of Settled Person for Indefinite Leave to Remain under Appendix FM 5-year route.
From a review of your immigration history it would appear that you have not completed any time on our route to settlement, as such were your application to proceed it is highly unlikely that it would succeed and result in a grant of Indefinite Leave to Remain. Accordingly, we would like to give you the opportunity to review your application. If after you have reviewed your application, you would like us to reject it to allow you to submit a further application on the correct route please advise us as soon as possible.
If you advise us that you have decided to withdraw the application, we will refund the application fee, a minus rejection administration fee of £25 per applicant.
To maintain your current immigration status please lodge a new application under the correct route as soon as practical.
If you choose not to have your Set(M) application rejected or do not reply within 7 days of the date of this email, your application will then be considered using the criteria laid down in Appendix FM."


am I missing something here or the response seems wrong?

You claimed originally that she applied for such visa in 2017. The UKVI message you posted suggests it was 2016 and granted for 5 years. Which date is correct ??? The Post-flight spouses are subject to the same rules as a spouse of a settled person in the UK under Appendix FM.

Post-flight spouse or partner
If an individual becomes the spouse/partner/fiancé/fiancée of a person with refugee
leave or humanitarian protection in the UK after they have been given that leave, it is
open to them to apply for leave to remain or entry clearance, along with the required
fee, on the basis of this relationship. The onus is on the applicant to meet the
requirements of the Immigration Rules.

Where the applicant is already in the UK they must submit an application to the
Home Office, to be considered under ECHR Article 8 using an FLR(FP) form
(Further Leave to Remain (Family and Private Life)).

Where the applicant is overseas they must apply for entry clearance as a
spouse/partner/fiancé/fiancée of a person with refugee leave or someone with
humanitarian protection leave partner

https://assets.publishing.service.gov.u ... 5.0ext.pdf

FYI There is a difference between post-flight and pre-flight spouse routes. Did your friend apply under post-flight route ?

So to clarify we have two similar cases here:
1- my friend's wife applied on 2015 and got 5 years (post flight - can't apply as pre-flight as relationship was formed after refugee status was granted)- confirmed by the message from HO - his wife's case is similar to my wife (post flight) but he didn't need to extend using FLR(M) as it was granted for 5 years straight (odd! would've been acceptable if it was pre-flight but then it's not), after 5 years of continuous residence 2016-2021, he applied for her ILR using SET (M) and got the response I posted above. which made things confusing for me as
2- my wife's case is similar visa granted in 2017 but we had to extend using FLR(M) in 2020 as the post flight was only granted for 2.5 yrs. she will be in the same position when we apply for ILR next year and I'm at a total loss as to how to understand HO message and correlate to our case.

The reply from HO means there is another route to apply for ILR for POST flight, which brings back my question since it's under appendix FM. it should be considered under SET (M) and that response from HO is nonsense.

You are creating confusion by discussing two cases and acting as if they are both the same. That is your assumption BUT your spouse might have been granted under a different route. I suggest keeping the focus here on your spouse's case so that we find the course of action that is appropriate.

Your friend's wife visa was very likely granted under the refugee or humanitarian protection route and so she should have applied to settle using form SET(P) and NOT SET(M). So UKVI may be correct in her case as she has spent no time under Appendix FM rules

https://visas-immigration.service.gov.uk/product/set-p

As far as I know, it's not possible to apply under article 8 (ECHR ruling) from outside the UK. it's only available for people to apply inside the UK. My friend wife's had an entry clearance from outside the UK and confirmed by HO letter ("You entered UK on 30 January 2016").
my wife's first BRP has SPOUSE/PARTNER LEAVE TO ENTER and when renewed she got the same but LEAVE to REMAIN as the app was submitted in the UK.

Bash_ wrote: ↑

Mon Sep 27, 2021 3:32 pm

As far as I know, it's not possible to apply under article 8 (ECHR ruling) from outside the UK. it's only available for people to apply inside the UK. My friend wife's had an entry clearance from outside the UK and confirmed by HO letter ("You entered UK on 30 January 2016").
my wife's first BRP has SPOUSE/PARTNER LEAVE TO ENTER and when renewed she got the same but LEAVE to REMAIN as the app was submitted in the UK.

Your wife's visa was then granted under the partner route. She applies for ILR under SET(M)
Your friend's wife was very likely granted visa under refugee or humanitarian protection. She must have applied via SET(P)

Zimba wrote: ↑

Mon Sep 27, 2021 3:36 pm

Bash_ wrote: ↑

Mon Sep 27, 2021 3:32 pm

As far as I know, it's not possible to apply under article 8 (ECHR ruling) from outside the UK. it's only available for people to apply inside the UK. My friend wife's had an entry clearance from outside the UK and confirmed by HO letter ("You entered UK on 30 January 2016").
my wife's first BRP has SPOUSE/PARTNER LEAVE TO ENTER and when renewed she got the same but LEAVE to REMAIN as the app was submitted in the UK.

Your wife's visa was then granted under the partner route. She applies for ILR under SET(M)
Your friend's wife was very likely granted visa under refugee or humanitarian protection. She must have applied via SET(P)

Thanks Zimba...