Spouse visa expired

[manci]

Given that 287(a)(i)(a) does not require extant leave for the settlement application of the spouse of a settled person, what is the immigration status of a spouse whose 2 year probationary period has been completed and whose spouse visa has expired but who has not yet applied for ILR?

Is she an overstayer or not?

The relevance of this question is whether when she does make her application for ILR, and the application is refused, will she get a right to appeal under s82?

[Casa]

You're likely to be told there is no right of appeal if the application is refused when there is no valid leave. Case workers frequently ignore 287(a)(i)(a)
If you're in this situation, it would be wise to seek legal advice before submitting the application.

[manci]

. Case workers frequently ignore 287(a)(i)(a)

They can't, it is the law.

The issue really is whether a spouse will be an overstayer or not on the expiry of the spouse visa. This will determine whether there is a right to appeal under s82 of the 2002 Act if the settlement application is refused. There is no guidance on this point (at least not that I could find).

I did ask the HO Settlement Operational Policy Unit the question and this post is seeking confirmation of the answer I got and, if possibe, the legal background and any precedents, if known.

QUESTION;
If the spouse of a settled person applies for ILR a short time (a few days or at the most a few weeks) after the expiry of his spouse visa, and the application is refused, will there be a right to appeal?

HO ANSWER
If the application is out of time and falls for refusal, it would attract a right of appeal under Section 82.

[vinny]

Which subsection?