Discretionary Leave to Permanent Residence

[jimkam]

I am a non-EEA citizen, married a EEA citizen in 2003, got 5 years residence. Marriage lasted at least 3 years. Officially divorced in 2009. I applied for PR one month before my 5 years residence permit expired. Application for PR was refused because I was not able to prove that my EEA ex-wife had been working in the UK continuously for 5 years since our divorce. I appealed but I lost. However, I won my Human Rights Article 8 claim. The Home Office did not appeal against that so I was given 3 years Discretionary Leave to Remain. My 3 years expires in May 2013. I have been working non stop and I have never claimed benefit. I don't have any criminal conviction and I have ties in the community. My question is:

- Can I still apply for PR in my own right via the EEA route when my Discretionary Leave expires in May 2013?
- Is there another route to PR with someone in my situation?
- Which part of the EEA regulation would I be basing my argument on?
- Which application form do I use?

Please help! I am really nervous and anxious about what the future holds. Thanks for all your help and assistance.

[Lucapooka]

Generally, you would need to extend your DL for a further 3 years.

[Kitty]

jimkam, when did you actually start living in the UK after you got married? Were you living here with your wife since 2003?

What is her nationality?

Has she worked at all since then, and if so what was the problem with proving it? Do you have contact details for her?

Do you know if she was working at the point when your divorce became final in 2009?

[jimkam]

jimkam, when did you actually start living in the UK after you got married? Were you living here with your wife since 2003?

What is her nationality?

Has she worked at all since then, and if so what was the problem with proving it? Do you have contact details for her?

Do you know if she was working at the point when your divorce became final in 2009?

I came to the UK in 2000. I went through the asylum route which was unsuccessful so I went through the EEA route by getting married in 2003. That's when the Home Office gave me 5 years residence permit. Yes I was living here with her but the marriage broke down after 3 years. I never saw her since. That's why I was unable to prove that she has been working here since our divorce. Thankfully the judge agreed with my article 8 claim.

[jimkam]

Generally, you would need to extend your DL for a further 3 years.

Thanks for your response. So does that mean that I cannot apply for PR when my DL expires in 5 months time? Can I not simply apply for PR? Instead of applying for another DL? Your insight is much appreciated.

[Gyfrinachgar]

Thanks for your response. So does that mean that I cannot apply for PR

Indeed. The permanent residency route is for EEA citizens as well as spouses of EEA citizens. Even while you were a spouse of an EEA you didn't qualify and since then you got divorced 3 years ago. You have no exploitable links to the EEA at all; therefore, you cannot use the EU immigration route.

[jimkam]

Thanks for your response. So does that mean that I cannot apply for PR

Indeed. The permanent residency route is for EEA citizens as well as spouses of EEA citizens. You are not an EEA citizen and got divorced 3 years ago, so have no exploitable links to the EEA. Therefore, you cannot use the EU immigration route.

I see thanks. So what route can I use then please? Should I apply for PR and then hope that they would use their discretion to extend my stay for another 3 years? OR - Simply plead for a 3 year extension in the first instant? Please help. I need options. Thank you so much.

[Gyfrinachgar]

Should I apply for PR and then hope that they would use their discretion to extend my stay for another 3 years? OR - Simply plead for a 3 year extension in the first instant?

As far as I see it, there is absolutely no point in applying for PR. Last time you tried, you borderline qualified and failed because the work history of your EEA spouse was insufficient (didn't exercise EU treaty rights continuously for 5 years). Now, without an EEA spouse to begin with, you have no grounds for an application via EU treaty rights in the first place. I am pretty sure your PR application would simply be refused without further consideration.

[jimkam]

Should I apply for PR and then hope that they would use their discretion to extend my stay for another 3 years? OR - Simply plead for a 3 year extension in the first instant?

As far as I see it, there is absolutely no point in applying for PR. Last time you tried, you borderline qualified and failed because of the work history of your EEA spouse was insufficient. Now, without an EEA spouse, you have no grounds for an application via EU treaty rights to begin with. I am pretty sure your PR application would simply be refused without further consideration.

Oh dear!! So what are my options then? Any case laws? I can't simply pack my bag and leave. I have a life here. I know I am asking for the impossible but you guys have proven to be invaluable to a lot of people. What would you do in my situation? Please.

[Gyfrinachgar]

Oh dear!! So what are my options then? Any case laws? I can't simply pack my bag and leave. I have a life here. I know I am asking for the impossible but you guys have proven to be invaluable to a lot of people. What would you do in my situation? Please.

As Lucapooka said, the best way is to request Discretionary Leave to Remain (DLR). Which is essentially a special kind of visa, which you can request based on your successful Human Rights Article 8 claim. However, if you won that earlier Article 8 claim based on married life, there is a considerable risk that you may be refused this time (as you not married anymore). If you are skilled or otherwise qualified, you may instead want to move to the tier based visa system.

[Obie]

If you can show evidence that your ex was in the Uk and exercising treaty rights until the divorce then you should be fine. If you can show that she was living in the UK and exercising treaty rights in the 5 years preceeding the divorce, you will still be fine.

If you cant do the above, then your option is to apply under 10 years lawful residence for PR. I gathered you are expected to have been an holder of Leave to remain over this 10 years period, and you residence card would not be counted as leave. It is worth a try.

In any event i believe you will be able to obtain another 3 years discretionary leave.

[Gyfrinachgar]

If you can show evidence that your ex was in the Uk and exercising treaty rights

He couldn't prove it in his first application. He couldn't prove that in an appeal. I seriously doubt he can prove it now - many years later and divorced.

If you cant do the above, then your option is to apply under 10 years lawful residence for PR.

Maybe I am confused now, but wouldn't that be ILR instead of PR?

[jimkam]

Oh dear!! So what are my options then? Any case laws? I can't simply pack my bag and leave. I have a life here. I know I am asking for the impossible but you guys have proven to be invaluable to a lot of people. What would you do in my situation? Please.

As Lucapooka said, the best way is to request Discretionary Leave to Remain (DLR). Which is essentially a special kind of visa, which you can request based on your successful Human Rights Article 8 claim. However, if you won that earlier Article 8 claim based on married life, there is a considerable risk that you may be refused this time (as you not married anymore).

I won the previous article 8 based on Private Life not married life as I was no longer married then. The circumstances in which I won my article 8 still applies today; in that I have community ties and have been in a long term relationship with a EEA national for nearly 4 years and I have been working continuously. It sounds like my only option is to plead for another DLR? When will I ever qualify for PR? Would they simply keep extending my DLR until they've had enough?

[Gyfrinachgar]

I won the previous article 8 based on Private Life not married life as I was no longer married then. The circumstances in which I won my article 8 still applies today

That is very good news actually, as it increases your chances considerably. Eventually you can apply for Indefinite Leave to Remain (ILR) - basically very similar to PR but for non-EEA immigration routes. Then you will be on the safe side.

[Obie]

I am sorry but it is ILR that he will be entitled to.

[jimkam]

I won the previous article 8 based on Private Life not married life as I was no longer married then. The circumstances in which I won my article 8 still applies today

That is very good news actually, as it increases your chances considerably.

Finally a smile on my face:-). Thank you for the advise. I hope I can find a case law by the time I'm due to apply for another PR.

[Obie]

I believe you would be granted a further leave of 30 months this time. Once you have accured 120 months of DLR, you should be able to secure ILR.

[jimkam]

I believe you would be granted a further leave of 30 months this time. Once you have accured 120 months of DLR, you should be able to secure ILR.

Thanks Obie. I just read this quote on a Manchester Law firm website raising the awareness on the new changes to the immigration rules and it frightened me a bit. It says: "The Home Office will no longer grant a person discretionary leave to remain which leads to settlement after 6 years on the basis of family life or private life". There was no further explanation. I'm really confused ow and panicking! Please advise. Thanks

http://www.smlc.org.uk/important-change ... ly-2012-2/

[jimkam]

I believe you would be granted a further leave of 30 months this time. Once you have accured 120 months of DLR, you should be able to secure ILR.

http://www.smlc.org.uk/important-change ... ly-2012-2/

[Greenie]

I believe you would be granted a further leave of 30 months this time. Once you have accured 120 months of DLR, you should be able to secure ILR.

no -he would be granted a further 3 years discretionary leave and be eligible for ilr after 6 years in this category.

[Greenie]

I believe you would be granted a further leave of 30 months this time. Once you have accured 120 months of DLR, you should be able to secure ILR.

Thanks Obie. I just read this quote on a Manchester Law firm website raising the awareness on the new changes to the immigration rules and it frightened me a bit. It says: "The Home Office will no longer grant a person discretionary leave to remain which leads to settlement after 6 years on the basis of family life or private life". There was no further explanation. I'm really confused ow and panicking! Please advise. Thanks

http://www.smlc.org.uk/important-change ... ly-2012-2/

Transitional arrangements apply to those granted discretionary leave before 9th July.

[Obie]

Well i believe the OP's case will be dealt with according to the law that exist on the day of his application. As the rules have changed and the SOS no longer grants 3 years DLR, i suspect he will only be able to obtain 30months when he lodges a new application.

I know the HSPM Judicial review people succeed in using legitimate expectation argument, which OP may succeed in, but as things stand i suspect his new application will have to be dealt with in accordance with the existing rules.
If my assessment is wrong, please explain why you think it is.

I understand transitional rules apply to application lodged before July, but i am not sure , it does to new application.

[Lucapooka]

Well i believe the OP's case will be dealt with according to the law that exist on the day of his application. [...]I understand transitional rules apply to application lodged before July, but i am not sure , it does to new application.

This is not a new application. The OP has already been granted 3 years of DL which is about to expire.

I was given 3 years Discretionary Leave to Remain. My 3 years expires in May 2013.

2.2 Individuals granted Discretionary Leave before 9 July 2012
Those who before 9 July 2012 have been granted leave under the Discretionary Leave policy in force at the time will continue to be dealt with under that policy through to settlement if they qualify for it (normally after accruing six years of Discretionary Leave unless Discretionary Leave has been granted because the individual is excluded from a grant of asylum or humanitarian protection, in which case 10 years leave is usually required), subject to the individual meeting the new criminality thresholds as set out in Appendix FM (paragraphs S-EC and SLTR).

[Greenie]

Well i believe the OP's case will be dealt with according to the law that exist on the day of his application. As the rules have changed and the SOS no longer grants 3 years DLR, i suspect he will only be able to obtain 30months when he lodges a new application.

I know the HSPM Judicial review people succeed in using legitimate expectation argument, which OP may succeed in, but as things stand i suspect his new application will have to be dealt with in accordance with the existing rules.
If my assessment is wrong, please explain why you think it is.

I understand transitional rules apply to application lodged before July, but i am not sure , it does to new application.

i am sorry but i don't think it is unreasonable to expect a moderator on this forum to take the time to look through the available information on this forum or to undertake a simple Google search, rather than continuing to give incorrect information.

Google 'discretionary leave transitional arrangements' and and you will find the relevant ukba document

[Obie]

Excellent. In that case, OP will be able to obtain a further 3 years leave and secure ILR after. To be honest, i thought the transitional arrangement applies to application awaiting decision before new rules.