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ILR 10 yrs route changed by Home office

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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sarahg
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Posts: 2
Joined: Sun Jan 24, 2021 4:14 pm

ILR 10 yrs route changed by Home office

Post by sarahg » Sun Jan 24, 2021 4:47 pm

Hi
I am married to a British citizen (18 yrs) and have two British kids .
We were not living in the UK and moved here in 2013.

I was granted limited leave to remain outside immigration rules in 2014 (2.5 yrs). Letter indicated I can apply for settlement after 10-year (under 10-year route)

Renewed in 2017 and Home office granted me another 2.5 years but title of the letter said 10 year Partner route

Renewed in 2020 and home office granted me 2.5 BUT now it's under 5 year partner route.

My questions:
- Can Home office change the route even though I didn't apply for a change?
- Under E-ILRP.1.4 does that mean that I can use the period from 2014 (first acceptance) to apply for ILR now seeing that I have been with the same partner?

Thanks in advance

secret.simon
Moderator
Posts: 10975
Joined: Thu Feb 21, 2013 9:29 pm

Re: ILR 10 yrs route changed by Home office

Post by secret.simon » Sun Jan 24, 2021 8:29 pm

sarahg wrote:
Sun Jan 24, 2021 4:47 pm
- Under E-ILRP.1.4 does that mean that I can use the period from 2014 (first acceptance) to apply for ILR now seeing that I have been with the same partner?
No.

If you see the Immigration Rules for the grant of ILR in that category, it states
E-ILRP.1.1. To meet the eligibility requirements for indefinite leave to remain as a partner all of the requirements of paragraphs E-ILRP.1.2. to 1.6. must be met.
One of those requirements is
E-ILRP.1.3. (1) Subject to sub-paragraph (2), the applicant must, at the date of application, have completed a continuous period of either:

(a) at least 60 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1.; or
(iii) a combination of (i) and (ii);
or
(b) at least 120 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1. or D-ECP.1.2.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1. or D-LTRP.1.2.; or
(iii) a combination of (i) and (ii).
So not only do you have to be married to the same partner, but also you need to have been given the appropriate relevant leave to remain/visas in the past for ILR to be granted under the 5 year rule. Any Leave Outside The Rules does not count, as you can see from the quote above.

The general rule to remember is that for ILR to be issued in five years, the general requirement is that the visas must be under the same category. Mixing-and-matching visas to get ILR is only generally allowed under the 10 year rule.

In this case, you seem to have been issued your first visa Outside The Rules and hence they do not count towards a subsequent grant of FLR(M)-the visa that leads to a five year pathway to ILR for spouses.
sarahg wrote:
Sun Jan 24, 2021 4:47 pm
I was granted limited leave to remain outside immigration rules in 2014 (2.5 yrs). Letter indicated I can apply for settlement after 10-year (under 10-year route)

Renewed in 2017 and Home office granted me another 2.5 years but title of the letter said 10 year Partner route

Renewed in 2020 and home office granted me 2.5 BUT now it's under 5 year partner route.
Did your British spouse fill in the correct forms when you all moved to the UK? Did s/he meet the requirements for sponsoring a non-EEA spouse, such as the minimum income requirement, etc.

It is likely that your British spouse did not meet one of the requirements when you all moved to the UK and hence your first visa was issued Outside The Rules. It may be that s/he either filed the wrong form or still did not meet the requirements at the time of the first renewal in 2017 and hence you remained on the 10 year partner path. In 2020, your partner likely met all the requirements and filled in the correct form. Hence you got leave under the 5 year path.

You will be eligible to apply for ILR on the earlier of meeting either the 10 years continuous legal residence requirements for ILR Long Residence (which allows for any mix of legal visas provided there is no break in between) or the continuous 5 years residence under the FLR(M) route, which is the visa/Leave to Remain that you currently have.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

sarahg
Newly Registered
Posts: 2
Joined: Sun Jan 24, 2021 4:14 pm

Re: ILR 10 yrs route changed by Home office

Post by sarahg » Sun Jan 24, 2021 8:51 pm

Thanks Simon
Very helpful
.
I am just a bit confused about this part
According to E-ILRP.1.4

“E-ILRP.1.4. In calculating the periods under paragraph E-ILRP.1.3. only the periods when the applicant’s partner is the same person as the applicant’s partner for the previous period of limited leave shall be taken into account.”

My understanding from this then that I can count from 2017 as it was partner visa (not from 2014 as this was outside immigration rules)

In 2014 yes we filed outside immigration rules as didn’t meet financial requirements with the help of a solicitor. Then 2017 same lawyer applied to us. Last one we actually applied on our own to save on lawyer fees using the same form lawyer used . I am wondering if there was mix up on Home office. I will try to call tomorrow to understand why it jumped to 5 year route. I was ok with 10 years route really.

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