ILR refused for my wife!

[kna872]

Hi,

Today I received the much anticipated UKBA letter stating that my wife has been refused her ILR.

Before sending her application I had sought help from this forum.(http://www.immigrationboards.com/viewto ... 849#586849)

I had also contacted UKBA on 4 different occasions , stating my circumstances, and was repeatedly told that my wife indeed qualifies for ILR and I should apply straight away.

Case Background:

Nov 2009 She enters UK as HSMP dependant
Jan 2010 I switch to Tier 1, n her visa changed to Tier 1 dependant
12 April 2011 I get ILR under 10 yrs rule
15 Sept 2011 wife obtains Spouse visa as she is told her Tier 1 dependant visa is not longer valid after my ILR. Also, the period from 12 April 2011 to 15 Sept 2011 will not be counted towards qualifying period.

In January 2012 I contacted UKBA to know the time duration when my wife could apply. I was told that she could apply after completing 2 years as my wife under section 287(i)(d). I also posted a query on this forum,and was advised the same.
Therefore, after being satisfied that she indeed qualifies, I sent her application in June 2012.

Grounds for Refusal:

Requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom
287. (a) The requirements for indefinite leave to remain for the spouse or civil partner of a person present and settled in the United Kingdom are that:
(i) (a) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of a person present and settled in the United Kingdom; or
__(b) the applicant was admitted to the United Kingdom for a period not exceeding 27 months or given an extension of stay for a period of 2 years in accordance with paragraphs 295AA to 295F of these Rules and during that period married or formed a civil partnership with the person whom he or she was admitted or granted an extension of stay to join and has completed a period of 2 years as the unmarried or same-sex partner and then the spouse or civil partner of a person present and settled in the United Kingdom; or
__(c) was admitted to the United Kingdom in accordance with leave granted under paragraph 282(c) of these rules; and
__(d) the applicant was admitted to the UK or given an extension of stay as the spouse or civil partner of a Relevant Points Based System Migrant, and then obtained an extension of stay under paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here; or

“As stated above, in 19 August 2011 you submitted an application for leave to remain as the spouse of a person present and settled in the UK.our records confirm that you were granted leave in accordance with para 281 to 286 of the rules on 15 Sep 2011. Therefore you have not completed a period of 2 years as the spouse of the person who is now present and settled. As a result you cannot meet the requirements of paragraph 287(a)(i).
You are not entitled to appeal this decision. Section 82 of the Nationality Immigration and Assylum act 2002 does not provide a right of appeal where an applicant still has leave to enter or remain in the UK. “

I am quiet upset with this answer. They haven't taken into consideration the period she spent in UK as my tier and hsmp dependant.

I would really appreciate if fellow members could please help me with this refusal.

Thank you.

Ali

[geriatrix]

The refusal is clearly unlawful.

Options:
1. Complain to the UKBA and demand reconsideration as the caseworker has made an error in interpreting the immigration rules.
2. Send a letter before claim for judicial review. The letter itself should be sufficient to bring UKBA to their senses and have the refusal overturned.

[z18runway]

The refusal is clearly unlawful.

Options:
1. Complain to the UKBA and demand reconsideration as the caseworker has made an error in interpreting the immigration rules.
2. Send a letter before claim for judicial review. The letter itself should be sufficient to bring UKBA to their senses and have the refusal overturned.

Cant the OP use Pre action Protocol ?

[geriatrix]

Cant the OP use Pre action Protocol ?

Isn't letter before claim part of the pre-action protocol process?

[vinny]

Ask for a reconsideration based on the correct rules.

[z18runway]

Cant the OP use Pre action Protocol ?

Isn't letter before claim part of the pre-action protocol process?

i didnt looked into your reply properly, sorry for that

[kna872]

Hello All,


I am grateful for the replies. Is there any template that I should follow for both complaint and judicial review? Can I ask for both at the same time?

I there anyway I attach the actual refusal letter on this forum.
Is it worth pursuing it myself or would anyone recommend no win no fee immigration solicitors?

Regards,
Ali

[geriatrix]

Can I ask for both at the same time?

Yes.

[kna872]

Can I ask for both at the same time?

Yes.

Thank you Sushdmehta; here is what I have updated the above question.



I there anyway I attach the actual refusal letter on this forum.
Is it worth pursuing it myself or would anyone recommend no win no fee immigration solicitors?

[kna872]

The refusal is clearly unlawful.

Options:
1. Complain to the UKBA and demand reconsideration as the caseworker has made an error in interpreting the immigration rules.
2. Send a letter before claim for judicial review. The letter itself should be sufficient to bring UKBA to their senses and have the refusal overturned.

I have just found out that I can not complain against this decision as my wife has been issued with a letter saying she doesn't have the right to appeal against it. The link provided above brings me to this page where it says that the procedure to complain would be explained in the letter but there is no such thing mentioned on the letter.

Ali

[geriatrix]

Your wife cannot appeal! That doesn't stop her from complaining and demanding reconsideration!!

Do so by writing a letter to UKBA, if you are unable to figure it out how you may do so from what is written in the refusal letter. Alternatively, consult a competent solicitor.

[kna872]

Your wife cannot appeal! That doesn't stop her from complaining and demanding reconsideration!!

Do so by writing a letter to UKBA, if you are unable to figure it out how you may do so from what is written in the refusal letter. Alternatively, consult a competent solicitor.

Dear Sushdmehta,

Thank you for your response. As you can appreciate that I have just almost lost a huge amount in application fee for my wife and being a man of limited means it is a little daunting task for me hire a solicitor unless its a no win no fee one. I would be grateful of the suggestions about any such lawyers etc.


This is my first application during the last 10 years that has been refused. I even wrote a covering letter to the case worker giving references to the caseworker of my telephone conversations that advised me to go ahead with the application and despite that I get this result.


I am fairly capable of writing and pursuing this matter with reasonable guidance. I have so far looked at the links that you provided and would be grateful if you would please guide me to the relevant templates if any, any addresses where I should be sending these letters to. both electronic or non electronic.

Regards,
Ali

[kna872]

Hello All,

I have written the following sample letter which I would use to send to UKBA to reconsider our case and also plan to post it to judicial review so that they know that they have their copy.

This is where I would require your esteemed opinion.

1) Do you think this letter would work as both letter for reconsideration as well as Letter before claim?
2) Are there any pertinent issues that I should omit or add?

As always I shall be grateful for the advice.



A LETTER BEFORE CLAIM CASE ID: ::::::::::::::::

1. To
:::::::::::::::: ( LIVSET 3)
UK Border Agency
Managed Migration
Department 6
PO BOX 306
Liverpool
L2 0QN

2. The claimant

::::::::::::::::::::::::::

3. Reference details

UKBA Case Id : :::::::::::::::
Case Worker’s Name : :::::::::::::::

4. The details of the matter being challenged

The matter is regarding the eligibility for applying for the Indefinite Leave to Remain as the spouse of a person present in the UK.

I applied for indefinite leave to remain in the UK on 22 June 2012. I arrived in the UK on 27 November 2009 and was granted leave to enter as a dependant partner until 25th January 2010. On 2 January 2010 I submitted an application for leave to remain as a dependant partner of Tier 1 Highly Skilled Migrant and was granted leave until 27th January 2013. My husband obtained indefinite leave to remain under the 10 year long residency rule in April 2011 and upon advice of UKBA I applied for a spouse visa and was granted on 15 September 2011 under section 281 to 286 of the immigration rules.

The point of challenge is the length of time that I spent under the PBS (Point Based System) dependent to be counted towards my ILR (Indefinite Leave to Remain). It is this period which was not considered during my recent application for ILR. I have got this confirmed by the official UKBA advice line, the details of which are jotted down below.

I have contacted UKBA on several occasions to seek advice regarding the time duration to apply for indefinite leave to remain. On all occasions I had been told that I can apply for indefinite stay after I have completed a duration of 2 years since I entered UK as a partner of my husband under section 287(a)(i)(d). The actual section reads as follows and ironically is also mentioned in the refusal letter:
“__(d) the applicant was admitted to the UK or given an extension of stay as the spouse or civil partner of a Relevant Points Based System Migrant, and then obtained an extension of stay under paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the spouse or civil partner of the person who is now present and settled here;”
Below are the two references of the calls I made to UKBA which confirmed that I can indeed apply for indefinite leave to remain and my period under the PBS dependent would be counted towards my two years qualifying period for my ILR application:
Below are the references:
1. Spoke to ::::::::: on 12/08/2011 at 12.41 pm
2. Spoke to :::::::: on 31/01/2012 at 10.25 am.
3. Spoke to :::::::::: on 29/10/2012 at 3.25 pm. This person confirmed that the case worker had made a mistake and that I should complain to UKBA to reconsider the case.



5.The issue

I received a letter of refusal from UKBA on 26 October 2012. I was refused indefinite leave to remain on the ground that I have not completed two years as the spouse of the person who is now present and settled in the UK and as a result I cannot meet the requirements of Paragraph 287(a)(i).

The case worker has clearly made an error of negligence in refusing my application. I clearly fulfil the criteria outlined in section 287(a) i (d) as I;
• Entered the UK as the spouse of a Relevant Point Based System Migrant in 27 Nov 2009 and
• Obtained an extension of stay under paragraphs 281 to 286 of immigration rules in 15 September 2011(this has also been confirmed by your refusal letter) and
• Have completed a period of more than 2 years as the spouse of a person who is now present and settled here. The details of this qualifying period are dissected below;

Granted Visa Duration Visa Type Qualifying Period towards ILR application as per 287 (a)(i)(d)
From 27th Nov 2009 to 25th January 2010 HSMP Dependent 2 months
27th of January 2010 to 27th January 2013 Tier 1 dependent From January2010 – April 2011 = 15 months approx.
15th September 2011 to 15th September 2013 Spouse Visa From 15th September 2011 to 22nd June 2012 = 9 months
Total Qualifying period Including time spent under the point based system as stated in the immigration rule 287 (a)(i)(d) please note that I already qualify under 281 – 286 26 months = 2 years 2 months approx.


6. The details of the action that the defendant is expected to take
I would be greatly obliged if the following options are taken into consideration as a remedial action.

1. Please consider my application under 287(a) i (d) and grant me ILR from the date I first applied for ILR. There are many examples of similar cases in the past where the duration under PBS has been considered for a spouse ILR application.
2. I am expecting a baby, the proof of which is attached. Next year I would have two children to take care off, we are single earner family and the amount in fees is far too much for us to bear. So please also consider my application on the compassionate ground.
3. If I do not qualify for the above, then please return my full fees for this application as I have been advised wrongly by UKBA official advice line, the details of which have been provided above and the records can be obtained of those calls. I plan to use those calls in my judicial review. I would like you to include the recordings of those calls in your reply if my complaint is being rejected.
7. The details of any interested parties
1. UKBA
2. Claim before letter to Judicial Review
3.
8. The details of any information sought
1. I request for a fuller explanation of the reasons for the decision that is being challenged, and as I plan to ask for judicial review as I have been advised by the lawyers, I would appreciate a much detailed reply.
2. If my complaint for reconsideration is being refused again, I would need the recordings of the phone calls that have been mentioned above so that I could use that in my judicial review.
9. The details of any documents that are considered relevant and necessary

Part 8 of the immigration rules of UKBA, specifically section 287(a)(i)(d). Also available at http://www.ukba.homeoffice.gov.uk/polic ... _partners/
1. Pregnancy document
10. The address for reply and service of court documents

:::::::::::::::::::::::::::

11. Proposed reply date

16th of November, 2012

[altfhn]

Dear Ali

I am so surprised to hear your wife's news. its completely unlawful decision. have you mention the rules 287(a)1(d) in your cover letter.

I am also same situation as you. I got ILR under 10yrs rule and wife was PBS dependant then on FLR(M)leave now planning to apply for ILR on SET(M).

I have emailed to UKBA regarding the above rules, they clearly replied that time spent as PBS dependant counts towards to qualifying period for ILR on SET(M).

So let me know if you need this clarification for your ref:

Thanks
altfhn

[altfhn]

Dear Ali

I am so surprised to hear your wife's news. its completely unlawful decision. have you mention the rules 287(a)1(d) in your cover letter.

I am also same situation as you. I got ILR under 10yrs rule and wife was PBS dependant then on FLR(M)leave now planning to apply for ILR on SET(M).

I have emailed to UKBA regarding the above rules, they clearly replied that time spent as PBS dependant counts towards to qualifying period for ILR on SET(M).

So let me know if you need this clarification for your ref:

Thanks
altfhn

[kna872]

Dear Altfhn,


I would be so grateful if you could forward that clarification to me, i have sent you my email address through PM. I did mention that in the cover letter but I think the caseworker never opened the cover letter.

Regards,
Ali

[themonsoonhunter]

Hi kna872,

We are in the same situation. My wife's visa was refused citing the same reason. She sent a simple letter requesting to reconsider based on 287(a)(i)(d). My wife got call today from the caseworker admitting his mistake and he'll be sending letter confirming that in due course. Fingers crossed.

Thanks all Gurus here for suggestions and guidelines. I find immigration lawyers less knowledgeable then you people.

[kna872]

Oh that is a wonderful news. I congratulate you. It gives me a lot of hope. I did get in touch with lawyers who say that they have 10 years of experience etc, who advised me that I have little chance. I am ever so indebted to the people on this forum.

I am just waiting for altfhn and then I shall email them.

By the way, did you email UKBA or you wrote to them? Do you think I can refer to your case and also would you be able to provide me with the addresses electronic or non electronic where I should send them the above letter, just to be on the safer side.

It would also be helpful if you could spare the time to look at my letter and give your opinion on it.


Regards,
Ali

[themonsoonhunter]

I directly wrote to the caseworker, you'll find all details in the refusal letter. I would recommend writing a simple letter requesting to reconsider citing the point applies here. And give him/her 15-20 days to come back. This looks like a mistake by (may be) comparatively new caseworker.

As far as immigration lawyers are concerned, all of them told me not to do anything as the decision was lawful. So I don't trust them any more.

[innocentdevil]

quite scary stories I hear. I will open up another thread about my wife's ILR which should be due in july 2013 but just to double check with peeps over here.

keep us posted on how you get on.

[kna872]

Thank you guys,

I already have written the letter, I am going to annex some exhibits to strengthen my case. Shall keep you posted.

I am grateful to all of you regardless.

Thank you.


On my way to the post office.

Ali

[kna872]

I received the following reply from the same case handler. I am not sure what to make of it. Is it a time delaying tactic? Someone else in the same situation received phone call who confirmed that the case handler has made a mistake. Am I dealing with an egoistic.............?

Following is the full letter. What should be my next line of action?

Dear XXXXXXXX

Pre Action Protocol – Letter Before Action

Re: XXXXXXXXX

Thank you for your letter dated 31st October 2012 with regard to the refusal of your application for indefinite leave to remain, Your representations have been considered in line with the procedure commonly known as ‘’the Pre-action Protocol before Judicial Review’’.

I have reviewed your case against your representations, and I am pleased to confirm we shall reconsider your application forthwith.

I can not indicate what the outcome of this reconsideration will be at this stage, however you shall hear from us within the next 3 months with regards to this reconsideration.

Your sincerely,
XYZ

[kna872]

reply any one?

[wpilr_nov12]

Probably waiting would be your best bet since you have been told of the latest progress with your wife's appli

[carbon]

I am in similar situation and need help. I received ilr early June 12 as tier1+ Hsmp. Applied for wife after one week and today received a refusal letter similar to mentioned in above posts. Difference is my wife was not on flr m before we applied her ilr as we were advised that as long as we apply within 28 days of my ilr she does need to change to flr m. We applied through checking service too to ensure we meet all requirements.Now I am confused as to which of options below i should chose:

1. Apply flr m and then wait 2 years before ilr
2. Request for review as we are married for 7 years and she been with me in uk as dependent for last 4 years
3. Apply for ilr again under new rules without applying flr m