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Flr fp rejection but now reached 10+ years stay

Only for queries regarding Indefinite Leave to Remain (ILR). Please use the EU Settlement Scheme forum for queries about settled status under Appendix EU

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fahadii123
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Flr fp rejection but now reached 10+ years stay

Post by fahadii123 » Sat Jul 11, 2020 1:10 am

Asking for a friend.. please help

He has been legally in the UK for 10 years and 3 months.. 6 years on student visa, then got married in 2016 and unfortunately divorced in 2019. He received curtailment letter on Oct’19. Was advised by a solicitor to apply for FLR(FP). Decision of this came within 3 weeks and was a refusal. He appealed the decision and it has been acknowledged but still pending.

Now the question is if he can make an ILR application as he has been in Uk for just over 10 years.

Thanks for your time and we look forward to your replies

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seagul
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Re: Flr fp rejection but now reached 10+ years stay

Post by seagul » Sat Jul 11, 2020 2:36 pm

fahadii123 wrote:
Sat Jul 11, 2020 1:10 am
Asking for a friend.. please help

He has been legally in the UK for 10 years and 3 months.. 6 years on student visa, then got married in 2016 and unfortunately divorced in 2019. He received curtailment letter on Oct’19. Was advised by a solicitor to apply for FLR(FP). Decision of this came within 3 weeks and was a refusal. He appealed the decision and it has been acknowledged but still pending.

Now the question is if he can make an ILR application as he has been in Uk for just over 10 years.

Thanks for your time and we look forward to your replies
That stratagem might only work where if he was given the option to apply from UK following his visa curtailment and then was given the right to appeal in country.
The opinion expressed as above is neither a professional advice nor contesting/competing to other member's opinion/advice.

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zimba
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Re: Flr fp rejection but now reached 10+ years stay

Post by zimba » Sat Jul 11, 2020 10:03 pm

fahadii123 wrote:
Sat Jul 11, 2020 1:10 am
Asking for a friend.. please help

He has been legally in the UK for 10 years and 3 months.. 6 years on student visa, then got married in 2016 and unfortunately divorced in 2019. He received curtailment letter on Oct’19. Was advised by a solicitor to apply for FLR(FP). Decision of this came within 3 weeks and was a refusal. He appealed the decision and it has been acknowledged but still pending.

Now the question is if he can make an ILR application as he has been in Uk for just over 10 years.

Thanks for your time and we look forward to your replies
Applications made under Appendix FM (or private life) are considered human rights application and they have the right of appeal with Section 3C protections. He can apply under SET(LR) without his section 3C being affected or appeal needed to be withdrawn.

See: 'What is a human rights claim?' in https://assets.publishing.service.gov.u ... l-v8.0.pdf
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vinny
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Re: Flr fp rejection but now reached 10+ years stay

Post by vinny » Sun Jul 12, 2020 12:58 am

Zimba wrote:
Sat Jul 11, 2020 10:03 pm
He can apply under SET(LR) without his section 3C being affected or appeal needed to be withdrawn.
The Guidance differs?
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zimba
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Re: Flr fp rejection but now reached 10+ years stay

Post by zimba » Sun Jul 12, 2020 2:17 am

vinny wrote:
Sun Jul 12, 2020 12:58 am
Zimba wrote:
Sat Jul 11, 2020 10:03 pm
He can apply under SET(LR) without his section 3C being affected or appeal needed to be withdrawn.
The Guidance differs?
That was my view until I saw the appeal guidance document last year: https://www.immigrationboards.com/indef ... l#p1845642
OP in that thread reported he was granted ILR (not sure if he withdrew the appeal or not): https://www.immigrationboards.com/briti ... l#p1875496
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vinny
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Re: Flr fp rejection but now reached 10+ years stay

Post by vinny » Sun Jul 12, 2020 12:46 pm

Thanks! I had forgotten. For consistency, they should have updated the Long residence guidance with the human rights provisions of the Rights of Appeal guidance.
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seagul
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Re: Flr fp rejection but now reached 10+ years stay

Post by seagul » Sun Jul 12, 2020 1:31 pm

Not sure how OP's friend will fall under Appendix FM attracting human right claim since now he is neither a family member of British sponsor nor has any British child (however if there is then situation will be different). Applying merely an irrelevant applicant for buying the time doesn't necessarily legalize the status. Following groups are usually fall under human right claims and based on the information the op has given at earlier he fall under none:

• Paragraph 276B (long residence)
• Paragraphs 276ADE(1) or 276DE (private life)
• Paragraphs 276U and 276AA (partner or child of a member of HM Forces)
• Paragraphs 276AD and 276AG (partner or child of a member of HM Forces),
where:
o the sponsor is a foreign or Commonwealth member of HM Forces and has at
least 4 years’ reckonable service in HM Forces at the date of application
• Part 8 of these Rules (family members) where:
o the sponsor is present and settled in the UK or has refugee or humanitarian
protection in the UK, not paragraphs 319AA to 319J (points-based system
(PBS) dependents), paragraphs 284, 287, 295D or 295G (sponsor granted
settlement as a PBS Migrant)
• Part 11 (asylum)
• Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM
Forces) where:
o the sponsor is a British Citizen or has at least 4 years’ reckonable service in
HM Forces at the date of application
Appendix FM (family members), not: section BPILR (bereavement) or section
DVILR (domestic violence)
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Re: Flr fp rejection but now reached 10+ years stay

Post by vinny » Sun Jul 12, 2020 1:43 pm

seagul wrote:
Sun Jul 12, 2020 1:31 pm
• Paragraph 276B (long residence)
If he applies for SET(LR), then wouldn’t they consider this as a human rights application?
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seagul
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Re: Flr fp rejection but now reached 10+ years stay

Post by seagul » Sun Jul 12, 2020 2:08 pm

vinny wrote:
Sun Jul 12, 2020 1:43 pm
seagul wrote:
Sun Jul 12, 2020 1:31 pm
• Paragraph 276B (long residence)
If he applies for SET(LR), then wouldn’t they consider this as a human rights application?
Yes but op hadn't completed his 10 years when had applied flrfp then it wasn't the case under human right. A recap the op spent 6 years on student followed by around 2.5-3 years on spouse visa and to cover the shortage of time after divorce have applied FLRFP then how human right came into play?? In my view given the above situation if the op has completed his 10 years before/until the expiry of curtailment deadline then the above quote will attract human right covenant.
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zimba
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Re: Flr fp rejection but now reached 10+ years stay

Post by zimba » Sun Jul 12, 2020 11:41 pm

He does fall under Private Life. FLR(FP) is a human rights application given its comes either under Private life or Appendix FM. As you saw above, both such applications are considered human rights applications. Whether his claim is a valid human rights claim or not is a different matter.

FLR(FP) application form tells you this:
Form to apply to stay in the UK on the basis of your family life as a partner, parent or dependent child or on the basis of your private life in the UK.
https://www.gov.uk/government/publicati ... form-flrfp
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seagul
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Re: Flr fp rejection but now reached 10+ years stay

Post by seagul » Mon Jul 13, 2020 4:03 am

Perceptibly OP is neither 18-24 years old who spent almost half of his life in UK nor over 25 years who has spent almost 20 years in UK, therefore, wouldn't fall under private life either likewise ineligible under Appendix FM. Following are the official clinchers over determining the private life.
Apply on the basis of your private life

You can only apply on the basis of your private life if you’re already living in the UK.

You must be able to prove that you’re:

under 18 and you’ve lived in the UK continuously for at least 7 years, and it would be unreasonable to expect you to leave the UK
between 18 and 24 and you’ve lived continuously in the UK for more than half your life
18 or over, have spent less than 20 years in the UK and would have very significant problems living in the country you’d have to go to - for example, you do not speak the language and could not learn it
25 or over and you’ve been in the UK continuously for 20 years
https://www.gov.uk/uk-family-visa/private-life
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zimba
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Re: Flr fp rejection but now reached 10+ years stay

Post by zimba » Mon Jul 13, 2020 2:01 pm

You are confusing whether an application itself is considered a human rights application with whether he has a valid claim on the basis of human rights under private life. Anyone can make a human rights application under private life, however, that does NOT mean their claim is necessarily valid. The things you quoted are the basis in which to prove you have a valid private life claim. UKVI is required to evaluate whether someone has a valid claim or not AFTER such application was made. This means that they shall treat it as a human rights application.
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seagul
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Re: Flr fp rejection but now reached 10+ years stay

Post by seagul » Mon Jul 13, 2020 3:00 pm

Well to keep it precise the main integrant bit which op and most others strive for is section 3C which not just gets triggered by applying in timely rather the application need to be synchronously be valid as well. And for a valid application the claim must be valid as well otherwise section 3C won't be applied as conspicuous in several guidance. Also as stated earlier that a mere application of flrfp just to buy the time doesn't always be treated as valid which attract a guaranteed section 3C.
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Re: Flr fp rejection but now reached 10+ years stay

Post by zimba » Mon Jul 13, 2020 3:53 pm

seagul wrote:
Mon Jul 13, 2020 3:00 pm
Well to keep it precise the main integrant bit which op and most others strive for is section 3C which not just gets triggered by applying in timely rather the application need to be synchronously be valid as well. And for a valid application the claim must be valid as well otherwise section 3C won't be applied as conspicuous in several guidance. Also as stated earlier that a mere application of flrfp just to buy the time doesn't always be treated as valid which attract a guaranteed section 3C.
Now you are confusing a 'valid' application with 'valid human rights claims in an application'. When I said a 'valid claim' I was not referring to the application itself being considered 'valid' or 'invalid'. Application validity is a different matter. When I said 'valid claim', it meant to refer to the applicant having a 'genuine claim' in an application.

Example: If I apply for long residence ILR but I do not qualify for it (a claim to be granted ILR under long residence), I have made a valid application. It will be considered a human rights application. I will be given right to appeal it even after refusal. The fact that I did not qualify and did not have 10 years of lawful residence ( a valid claim) did not matter at all.
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Re: Flr fp rejection but now reached 10+ years stay

Post by seagul » Mon Jul 13, 2020 4:31 pm

Zimba wrote:
Mon Jul 13, 2020 3:53 pm
seagul wrote:
Mon Jul 13, 2020 3:00 pm
Well to keep it precise the main integrant bit which op and most others strive for is section 3C which not just gets triggered by applying in timely rather the application need to be synchronously be valid as well. And for a valid application the claim must be valid as well otherwise section 3C won't be applied as conspicuous in several guidance. Also as stated earlier that a mere application of flrfp just to buy the time doesn't always be treated as valid which attract a guaranteed section 3C.
Now you are confusing a 'valid' application with 'valid human rights claims in an application'. When I said a 'valid claim' I was not referring to the application itself being considered 'valid' or 'invalid'. Application validity is a different matter. When I said 'valid claim', it meant to refer to the applicant having a 'genuine claim' in an application.

Example: If I apply for long residence ILR but I do not qualify for it (a claim to be granted ILR under long residence), I have made a valid application. It will be considered a human rights application. I will be given right to appeal it even after refusal. The fact that I did not qualify and did not have 10 years of lawful residence ( a valid claim) did not matter at all.
Hypothetically you maybe saying correct but based on what guidances have been saying in line with op's circumstances his application can be deemed as invalid expunging any retrospective section 3C. The crucial point which is missing in your example is that the op hadn't yet completed his 10 years rather adopted a circuitous route of flrfp which neither fit in appendix fm nor to private life. The example you given might have been practicable where until the deadline of curtailment the op marks his 10 years. Furthermore, there is also silver lining be possible as evinced in several precedence in past but these all are subject to the level of individual caseworker's discretion. Again an application need to be valid for a valid claim to attract section 3C. There is an extensive guidance about invalidity of an application leading to the forfeiture of section 3C which simply can be google searched.
Good luck.
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Re: Flr fp rejection but now reached 10+ years stay

Post by zimba » Mon Jul 13, 2020 4:47 pm

I am talking about specifically his FLR(FP). I am not sure how you can demonstrate that his application is invalid. You seem to believe application validity is somehow related to claims in an application. Unless UKVI returns his application as invalid, section 3C remains engaged. There is no reason why his FLR(FP) or a subsequent variation to SET(LR) will be rejected as invalid. Also, the fact that he did not complete 10 years when he applied for FLR(FP) is irrelevant.
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