Discrestionary Leave to Remain for my Wife ...Please help!

[Rayman2010]

Hi, I was wondering if anyone can help me...i sponsored my wife on a 6 month family visitors visa, we have a daughter who is a british citizen by descent and has a valid british passport, they are both currently in the UK, and visa is due to expire in 5 weeks time, which means my wife has to return back to her country of origin with my British daughter ... and she is also 3 months pregnant, i have spoke to various legal advisors who say my wife can apply to stay in the uk under discretionary leave to remain application and article 8 and section 55 of boarder and nationality act 2009 with regards to welfare of british child, im not sure if we have a chance of success on this....but i dont even know what documents i need to raise to to start the process before we run out of time ...can anyone please advise what documents i would need.

many thanks!

[physicskate]

Much faster, less stressful and cheaper to just apply from her home country for a spouse visa...

Applying for FLR(FP) as a visitor will be rejected (as one is not allowed to change from a visitor visa to any other visa). The end result will be appeals, years and lawyer costs through probably several layers of appeals. I would not want to put a pregnant woman through that. If she returns home now, she could be back within a few weeks on a spouse visa. Going for the spouse visa would also allow the child to be born in the UK using the NHS (if you wished). There is no way her FLR(fp) would be approved in the next six months, meaning you would owe sever thousand in NHS bills for the cost of the birth.

Do you earn more than £18600 pa or have significant savings?

[noajthan]

Hi, I was wondering if anyone can help me...

...

i have spoke to various legal advisors who say my wife can apply to stay in the uk under discretionary leave to remain application and article 8 and section 55 of boarder and nationality act 2009 with regards to welfare of british child, im not sure if we have a chance of success on this...

many thanks!

Suggest get out of a 'HR mindset'.

And beware, these legal advisors 'have seen you coming'.

[Rayman2010]

I'm on a pretty good salary with a stable career, the main issue is my wife language is not up to standard in order to pass the A 1 IELTS exam, and my wife will find very difficult to study whilst pregnant and looking after our 2 year old daughter.

Making an FLR application within the current visa time limit is fine, and whilst the application is in progress ...even as the visa has expired , she would be under no restrictions until the outcome of the FLR application has been determined, in which case we can appeal ... If not she can return back to the country and make a new application of our choosing without any significant affect on ant future applications as she would of stayed within the rules and not applied after the expired visitors visa.

[noajthan]

I'm on a pretty good salary with a stable career, the main issue is my wife language is not up to standard in order to pass the A 1 IELTS exam, and my wife will find very difficult to study whilst pregnant and looking after our 2 year old daughter.

The secret is practice in a group setting so send wife out of house to join a 'mother and toddler group'.

Mother and child will benefit so its a win-win with little ir no downside.

[Casa]

This is likely to be strung out for months, so how are you going to pay several thousand pounds in NHS fees if your wife has to give birth in the UK? Any treatment is charged @ 150% of the cost and the NHS are now required to notify the Home Office of any outstanding bill.

[Rayman2010]

I think that can be avoided if she has a home birth ....we have a doctor who is a very close family friend who specialises in maternity......if it comes to it that is! I guess ....

Look I want to stay within the boundaries of the immigration law and I won't risk breaking the law and distressing my wife ...but because I am been told that we have a strong case ...we stand a chance in have the DLR approved ...but I wanted to get an honest opinion from anyone who knows more on this forum....so your help and advise is greatly appreciated...

[Casa]

IMHO your case isn't strong. The HO are increasingly taking a tough stance on visitors who attempt to use an article 8 claim to stay on when their visa expires. 'Anchor baby' applications frequently fail and the only winners are the legal advisors who have been able to line their pockets during the lengthy appeal process.

Ask them if they'll take the application on a no win, no fee basis and see if they're as confident then.

[Casa]

Also the legal advisor has advised a discretionary leave application. They should be well aware that since 9 July 2012, DL is no longer granted for family or private life reasons. You may want to read through this link on UKVI guidance to Immigration Officers:

https://www.gov.uk/government/uploads/s ... __v7_0.pdf

FLR(FP) partner route is a 10 year path to permanent settlement, whereas if your wife applies for a spouse visa within the Rules from outside of the UK she would qualify for ILR within 5 years.

[Obie]

Also the legal advisor has advised a discretionary leave application. They should be well aware that since 9 July 2012, DL is no longer granted for family or private life reasons. You may want to read through this link on UKVI guidance to Immigration Officers:

https://www.gov.uk/government/uploads/s ... __v7_0.pdf

FLR(FP) partner route is a 10 year path to permanent settlement, whereas if your wife applies for a spouse visa within the Rules from outside of the UK she would qualify for ILR within 5 years.

I think some of the advisers are trying to say, the person should make an application outside the rules, and ask the Secretary of State to exercise her discretion .

DLR are still being issued, but it has a 10 years pathway to ILR, to those it was issued to after 09-07-2012.

[Casa]

In which case Obie, why does the guidance say:
"From 9 July 2012, DL is no longer granted for family or private life
reasons though caseworkers must be aware that there will be cases where people were
granted an initial period of DL on the basis of their Article 8 rights before 9 July 2012 and must
refer to section 10: Transitional arrangements."

[Rayman2010]

Ok what if my wife does her A1 test in the UK whilst she is here on her visit then goes back to her home country and applies for a spouse visa ? Can she do that ?

[Obie]

In which case Obie, why does the guidance say:
"From 9 July 2012, DL is no longer granted for family or private life
reasons though caseworkers must be aware that there will be cases where people were
granted an initial period of DL on the basis of their Article 8 rights before 9 July 2012 and must
refer to section 10: Transitional arrangements."

This seem to be the latest version.

From 9 July 2012, those granted DL must normally have completed a continuous period of at least 120 months’ limited leave (i.e. a total of 10 years, normally consisting of 4 separate 2 and
a half year periods of leave) before being eligible to apply for settlement. Separate
arrangements exist for those granted an initial period of 3 years’ DL prior to 9 July 2012. See
section10 - Transitional Arrangements.

They are giving people who don't meet the Immigration rules, but do have a good article 8 case.

In the case of the OP, at present, his wife does not qualify under the immigration rules as long as her visitor visa is life.

She may be able to apply within 28 days of her six months leave expiring.

[Casa]

Ok what if my wife does her A1 test in the UK whilst she is here on her visit then goes back to her home country and applies for a spouse visa ? Can she do that ?

Yes she can. In my opinion this would be a far safer option than heading down an uncertain DL route which if successful would put your wife on a lengthy 10 year path to settlement.

In order for an application to succeed outside of the Immigration Rules, your wife would have to show strong evidence of compelling & compassionate reasons why she can't submit a spouse visa application from her home country. There doesn't appear from what you've posted that there are any.

[Rayman2010]

There is a real important factor at play here ...it's the welfare of a british child separating from her non British Mother, which would cause a significant negative impact on the development of.my daughter ...my daughter has the right to be in her country which is the uk ....but she need her mother with her ....we can and are able to sustain ourselves without the resources of public funds I have a professional career and my salary is 45K + ...
It's the separation factor of my child and her mother that is the main problem adding the other issue of pregnancy , and I be honest my wife's English is terrible and there is no chance she will pass this IELTS test .....

The other issue is that even if she did go back to her country ...it's inevitable that I will apply for a british nationality by descent for my new born....and the home office will take around 12 months of checks which would result in the Home Office wasting money and time , as they will have to give my child a british passport as they did with my daughter....

[Obie]

She is in the first trimester , right?

How old is your elder child again? And is he or she in school at present?

[Casa]

The HO are likely to take the view that your daughter can return with her mother while the application is submitted & processed. It should after all be for only a few weeks. Your English is obviously fluent, so couldn't you help your wife with home study?

However, the forum can only put forward the pros & cons but at the end of the day it's your call.

[Rayman2010]

Yeah she is in her 1st trimester...daughter is 2 years old and my daughter has 2 other brothers here too who both from my previous marriage...who are both British citizens ...I need to be here as I have an active Court order to see my sons and I pay CSA for them also ...so there isn't even an option to move back to my wife's country even if I wanted to...

[physicskate]

I (and the UKVI) take a very dim view of visitors trying to circumvent the immigration rules (having wife come on a visitor visa where she should have proven that she would return to her home country, and then trying to stay in the UK).

If you acted quickly, your wife could well be back in the UK in a few weeks/ months.

You really want to put a pregnant woman through the stress of several years of fighting and appeals!!!!???? You think that won't put stress on a family?

Additionally, if you insist that your wife stays in the UK, your wife would have to undergo the birth in the UK paying THOUSANDS of pounds, in addition to the thousands you will have to spend on lawyers, applications and appeals. You are on a decent salary, but money does not grow on trees, so it seems silly for you to waste it.

Get your wife to some mum and baby groups, English classes and then have her return to her home country and then she can return to the UK knowing that she is legal and she will qualify for ILR after only 5 years and two visas, instead of several years of appeals, and then a 10 year and 4 visa process... throughout which your wife will not have a secure right to stay in the UK...

[Rayman2010]

I about to put my daughter into play group ...she has already suffered at the lack of involvement with other kids her age ....I appreciate your advice and I'm grateful for you pros and cons ....it's an emotional roller coaster for us at the moment ...as I know my daughter will suffer in the other country in terms of development and access to health care system ...she needs to remain here....I'm damed if I do and I'm damed if I don't ....we are so lost at the moment I hope you understand.

[Rayman2010]

You say if we act quickly ...but visa expires in 4 weeks time...there is no time for someone to learn enough English to pass the IELTS test ...the intension has always been to return to the country we even have the flights booked....but the changes in circumstance have instigated a different thought process ...such as pregancy my wife coping on her own and the positive impact the uk has had on my daughter since she came here....it was never the intension to stay ...the pregnancy has changed everything in reality ....but also forcing my daughter to leave her country at no fault of her own.

[Obie]

I think it may help for us to distinguish between person view and the law.

There are many things about the law that I like, and many things I do not like. However I have to provide an accurate reading of it to the best of my conscience.

If it is the case that the Law provides for a person to apply from within the UK , then we need to follow the law. Our views in that respect is wholly immaterial. It will be up to parliament to make the necessary amendments subjet to the limits imposed by the UK international obligations, ie ( EU jurisprudence or ECHR obligations) .

Fact is OP's wife will not fall within the framework of the rules for as long as she is on a visitors visa. Facts and law.

She may qualify if not a visitor, and in all the circumstances, it is considered unreasonable to expect their British child to leave the UK. That is fact and law. They may consider it is reasonable for her to go, having regards to the domestic law and policy.

We have to bear in mind that whatever views you take, the law is not there to encourage illegality, but to protect the rights and interest of a British child and ensure that his or her interest is not jeopardised.

[Wanderer]

I about to put my daughter into play group ...she has already suffered at the lack of involvement with other kids her age ....I appreciate your advice and I'm grateful for you pros and cons ....it's an emotional roller coaster for us at the moment ...as I know my daughter will suffer in the other country in terms of development and access to health care system ...she needs to remain here....I'm damed if I do and I'm damed if I don't ....we are so lost at the moment I hope you understand.

It's infinately better for everyone involved if you do the decent thing and abide by the immgration rules of your adopted country and apply from the 'other' country and not abuse the terms under which the visit visa was granted, the very terms imposed to prevent this sort of thing happening.

It's easier for everyone really. Whats a few weeks inconvience against years of expense, worry, legal battles and no guarantees?

[Rayman2010]

I acknowledge what you say and agree ...however The official immagration a visa help line that I have spoke to on the many occasions have said that we would have to apply for discretionary leave on FLR (0) and yes her application will be considered ...in the event that it is refused the my wife will have 28 days to leave the country with no significant effect on future applications ....so if there is a chance that this could be successful then surley it would be something that we should take....further more as the application is been processed and the timescales that involves such cases ...would mean she would.have additional time to learn english whilst in the uk and under go her IELTS test ....and if she passes and the application files then she can go back and apply for spouse visa....but if the application is successfully then ...the positive outcome is that she learnt English in the process....?

[Obie]

An reasonable individual will understand the difficult position you are in.

Just out of interest, how was your wife able to convince them that she will return to her home country.

Did she mention ties to her home country like, work studies , in the light of the fact that you are settled in the UK?

Were you married at the time the visa was issued?

Do you have ancestral or familial links to the country from which she originated?