ILR refused, FLR offered, but can I "vary the application" back to ILR?

[kylelondonuk]

Hi there,

I'm looking for some advice about the possibility of varying an application to avoid paying the ILR fee twice.

The details of our case are:

• My husband attended a Super Priority appointment for his ILR application on Wednesday 29th May in Croydon

• On Saturday 1st June, we received a letter dated 30th May, stating that the ILR application was refused because the LIUK test had not been completed (we'll never understand how we spent so much time on this and still thought that taking the LIUK was for citizenship, rather than ILR, let's not get hung up on this disastrous mistake on our part!)

• The letter stated that this application was now instead being considered as an FLR application, and that we had until 14th June to pay the health surcharge of £1,000, or the FLR application would be deemed invalid.

• My husband now has his LIUK booked for Wednesday 5th June. Assuming he passes, there are Super Priority appointments available on Thursday 6th June back in Croydon.

• Whilst filling out a new online application, we noticed the first question about whether you have any outstanding applications that have not yet received a decision, which led me to read up about varying an application, which has now led me here.

My questions are:

• Does anybody have any experience attempting something similar to this?

• Do people think it could be argued now that my husband has a "pending FLR application which has not yet received a decision", and that by re-submitting an ILR application and attending a Super Priority appointment before the 14th June, we could reasonably say that this new application "varies" the FLR application, thereby being eligible for a refund of the first £3,200?

• If yes, I assume the reference number we should provide on the online application (once we say that there IS an outstanding application without a decision) is the Case ID on the letter we received? We don't have any other references from the first online application

• If yes, does anybody have any guidance about whether we should include some explanation in a cover letter about all of the above, and about our expectations for a refund, or should we just let the case worker review the two applications?

Thanks in advance for any guidance anybody can give. I can also upload the letter from the case worker explaining the rejection if that would help.

Kyle

[CR001]

When does his current visa expire or has it already expired??

[kylelondonuk]

When does his current visa expire or has it already expired??

5th July 2019, so we still have a month or so on that.

[CR001]

Ignore HOs offer then as it will likely put him on a new 10 year flr path.

Simply do the test and reapply for ILR when he meets the requirements.

Understandably a big mistake, but unclear how you missed this question in the online form.

[kylelondonuk]

Ignore HOs offer then as it will likely put him on a new 10 year flr path.

Simply do the test and reapply for ILR when he meets the requirements.

Understandably a big mistake, but unclear how you missed this question in the online form.

We didn't miss the question, we answered No and assumed that some people had sometimes had another reason to have taken the LIUK test early, for reasons we didn't know about. Since the application doesn't show any kind of message or warning when you choose No, we didn't think any more about it. Anyway as I said, disastrous error on our part.

Do you have any advice about my questions regarding varying the FLR application back to ILR, since my husband should be able to attend a new appointment on Thursday 6th June, after passing the LIUK test on Wednesday?

Thanks

[CR001]

In order to secure an appointment at ukcvas, you have to complete the ILR form again and pay the fees again.

The letter states ILR has been refused, thereby loss of the fee already paid.

[kylelondonuk]

Hi,

The application wasn't quite "refused", it is being considered as an FLR application, and is awaiting payment of the health surcharge. Let me paste you the relevant portion of the letter below (I've highlighted in bold the important bit):

"We have considered your application and you do not qualify for indefinite leave to remain. The reasons for this are set out in Annex A to this letter. However, we are satisfied that you would fall to be granted limited leave to remain of 30 months on the basis of D-ILRP.1.2 of Appendix FM of the Immigration Rules, were you to make a valid application for such leave. The detailed reasons for this are set out in Annex A. In these circumstances, in accordance with the consent you gave on the application form, we are now treating your application as an application for limited leave to remain."

So my question is: if we ignore the request to pay for £1,000 (we agree completely with you that that's a terrible idea) and instead submit a completely new ILR application online, AND use this Case ID to indicate that we have an "outstanding application without a decision" (which is true, this FLR application) do you think they would consider this second application as a "variation" to the outstanding FLR application, and agree to change it to an ILR application, now that we have the LIUK sorted? If they do that, it sounds like the first fee will eventually be refunded.

Thanks again

[dan883]

So my question is: if we ignore the request to pay for £1,000 (we agree completely with you that that's a terrible idea) and instead submit a completely new ILR application online, AND use this Case ID to indicate that we have an "outstanding application without a decision" (which is true, this FLR application) do you think they would consider this second application as a "variation" to the outstanding FLR application, and agree to change it to an ILR application, now that we have the LIUK sorted? If they do that, it sounds like the first fee will eventually be refunded.

The case worker might use their discretion to agree with you but again they do not necessarily have to agree with you. If you are desperate for ILR then its best to make another application. Or else you can risk your ILR and settle your application for FLR.

[kylelondonuk]

So my question is: if we ignore the request to pay for £1,000 (we agree completely with you that that's a terrible idea) and instead submit a completely new ILR application online, AND use this Case ID to indicate that we have an "outstanding application without a decision" (which is true, this FLR application) do you think they would consider this second application as a "variation" to the outstanding FLR application, and agree to change it to an ILR application, now that we have the LIUK sorted? If they do that, it sounds like the first fee will eventually be refunded.

The case worker might use their discretion to agree with you but again they do not necessarily have to agree with you. If you are desperate for ILR then its best to make another application. Or else you can risk your ILR and settle your application for FLR.

Hi Dan, thanks for your reply. We wouldn't be risking ILR with this new application (it should be approved either way, as when you vary an application they take the new application as final and it replaces all previous ones). We definitely wouldn't do this if there was a chance of getting nothing at all... If you know anything about the risks of varying an application, please do let me know. We have assumed that, at worst, ILR will be approved as a brand new application and we've paid twice; at best, it will be approved as a variation to this "auto-created" FLR application by them, and we'll get a refund of this first amount.

Here is their guidance on variations: https://assets.publishing.service.gov.u ... .0-ext.pdf

[kylelondonuk]

Hi again Dan,

On page 17 of that document, they state:

If an applicant submits an application to vary, but a decision has already been made
on the original application, you must write to them and tell them that the application
will be treated as a new application.

So basically, if they disagree that this new submission is a variation, they'll just treat it as a new application, so we wouldn't risk losing ILR. They have guaranteed in the letter that the application for ILR was fine except for this one error, so we are confident the new application with the LIUK test will be approved.

[CR001]

Ignore HOs offer then as it will likely put him on a new 10 year flr path.

Simply do the test and reapply for ILR when he meets the requirements.

Understandably a big mistake, but unclear how you missed this question in the online form.

We didn't miss the question, we answered No and assumed that some people had sometimes had another reason to have taken the LIUK test early, for reasons we didn't know about. Since the application doesn't show any kind of message or warning when you choose No, we didn't think any more about it. Anyway as I said, disastrous error on our part.

Do you have any advice about my questions regarding varying the FLR application back to ILR, since my husband should be able to attend a new appointment on Thursday 6th June, after passing the LIUK test on Wednesday?

Thanks

As you failed to meet the requirements, the ILR app is a non event now. HO did not have to consider tha application as a flr one either, it is offered at discretion. Note that the letter is a standard template and usually beneficial to those whose visas have already expired and to prevent them becoming an overstayer.

HO will only consider the flr once you pay the £1000 IHS. Any potential refund is likely to be only the difference between ILR and flr fee and not a full ILR refund.

If you don't pay the £1000 for flr to be considered, it doesn't change the fact that ILR was not considered and you will lose the fee.

You would have to complete a new ILR form and pay fees again to be able to submit it and make a ukcvas appointment.

[kylelondonuk]

Yes, we are submitting a new ILR application and paying the fee again on Thursday, no matter what. I was only here to ask about whether we should attempt to get this treated as a variation to the FLR.

Thanks for your help - I'll explain the situation in a cover letter, but assume the application will just get treated as brand new, with no chance of a refund.