ILR application from 3years discretionary leave to remain

[oishola77778]

Urgent advice will be appreciated.I am a non eu national married to a British National,we have been married now for 4 years,I applied for FLRM in 2008 but was granted 3 years discretionary leave to remain for entry clearance purposes.I have 3kids from my marriage and they are all British citizen because my husband is British,my discretionary leave will expire by august 2012 and instead of getting another 3years discretionary leave to remain is it not possible to apply for indefinite leave to remain based on marriage to British citizen and living together for over 4years?is it possible to make such application from the UK?I have passed the life in the UK exam and even passed Toefl.I work here in the UK as an engineer and my husband is a doctor.is such application possible in the UK or do I need to go and submit that from abroad?please advice. Thanks

[Lucapooka]

instead of getting another 3years discretionary leave to remain is it not possible to apply for indefinite leave to remain based on marriage to British citizen and living together for over 4years?

No. You are currently outside the scope of the normal immigration rules and can't switch into a category of leave within those rules, unless it were ILR under a long-residence category (10 or 14).

[geriatrix]

You may apply for settlement visa from outside the UK. Settlement visa is "limited" leave", not "indefinite", issued for 27 months. Under current rules (which may change in the near future), you may then be eligible for settlement after completing 2 years in the UK from the date of your entry in UK as spouse of a British citizen.

Alternatively, you may apply for extension of your discretionary leave and then apply for settlement after you have completed 6 years in UK under discretionary leave.

[oishola77778]

I assume you are missing out something vital in this situation,if I submit a settlement application from outside the UK,I should definately be granted Indefinate leave to enter based on the fact that I have now completed 4years of marriage to a British national and we have lived together for even 6years with 3 kids all British citizen.According to the rule,if i submit a spousal application i will automatically be issued ILE based on my circumstance and i have also passed the Life in the UK examination alongside with the TOEFL.My initial question was to confirm if there is anyway this could be achieved within UK considering my work and do not know how long the application will take to be processed from abroad but i think it is obvious not possible within the UK.I will possibly arrange travelling back home to submit the application before my 3 years discretionary leave to remain expire in August.

[geriatrix]

ILE is only issued when an applicant applying for settlement visa:
1. has been married for at least 4 years, and
2. has lived outside the UK with the British / settled spouse for at least 4 years (preceding such application), and
3. has passed KOL.

282(b) which is subject to 281(i)(b) that includes the following:

(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and

[Loveislovely]

I assume you are missing out something vital in this situation,if I submit a settlement application from outside the UK,I should definately be granted Indefinate leave to enter based on the fact that I have now completed 4years of marriage to a British national and we have lived together for even 6years with 3 kids all British citizen.According to the rule,if i submit a spousal application i will automatically be issued ILE based on my circumstance and i have also passed the Life in the UK examination alongside with the TOEFL.My initial question was to confirm if there is anyway this could be achieved within UK considering my work and do not know how long the application will take to be processed from abroad but i think it is obvious not possible within the UK.I will possibly arrange travelling back home to submit the application before my 3 years discretionary leave to remain expire in August.

Hi!

If I were in the position you are in, I would go for another DLR knowing that, at the end of that visa I will be eligible to apply for ILR..... I would not risk losing my job, and being out of wages for as long as.... please think this thing through carefully, I know you may want the ILR alot, but think about the pro's and con's, try not to make a decision you may regret for sometime. Good luck

loveislovely

[oishola77778]

Thanks guys,but apart from wanting to get off the hook of continuous immigration worries,I am putting unnecessary immigration stress into consideration when fully entitled,if I pay for discretionary leave again I will have to pay in another 3 years again when making ILR application who knows how much this will cost by then,I do not have any reason to fear refusal from abroad because that way it will be subject to appeal which I believe UKBA will not want based on the fact that my marriage is already acknowledged hence the need to protect my article8 by issuing discretionary leave to remain,mind you any application for entry clearance abroad after been considered under immigration rule then progress to be considered under human right which is already protected in the UK.If I get my settlement application granted from abroad then am entitled to naturalization immediately on return as I have lived here for 5years and the requirement for spouse of British National is usually 3years.As for requirement to have lived with British spouse outside UK,I guess the proportionality is based on been married for 4years and been able to prove could habitation for the 4years,as long as you are making the application outside UK then it is considered as you have lived together anywhere as long as you have the proof.considering my work,I will be making arrangement for 5weeks holiday to cover for this,better now than never as I now feel ashamed to still be in immigration net.3kids and husband all British and expecting 4th by December,each time we have holiday say to America they have to always worry about mum getting her visa,worst bit is because I have limited leave my work need to take copies of my passport every year which is annoying.

[Greenie]

You still seem to misunderstand that you don't qualify immediately for settlement by virtue of having been married to a British citizen for 4 years. As explained by Sushdmehta, you only qualify for ILE if you have been married for 4 years and living together outside of the UK for that time. It is not a case of proportionality - the rules are clear. You need to have been living together outside the UK to be granted ILE under the rules.

Applying for entry clearance under the immigration rules, if successful will result in you being granted 27 months limited leave to enter, and you will then have to pay to apply for settlement after two years. You will save a year but you will not save any money (in fact this is more expensive as a spouse visa from abroad is more than an FLR(O) application.

If you had wanted to avoid having to spend 6 years before qualifying for ILR then a better option would have been to apply for entry clearance earlier rather than waiting until the end of your first 3 year's DL.

[Lucapooka]

see also:

http://en.wikipedia.org/wiki/Paragraph

[asim72]

You asked if gaining ILR the way you think you can gain is possible or not.

Members have explained that it is not possible under the immigration rules.

You have then given a counter argument (based on whatever you think immigration rules mean) and concluded that you will be eligible. But I wonder why you asked on the board anyways when you were sure it is possible.

Best is just to put your plan into action now.