Spouse visa; Tricky situation ILR 5years or 10 yrs long residence

[hham1224]

My wife came to the UK in June 2012 as my dependant. In August 2013, her extension was refused with the right of appeal. On 20 April 2015, her appeal rights were exhausted.

On 15 May 2015, we applied for the same spouse visa under human rights, which was refused again with the right of appeal. We went through all appeal process, and finally, she got a visa under five years route in November 2018. From 2013 to 2018, HO messed her case and eventually accepted their admin errors in court in 2018.

We have following complications;

ILR 10 years long residence

She had a history from 2013 to 2018 where she did not had any visa. I am aware that time spent on appeal process is considered lawful but my concern is those 35 day (20 April 2015 to 15 May 2015) where her appeal rights exhausted and we made a new application.

5 years spouse visa

My wife got her five years visa 28 March 2019 to 8July 2021. We extended her visa and she got extension and her current visa expires in 24 Feb 2024. Her five years completes in 27 March 2024. This means she has more than 30 days to her five years.


Can someone advise me which route is good for her?

[secret.simon]

I am aware that time spent on appeal process is considered lawful

Are you sure it was appeal and not judicial review?

Time on appeal and on administrative review is considered lawful, but only under certain specific conditions (only if the application was made while the person had leave, etc). Time on judicial review is not.

If you have used a lawyer, check with the lawyer about the precise legal nature of the proceedings.

Also a fuller detailed history in month/year (period of first visa, date of first application and refusal, date of first appeal/admin review/judicial review, etc) would help us guide you better. Was there a court order in the case? If yes, can you reproduce it below, taking out all personally identifiable information such as names, addresses, etc)?

I think it would be wiser to focus on the five year ILR approach.

[hham1224]

Thanks for your response.

It was the “right of appeal” in both refusals. We never went for any judicial review.

I am not sure what the rules are now on legal stay when the statutory appeal is pending, but in those days, any time spent on statutory appeal was considered legal stay even if the leave to remain ran out. In those ten years, my main concern is those 35 days.

I think I have to dig into what visa we applied for initially, as I do not remember, but it looks like we could have applied the FLRM initially and then FP. In FP, HO saw their admin errors and accepted them before the judge, I.e. Refusal based on not fulfilling the requirements of the English language when my wife had a master's degree taught in English and HO did not accept my salary when, then, my salary was well over the threshold.

My couple of Qs are;

In 10 years ILR, does those 35 days (appeal right exhausted, and made new application) create a problem?

In 5 yrs route, her five years complete on 27 March 2024, but her current leave expires on 24 Feb 2024. Does applying on 23 Feb 2024 under a five-year route create a problem when she has over 30 days to go on her five years?

[secret.simon]

In 10 years ILR, does those 35 days (appeal right exhausted, and made new application) create a problem?

It may. It depends on the precise sequence of events, which is why we would need a fuller history to advise you on that point.

In 5 yrs route, her five years complete on 27 March 2024, but her current leave expires on 24 Feb 2024. Does applying on 23 Feb 2024 under a five-year route create a problem when she has over 30 days to go on her five years?

If her five years complete on 27th March, she can apply on 29th February 2024 (28 days before). Others here may be able to advise more fully on how to bridge the gap between the 23rd and 29th February. To me, this appears to be the safer approach.

[hham1224]

It may. It depends on the precise sequence of events, which is why we would need a fuller history to advise you on that point.

If her five years complete on 27th March, she can apply on 29th February 2024 (28 days before). Others here may be able to advise more fully on how to bridge the gap between the 23rd and 29th February. To me, this appears to be the safer approach.

Also, I forgot to mentioned, my eldest daughter (British) is 8 years old. Can my wife apply ILR based on this??

Also, for English language, on the safer side my wife booked her B1 English test at Trinity College and passed with distinction although she had master’s degree. The test date was in July 2021. Can we still use the same Test?

[meself2]

Can my wife apply ILR based on this??

No - having a British child isn't an instant route for ILR.

The test date was in July 2021. Can we still use the same Test?

If she used it in another application and it was accepted by HO as proof of English, yes; otherwise, they are valid for 2 years, so no.