ILR application decline on 5yr route spouse Visa - Length of time spent IN the UK

[DaveKen]

My wife got her initial spouse visa in January 2016 while she lived abroad. She could not travel to the UK immediately because she had had a baby whilst still waiting for that visa application to be decided.

As soon as her visa was issued, we applied for our daughter's UK passport. My wife's passport was required as part of the evidence when applying for our daughter's passport, so as soon as UKVI returned it to us, we surrendered it to the UK passport office. It took 9months before my daughter's UK's passport was issued and my wife receiving her one back. This meant that my wife did not travel to the UK until 9months later from when her initial spousal visa was issued.

Fast forward to 5yrs later: It is now 5years since her 1st spousal was issued. We have attempted to apply for her ILR -5yr route but this has been declined on the grounds that she has not spent the required 5yrs IN the UK. She is being advised to apply for an extension of the spouse visa to make up for the shortfall in her 5years of residence in the UK

I have read somewhere that "unlike most visa routes, partner visas do not have any specific residence requirements or prescribed limits on the number of days of absences from the UK."

Was it a correct decision for Homeoffice to decline my wife's ILR application

[vinny]

Unfortunately, they are correct. Her qualifying period for ILR started when she initially entered on her spouse visa. Her absences from the UK after initial entry shouldn’t normally affect her qualifying period, unless leave lapses.

Early SET(M) ILR applications are tricky. Fortunately, they appear to be trying to keep her in the 5-year qualifying period when D-ILRP.1.3. (IHMO, unreasonably) may place her on the 10-year path.

Extend on FLR(M).

[AmazonianX]

My wife got her initial spouse visa in January 2016 while she lived abroad. She could not travel to the UK immediately because she had had a baby whilst still waiting for that visa application to be decided.

As soon as her visa was issued, we applied for our daughter's UK passport. My wife's passport was required as part of the evidence when applying for our daughter's passport, so as soon as UKVI returned it to us, we surrendered it to the UK passport office. It took 9months before my daughter's UK's passport was issued and my wife receiving her one back. This meant that my wife did not travel to the UK until 9months later from when her initial spousal visa was issued.

Fast forward to 5yrs later: It is now 5years since her 1st spousal was issued. We have attempted to apply for her ILR -5yr route but this has been declined on the grounds that she has not spent the required 5yrs IN the UK. She is being advised to apply for an extension of the spouse visa to make up for the shortfall in her 5years of residence in the UK

I have read somewhere that "unlike most visa routes, partner visas do not have any specific residence requirements or prescribed limits on the number of days of absences from the UK."

Was it a correct decision for Homeoffice to decline my wife's ILR application

UKVI made correct decision. Qualifying period starts from date of initial entry and theoretically after initial entry absences does not matter. If only she had stepped into UK for a day or so after the issuance of the spouse visa and then exit it will be a different outcome(presume the baby birth and travel document aspect probably precluded this).
It

[DaveKen]

Many thanks for the responses. It is incredibly helpful.

Please also help me with this:

In their refusal letter, UKVI offered me the option to make a new Set M application to extend my wife's spouse visa and to then withdraw the ILR with a full refund subject to a £25 admin charge.

However, this is my last option as this extension introduces an additional cost that I am trying to avoid.

As a first option, I am contemplating submitting a fresh ILR application and then withdrawing the deficient one that has been declined.

On the date I submit the fresh ILR application, my wife will have clocked 59 months and 20 days out of the 60months required on the 5-year spouse route. This calculation includes the months she has been on the 3C leave.

Does anyone know if my first option is likely to work?

[zimba]

What you are saying is odd. If they are offering a refund and asking you to vary using FLR(M), then her ILR application is still pending and if she is NOW eligible then ILR should be granted. There is NO need for a new ILR application. What do you mean by a deficient ILR application that was declined ?? As I said it seems they have not refused her application yet.

[DaveKen]

This is their text verbatim:

"As you entered the United Kingdom on 25 October 2016 you have not done enough time on route and also the fact you applied over 5 months before completion of the
60 months required means ordinarily your case would not meet the requirements for
Indefinite Leave to Remain. On this occasion, though the Home Office would like
offer you the chance to make another application to extend your leave within the
United Kingdom. In order to do this we will need you to resubmit a new spouse
application.

As your last visa expired on 17 May 2021 you are currently covered by 3c leave. If
you withdraw your current application with us before submitting a new one your 3c
leave you will be cancelled. This could have a negative impact on your future
applications with us. You would also become an overstayer and may be liable to be
removed.
If you chose to submit another application please inform us and we will get your
current application withdrawn and refunded. You will receive a full refund minus a
£25 administration fee should you choose to withdraw. Please take some time to
weigh up your options and confirm how you would like to proceed within the next 10
working days by sending an email to the following email address"

However, as I noted in my earlier post, Where we are today, counting from 26th October 2016 to 23 October 2021(which is my last day for responding to UKVI) my wife will have accrued the required 60months (short by 3 days). I would have expected UKVI to see this fact and to go ahead and grant the ILR. However, instead, they are requiring me to submit a new spouse visa as you can see from their notes above. This is why I'm wondering whether that is my best course of action in the circumstances.

[zimba]

First of all the application has NOT been refused. Also, any new application will be a variation of the pending ILR which is what they are alluding to regarding maintaining the Section 3C.

However, It is very clear that they have made a mistake in not considering the 28 days concession. UKVI must grant ILR as you are within 28 days of completing the 60 month qualifying period, meaning you are eligible for ILR right now. There is NO need for a new FLR(M) or a new ILR application. UKVI should have granted ILR and the careworker is wrong. You must communicate this to the UKVI

[DaveKen]

I am incredibly grateful for your time and assistance with this.

[DaveKen]

On 2nd reading, it appears UKVI is saying that
(a) the current ILR application which my wife submitted was incorrect because at the time of submitting that application she had not completed 60months in the UK needed to meet the requirements for submitting SET (M) and that in that case,

(b) the correct form she should have used is (form FLR (M))

and it appears they have followed the Validation, variation and withdrawal of applications rules which state that:

."..If an applicant has not applied on the correct specified form, you must contact them using the validation warning template ICD 4944 on Doc Gen or the IC and OOC validation reminder on Atlas telling them, (indicating what the correct form is) and give them 10 working days to submit an application on that form...

If the applicant does respond to the request and complete the correct form, the date of application is the date the earlier incorrect form was submitted..."

My questions are
If the date of the earlier incorrect application is taken as the date of the application, In submitting a new application what would be the effect of s. 3C leave accrued since the time of the incorrect application?

(a) Would it still count towards the continuous length of time spent in the UK on the spouse visa or
(b) Would it be stripped away to revert the status quo to the date of the earlier incorrect application

[zimba]

This is not the matter of applying using an incorrect form. SET(M) is the correct form for ILR under the family route. FLR(M) is used ONLY for limited leave to remain/extensions. Family rules allow caseworkers to offer alternatives to family members if they do not qualify for what originally they applied for. This is why they are giving you the options and asking you to apply for an extension using FLR(M) instead. I repeat again that they are wrong to argue she did not qualify for ILR.

Time spent under section 3C counts as lawful residence and hence for grant of ILR, the day of decision should be considered not necessarily the original application date

[DaveKen]

Thank you so much for this clarification.