I need urgent advice please help

My wifes FLRM was refused back in March as we applied late due to an issue with not meeting the requirements for ILR in time. My solictor had been trying to see if the courts would reverse their decision and issue the right to an appeal with no avail. I applied for an in time request for reconsideration sighting obstacles I face if I were to move to my wife's country of birth and I've not received a response. Its been 2 months.

My wife has the B1 Entry 3 language certificate but no life in the UK test as her passport was retained by Home Office and that was her only photo id to sit the test. If she were to some how sit the life in the UK test soon and we applied for SETM by post under pre-2012 rules 2 years route to settlement, do we stand a chance of success? Its been 9 months now since here spouse visa has expired and the Home Office is asking her to leave the country but isn't setting removal directions.

Please kindly advise what our options are.

Thanks in advance.

Can you post some exact dates for us please?

When did your wife's visa expire and when did you put in the flr(m) application?

Was the only rejection reason being that it was late?

What has your solicitor done so far on the appeal?

Hi MPH80

My wifes visa expired on 10th January 2014 and we didn't put in an application for FLRM extension till March 12th and received refusal decision on 29th April. They refused the application soley on the fact that we didn't apply in time. My request for a reconsideration was made on 15th July within the 3 months period given.

Our solicitor has been trying to get the first tier tribunal to issue the right to appeal by sending them numerous letters over time to see if they will change their decision but so far they are unwilling. He even tried to take it to upper tier tribunal who also refused and redirected to the first tier tribunal. Theres nothing more that can be done now to change their minds.

In regards to my request for a reconsideration. Yesterday I sent a follow up letter and further medical evidence via recorded delivery to show that we have insurmountable obstacles to relocating to my wife's country of birth and suprise suprise I received the following response.

"We have received your letter and paperwork today, Your previous letter and this correspondence has been forwarded to the relevant team in Sheffield for reconsideration. Your case was returned to Sheffield after our decision was made. Please forward any further correspondence to Sheffield."

I'm not happy with the fact that my letter for an in time request for reconsideration was retained for 2 months by the PEO office in Cardiff and not forwared onto the relevant department. I've contacted my MP in regards to this and they will be chasing it up with the Home Office.

If our request for reconsideration is not accepted are we still able to apply for SETM via post if my wife passes the life in the UK? My solictior recommends we do an application for FLR FP in the meantime which I'm not keen on due to the 10 year route to settlement.

The short answer is no you can't successfully apply for ILR.

That's the reason I wanted to know the exact dates and details of the appeal. Because your application was so late, your wife became an overstayer and regardless of the situation with the reconsideration at the moment, she has no valid leave right now.

Your options are a) have her return to her home country and apply under the new rules or b) apply under flr(fp) as your solicitor has advised.

I'd be very surprised if the reconsideration request panned out but you never know.

As a follow up thought - even if the reconsideration request is successful - because the original application was when she was an overstayer (and was outside the 28 days leeway period) it would be likely you'd be granted discretionary leave anyway - and since that instantly moved to the 10 year path when the rules changes in July 2012 - you'd be on that path regardless of the reconsideration or the FLR(FP) application.

Someone might come along and correct me on this - but I'm pretty sure that's going to be the case.

In the event that our reconsideration is accepted and they offer discretionary leave or we have to do FLR FP 10 year route to settlement, could we go down the Surinder Singh route or would this not be an option?

You can do that today. You don't have to wait for those to succeed or fail as the case may be.

But understand that Singh requires you to move the centre of your life to the new country. You have to be there for at least 6-12 months (no one is quite clear on that) and you'll have to take employment or be fully self sufficient. If you're found to be jetting back to the UK on a regular basis ... or you've kept your house empty to come back to ... etc - that'd be counted against you etc.

Basically they've tightened it up so that you have to show you had the intention of properly living in the other EU country.

It's not to say it's impossible - but it is much tougher than it was. It's also worth noting that the Irish unemployment rate (being the most likely country to choose given the language element) has fallen 1 percentage point over the last 12 months - but still stands at 11.2% - compared to the UK on 6.5%.

MPH80 wrote:You can do that today. You don't have to wait for those to succeed or fail as the case may be.

But understand that Singh requires you to move the centre of your life to the new country. You have to be there for at least 6-12 months (no one is quite clear on that) and you'll have to take employment or be fully self sufficient. If you're found to be jetting back to the UK on a regular basis ... or you've kept your house empty to come back to ... etc - that'd be counted against you etc.

Basically they've tightened it up so that you have to show you had the intention of properly living in the other EU country.

It's not to say it's impossible - but it is much tougher than it was. It's also worth noting that the Irish unemployment rate (being the most likely country to choose given the language element) has fallen 1 percentage point over the last 12 months - but still stands at 11.2% - compared to the UK on 6.5%.

Also bear in mind that most of the work is in Dublin, especially in IT, and it's freakishly expensive, on a par with Zurich and that's saying something considering IT work in CH is paid twice that in Dublin and that's still not enough...

I've worked in both places so I know.

Outside Dublin you're faced with the Cork accent (impenetrable) and Galway (Irish Language) so it's a rock and hard place.

I agree with MPH80 regarding the discretionary leave. I can't see that an FLR(M) application would have succeeded as there was no valid leave to extend.

I've been reading into the Singh route recently on the free movement website and its states that the "centre of your life" rule is not compatible with EU law therefore the EU commission will be conducting infringement proceedings against the UK. So I'm assuming this will rule will be void soon?

You can read about it here:

http://www.freemovement.org.uk/eu-to-in ... der-singh/

If we were to go down this route we would be moving to Belgium for about 4 months and then exercising our treaty rights. I have a cousin who lives and works in Belgium who would be able to sort out accommodation and help look for a job if the need arises. He said English is also widely spoken in Belgium.

I'm not familiar with with what you mean by leaving your property empty however my brother also lives with me so he will take care of things in my absence.

Also If I were to apply for FLR FP before I went down the Singh route as an added security measure in case it goes wrong, would my wife still be allowed to remain in the UK?

Are you saying you would wait for the FLR(FP) decision before moving to Belgium? Don't count on the rules changing for 'centre of life'.

Until the EU makes some kind of petition to the courts - the law remains in place - and continues to be interpretted that way by the UK government.

If the EU have just started the process of investigation this month - then that process will not be completed for at least a year - probably double that (UK courts ... appeals ... EU courts ... appeals). This is just the first stage where they ask nicely 'how do you think this works?'

Look at the appeal on the financial rules. We're two years on into the process and we're still in the middle of the appeals.

4 months will be insufficient with the current rules in place.

If you put in an FLR(FP) application - her passport (and yours) will need to be submitted - she'll be unable to go to Brussels. You have to be working or studying to exercise your treaty rights - so work will be necessary.

Working for 6 months is not an issue and I'm confident I would be able to find work but the more less time we could spend there would have been better.

In regards to FLR FP what I meant to say was when it is granted and we get the passports back and my wife travels to Brussels with me, can she still enter the UK if for some reason they refuse to let her enter when I exercise my treaty rights?

I don't have definite plans to go down this route at the moment but I am trying to find out more about it. I'm hoping my wife's FLRM is granted and I would not need to resort to this measure. This route would be purely to get around the 10 year route to settlement option.

Casa wrote:I agree with MPH80 regarding the discretionary leave. I can't see that an FLR(M) application would have succeeded as there was no valid leave to extend.

If you have genuine reasons for the delay and they accept it then I don't see any reason why FLRM can't be granted even though there is currently no leave to extend. I'm hoping and praying this will be the case.

mkhan2525 wrote:

Casa wrote:I agree with MPH80 regarding the discretionary leave. I can't see that an FLR(M) application would have succeeded as there was no valid leave to extend.

If you have genuine reasons for the delay and they accept it then I don't see any reason why FLRM can't be granted even though there is currently no leave to extend. I'm hoping and praying this will be the case.

The simple truth is that the rules require you to have valid leave at the time of application (or be within 28 days of the expiry of the previous visa).

Since you didn't have that - that means your visa application falls outside the rules and into the discretionary leave pool.

This is precisely why discretionary leave exists - for circumstances like this - but it is a different path to settlement.

MPH80 wrote:

mkhan2525 wrote:

Casa wrote:I agree with MPH80 regarding the discretionary leave. I can't see that an FLR(M) application would have succeeded as there was no valid leave to extend.

If you have genuine reasons for the delay and they accept it then I don't see any reason why FLRM can't be granted even though there is currently no leave to extend. I'm hoping and praying this will be the case.

The simple truth is that the rules require you to have valid leave at the time of application (or be within 28 days of the expiry of the previous visa).

Since you didn't have that - that means your visa application falls outside the rules and into the discretionary leave pool.

This is precisely why discretionary leave exists - for circumstances like this - but it is a different path to settlement.

Are we able to apply for a new spouse visa whilst she is in the UK?

Not without valid leave.

If say my wife was granted discretionary leave would we then be able to apply for spouse visa?

mkhan2525 wrote:If say my wife was granted discretionary leave would we then be able to apply for spouse visa?

Why would you think she'd get DL?

For the avoidance of doubt, "Centre of Life" test is unlawful.

People who are affected by it are entitled to challenge it in court, and the UK courts are required by the European communities act 1972, to ignore it and give direct effect of EU law.

Have we evidence that it has been successfully challenged?

Wanderer wrote:

mkhan2525 wrote:If say my wife was granted discretionary leave would we then be able to apply for spouse visa?

Why would you think she'd get DL?

I was looking into what circumstances they grant DL and medical reasons were mentioned on there therefore its likely. I'm still hoping they grant FLRM as we had exceptional circumstances for applying late and I did mention it in a covering letter when I submitted the application. It seems to me who over made the decision to refuse saw that the application was out of time and decided to refuse purely on that basis. The medical evidence we have is just to prove that we have insurmountable obstacles in case they refuse again when they come to reconsidering our case.

Casa wrote:Have we evidence that it has been successfully challenged?

Somebody did challenge it and and wrote to the EU commission who wrote a letter back to them saying it was unlawful and not compatible with EU law and that they are starting infringement proceedings against UK. People who are effected by this may be able to use that letter on free movement website when challenging their case.

Casa wrote:Have we evidence that it has been successfully challenged?

There is a Court of Justice decision called OB, which is wholly inconsistent with "Centre of Life" test.

It implicitly disavow that test.

It follows from the principle and reasoning of that judgement , that a test such as the One in the UK, is inconsistent with EU law.

I did not base my view on the EU commission. Their view is by no means binding on the UK, but the CJEU certainly is.

Ok - but that doesn't change the earlier advice.

If you go down the Singh route, with the rules in place as they are, the only way to challenge them is through appeal - which (depending on how the Home Office are feeling) could be many many stages.

By the time you get to the other end you're STILL stuck in the other EU country with your spouse and *maybe* the situation has changed. Chances are, by the time you get there, you're at least 12 months further on and you could have just applied under the rules!

Until such time as UKVI remove the rules from their rule book (either through choice or through explicit court ruling) - they stand as far as UKVI are concerned (whether rightly or wrongly). They've have more than enough time to consider OB given it's been over 6 months and have still not removed the rules so they obviously feel they have some leg to stand on (although I've no idea what!). They've certainly removed other rules fast enough when they are struck down by the courts.