Which form to use FLR(O) or FLR(FP)?

[bodhis]

My wife is currently in the UK on an FLR (O) which expires 14/09/2014

She is an Albanian citizen who entered the UK on a Fiance visa in November 2004
We were married December 30th 2004
First FLR(M) issued April 2005
Son born November 2005
Second FLR (M) issued May 2007 (life in UK Test requirement introduced for settlement a month before our application, no time to learn the material and take the test)
Daughter born March 2010

My wife then took and failed the Life in the UK test five times and had one refused because her passport is still in her maiden name and didn't match the name on the bank card she paid for the test with. My wife is not well educated and suffers from symptoms of stress when attending the test centers.

Not being able to pass the Life in the UK test meant we were forced to apply for leave to remain using FLR(O) using the Family Life route. This was granted as "exceptional leave to remain" outside the rules. At the time we were told that we could not go back to the "Marriage" route and would have to reapply for a further 3 years using FLR(O) before making an Indefinite Leave to remain application.

It now appears that the FLR(O) no longer includes Family/Private life applications

To make an application for Further leave to
remain under Appendix FM of the Immigration
Rules as a partner (10-year route), or a parent
(5 year & 10 year routes), or under the Rules
on the basis of your private life in the UK you
must complete form FLR(FP).


However, the guidance notes FLR(FP) state :

You MUST use this FLR(FP) form if you are applying for an extension of stay in one of the
following categories:

• Family life as a partner (10 year route)
• Family life as a parent (5 year and 10 year routes)
• Private life in the UK (10 year route)

Further reading suggests that we should get a further 30 months using this route but that in order to achieve Indefinite leave to remain she will need to pass both the Life in the UK test and KOLL level B1.

As I understand it our only course at present is to again use the "Family / Private Life route" until such time as she can pass the required exams which may require therapy to help her overcome her anxiety and panic attacks when attending the test center.

Can anyone confirm that FLR(FP) is the correct route to take despite falling a few months short of the "10 years".

Any advice would be very much appreciated.

[Amber]

Either get the test done or get your GP to write a letter stating that due to ongoing mental health issues she's unable to take the tests. You may apply for SET(M) as it doesn't require extant leave.

The letter must state the condition, and explain why it is unreasonable to expect the applicant to take the Life in the UK test or learn English.

As she is on DLR she must extend on FLR(O) not FLR(FP), settlement would be on SET(O) after 6 years DLR, there would be no B1 or LIUK requirements.

I've given you the two available options. I'd think its best to extend on FLR(O) before leave expires, then SET(M) whenever she can get medical evidence or satisfy the KoLL or wait until 6 years DLR and apply for SET(O) as this doesn't have a KoLL requirement. SET(LR) could also be an option but that would again require KoLL.

[Amber]

The OP has only had 3 years DLR and requires another 3 to settle on SET(O) - 6 years DLR.

To extend on FLR(FP) would be a serious error, not only stopping them claiming public funds but also setting them on a route to settlement which is long and requires KoLL.

People applying in the following categories do not need to meet the KoLL requirement:

People applying for indefinite leave to remain following six years of discretionary leave

The extension must be on FLR(O) for a further 3 years DLR. There are 3 routes to settlement the OP could take, only SET(O), following 6 years DLR would not require KoLL. The other two may also be exempt on the grounds of mental health issues.

[Obie]

I have removed my posts and the references to it, so as not to mislead OP or others who may not read further. And i endorsed your one Amber.

The SET O application seem to make reference in section 4 to people who are over 65 or under 18 or have mental issues in regards to KOL, so i assumed it is a general rule.

I believe OP's second application was FLR( M), but he must have been given DLR from 2007-2010. I stand to be corrected on that. The immigration rules does not seem to provide for 2 sets of FLR(M).

If indeed he was granted DLR in 2007 when he made their application, then according to the guidance you provided, she will be able to apply for Settlement.

If OP could confirm the endorsement his wife received in 2007, and if it is DLR , then it will be safe to say , he will qualify for ILR on the basis of the Guidance. She did not need to have made 2 sets of FRL(O) application to qualify.

If she made a FLR(M) application, but was granted 3 years DLR, then she would have received 2 DLR now, and could apply for settlement on form Set (O), without the need for KOL.

[bodhis]

Either get the test done or get your GP to write a letter stating that due to ongoing mental health issues she's unable to take the tests. You may apply for SET(M) as it doesn't require extant leave.

The letter must state the condition, and explain why it is unreasonable to expect the applicant to take the Life in the UK test or learn English.

This was something I was considering doing, approaching our GP to find out if there would be a valid "medical reason" I thought mental health issues may be a bit strong but willing to give it a go.

I think she could probably do the KET B1 having read the format and requirements, her spoken English, conversation and comprehension are quite good and with a little preparation she should be OK with that. She has been able to achieve high results doing "practice tests" for LIUK but gets anxious on the way to the test center and worse on entering and actually doing the test. I think the "interview" style exam would be a much better option for her but the first available test is 2/09/2014 and results take 4 to 6 weeks according to the online information.

As she is on DLR she must extend on FLR(O) not FLR(FP), settlement would be on SET(O) after 6 years DLR, there would be no B1 or LIUK requirements.

This confirms the information we were given previously when going down the FLR(0) route last time and yes currently we only have 3 years DLR previously having had 6 years Limited Leave to remain using the FLR(M) track, due to failure to pass the LIUK and having to reapply to extend Limited leave until this option was no longer open to us due to introduction of the LIUK requirement prior to our 2011 application. I missed this third period when writing the original topic as it was not a visa included in her passport but a card type visa which they held on to when we submitted the FLR(O).

I've given you the two available options. I'd think its best to extend on FLR(O) before leave expires, then SET(M) whenever she can get medical evidence or satisfy the KoLL or wait until 6 years DLR and apply for SET(O) as this doesn't have a KoLL requirement. SET(LR) could also be an option but that would again require KoLL.

Thanks for clearing up this issue for me, it is very confusing working through the new rules and requirements when they state that FLR(O) is no longer to be used for "Family / Private Life" applications ...

If my wife were to take the KET Exam on 2/11/2014 and be "waiting for the results" would this help show that we are at least willing to prove her knowledge of English language / culture?

To summarize the introduction of the LIUK test and my wife's inability to pass this test has prevented us from going for ILR(M), we have extended her Limited Leave using FLR(M) up till 2011 when this no longer became an option. In 2011 we applied using FLR(O) based on "Family Life" and children who are "British Citizens". We were granted 3 years DLR and told that we would have to submit a second FLR(O) in 2014 and then SET(O) in 2017 as we could not return to the (M) track once we had "left it".

I hope this clears things up, sorry if my omission confused an already confusing situation.

[Amber]

Apply for FLR(O) before current leave expires. Once an extension of 3 years DLR has been granted, decide what to do, worse case scenario you wait another 3 years for SET(O) without KoLL.

[bodhis]

Thanks for clearing this up, I read the FLR(O) Guidance notes again and saw the paragraph,

Form FLR(O) must be used if you are applying for an extension of stay in one of the following categories:

Discretionary Leave (DL) where the applicant
has previously been granted a period of DL
but has not previously been refused asylum
or granted less than four years Exceptional
Leave

But then they confuse the issue with the next guidance note,

You must not use this form :

To make an application for Further leave to
remain under Appendix FM of the Immigration
Rules as a partner (10-year route), or a parent
(5 year & 10 year routes), or under the Rules
on the basis of your private life in the UK you
must complete form FLR(FP).

I am guessing from your advice that the first note "trumps" the second even though we would be applying on the basis of Family / Private Life since this is an extension of Discretionary leave as opposed to a new application.

Is this the correct way to interpret the guidance notes?

Thanks for your help and advice so far, I appreciate the time you have taken to read my original post in detail and correct the initial advice given.

[Amber]

FLR(O) is the correct application. FLR(FP) is for the 5/10 year routes under the rules after July 2012. You are on a 6 year DLR route under the rules before July 2012.

[bodhis]

Thanks for the explanation, I didn't doubt your advice on the correct form to fill in I was just looking for some clarification on how to interpret the guidance notes. Having read them again more than a dozen times I still find the guidance notes ambiguous without searching for information specifically related to those wishing to extend DLR.

Your inclusion of the regulations change helped pin this down and confirms that we should still be on the 6 year route via the DLR method, I have an additional question....

If we are only granted 30 months (2.5 years) will we need to apply a 3rd time to meet the 6 year requirement for SET(O)? Or is it likely that they will grant 36 months?

[Amber]

Granting of 30 months would be incorrect and you would need to write and ask for a reconsideration.

Do state on a cover letter you are applying for DLR under the rules in place before July 2012 and you should be granted 3 years further DLR.

[Ladydd]

Hi,
Please advise me if I can apply for settlement or leave to remain in the UK with access to public fund for a child who overstay in UK for 8 years. Which application form can I use for the child? . Both parent are now settled indefinitely in UK under point base HSMP but this child has been living in the UK before both parent arrive on HSMP so was not included under HSMP route.

Thanks.

[bodhis]

Granting of 30 months would be incorrect and you would need to write and ask for a reconsideration.

Do state on a cover letter you are applying for DLR under the rules in place before July 2012 and you should be granted 3 years further DLR.

Sorry for the delay in updating this post. I just got an email reminder so thought I would check in.

We did follow your advice and applied using FLR(O) which was granted, my wife has a further 3 years discretionary leave to remain.

Thanks for your advice it really helped.

Best regards

Alan.