Article 8 appeal

Alex is a British citizen who married a nonEU citizen Bianca who came to the UK in 2015 on a spouse visa. When her visa was close to expiring in Feb 2018 she received a letter from the home office indicating that she is eligible to apply for ILR. Apparently her friend who was on a similar boat had gotten her ILR after 2.5 years of spouse visa with premium processing a few months prior. Because of the letter and her friend's experience she applied for ILR (please no judgment on this error). She received a rejection a few months letter that she did not qualify for it because of the "5 years requirement" and also they had submitted "insufficient financial evidence". They are above the 18600 yearly income by a significant amount and as per ILR requirements which indicated 3 months of pay stubs, they had submitted 4 months of pay stubs. Home office noted that they needed 6 months instead.
Upon conferring with a solicitor who advised an appeal this went to FTT. The judge refused essentially indicating the same reasons and they did not get much support from the lawyer who was representing them who seemed ill prepared. The final decision letter also mentioned financial strain on NHS and housing which seemed false since they own their own house and are taxpaying professionals.
This decision was re appealed and the decision was appeal granted under Article 8- "some form of leave to remain" which also confirms the first judge did not review the evidence in its entirety and an error of law was made. My questions are as follow:
1. Is this a definite discretionary leave/LOTR which the solicitor also says it will be but asked us to wait for the home office letter. Not sure at this point if the solicitor is trustworthy since she seemed very optimistic with the first appeal and with the second one said instead of the ILR she will be granted the alternative of spouse visa extension while counting the months spent in all the appeals which would make her eligible to apply for ILR in 2020.
2. Is there a chance that is not the DL and a spouse visa extension?
3. If it is DL, does she now have to spend 10 years in DL with repeated extensions before applying for ILR, essentially making her stay since 2015 to early 2019 null?
4. Is there a chance that ILR can be applied for earlier even if under DL. The home office rules mentions some exemption under appendix FM which I could not fully comprehend.
5. They do not have children but if they were to in the future while she is in DL, will she be eligible for child benefits?
It is very disheartening that they never really took responsibility for the letter and kept on harping on the same issue with the finances when it was submitted in its entirety with the 6 months paystubs at the time of the first appeal. And even with admission on error on their part, how is it now under outside of immigration rules and the solicitor also never mentioned that this DL was a possibility prolonging further the ILR route when she has been here lawfully all along. But I guess that is immigration. Thanks in advance for the guidance.

No answers yet? I know it's long but any guidance will be greatly appreciated.

Alexa1 wrote: ↑

Sat Jan 26, 2019 4:46 am

Alex is a British citizen who married a nonEU citizen Bianca who came to the UK in 2015 on a spouse visa. When her visa was close to expiring in Feb 2018 she received a letter from the home office indicating that she is eligible to apply for ILR. Apparently her friend who was on a similar boat had gotten her ILR after 2.5 years of spouse visa with premium processing a few months prior. Because of the letter and her friend's experience she applied for ILR (please no judgment on this error). She received a rejection a few months letter that she did not qualify for it because of the "5 years requirement" and also they had submitted "insufficient financial evidence". They are above the 18600 yearly income by a significant amount and as per ILR requirements which indicated 3 months of pay stubs, they had submitted 4 months of pay stubs. Home office noted that they needed 6 months instead.
Upon conferring with a solicitor who advised an appeal this went to FTT. The judge refused essentially indicating the same reasons and they did not get much support from the lawyer who was representing them who seemed ill prepared. The final decision letter also mentioned financial strain on NHS and housing which seemed false since they own their own house and are taxpaying professionals.
This decision was re appealed and the decision was appeal granted under Article 8- "some form of leave to remain" which also confirms the first judge did not review the evidence in its entirety and an error of law was made. My questions are as follow:
1. Is this a definite discretionary leave/LOTR which the solicitor also says it will be but asked us to wait for the home office letter. Not sure at this point if the solicitor is trustworthy since she seemed very optimistic with the first appeal and with the second one said instead of the ILR she will be granted the alternative of spouse visa extension while counting the months spent in all the appeals which would make her eligible to apply for ILR in 2020.
2. Is there a chance that is not the DL and a spouse visa extension?
3. If it is DL, does she now have to spend 10 years in DL with repeated extensions before applying for ILR, essentially making her stay since 2015 to early 2019 null?
4. Is there a chance that ILR can be applied for earlier even if under DL. The home office rules mentions some exemption under appendix FM which I could not fully comprehend.
5. They do not have children but if they were to in the future while she is in DL, will she be eligible for child benefits?
It is very disheartening that they never really took responsibility for the letter and kept on harping on the same issue with the finances when it was submitted in its entirety with the 6 months paystubs at the time of the first appeal. And even with admission on error on their part, how is it now under outside of immigration rules and the solicitor also never mentioned that this DL was a possibility prolonging further the ILR route when she has been here lawfully all along. But I guess that is immigration. Thanks in advance for the guidance.

Hi,

Not 100% sure but this may not be exactly be DL being granted under article 8, from my understanding, it may be FLR(FP) family or private life, which is also a 10 year route to settlement, my understanding is that would reset your immigration clock.

This is the FLR(FP) guidance, to my understanding, as you have no kids and you failed to meet the 5 year settlement requirements, but meet the financial, although it seems you have an established private life as you are in a subsisting marriage, my understanding is the grant of further leave to remain under article 8, may be on this route.

Normally, to my knowledge and understanding, Article 8 is also considered under the FLR FP route, as for recourse to public funds, you may not be allowed to claim public funds unless it has been proven that you are destitute and need it, this may be lifted.

Even DL is granted with no recourse to public funds unless there has been a request and pending individual circumstances, may be granted without this condition or you are under transitional arrangements as the old DLR allowed recourse to public funds and was a 6 year route to settlement, this was for those granted before 9 July 2012 immigration changes.

If anything you should read the guidance for appendix FM family life as a partner or private life

Thank you for your response. Now that I read more into it, I think it might be the FLR(FP) too under article 8. While reading the attached link I also came across this:
"An applicant granted leave to remain under the 10-year partner, parent or private life routes may be able to qualify for settlement (indefinite leave to remain) after they have completed a continuous period of 10 years (120 months) in the UK with leave under that route. An applicant must choose or meet a route in order to qualify for settlement, they cannot combine different types of leave. They may, however, qualify for settlement more quickly if they are successful in a subsequent valid application for leave under the 5-year partner or 5-year parent route of Appendix FM. Their previous leave under the 10-year partner, parent or private life route would not count towards the continuous period of 60 months with leave under that 5-year route required before the applicant may be able to qualify for settlement under that route."

1. Does this mean that despite the FLR (FP) 10 year route that maybe granted, is there a possibility that an ILR application can be made in 5 years if all requirements are fulfilled? If so is the 5 years starting now with resetting the clock not taking into consideration the prior spousal visa?
2. Is there a remote possibility that this is not outside of immigration rules and a more reasonable approach can be expected from the home office making her eligible to apply for ILR next year (2015 entry date to 2020 with completion of 5 years)? I guess we are trying to grasp at every little hope possible.

Thank you!

Just to clarify it a bit:
1. If you get the FLR (FP) with the 10 year route, can you still go ahead an apply for the FLR (M) spousal visa extension (to minimize the 10 year to the 5 year route)?
2. If you successfully get the FLR (M) spousal visa extension will the previous visa period count (2015 to 2018)? Will the 1 year (2018 to 2019) in appeals also count towards the 5 year ILR route?

Thanks again!

Any input on the last 2 questions? I saw some posts from the past regarding switching from FLR (FP) to FLR (M) but am worried regarding the clock resetting even if the spousal visa extension is granted: the 1 year in appeal time which were all submitted on time, and the brief FLR (FP) visa before the FLR (M) being submitted counting as interruptions.
I'd appreciate any guidance. Thank you in advance.