FLR(M) Refusal - Appeal

[kostikson]

Quick update if someone is still following my topic. Spoke to MP and they've made and they've requested more information from Home Office. Basically response was as follows:

They have confirmed that the issue with the application is essentially that we've moved between the EEA rules and the Immigration rules. This has meant that the normal immigration rules and process couldn't be followed. Under the immigration rules UKVI would expect the first application to be made from outside the UK, granting a 2.5 year spousal visa, which would then be extended by 2.5 years with an in country application to extend to meet the 5 year requirement. However as we have moved from EEA rules to Immigration rules this process could not have been followed.

They have suggested that one possible future route for application, other than the above route, would be to consider a Further Leave to Remain (Outside the immigration rules) application (or FLR(O).). As this route would seem to be more appropriate to your individual circumstances.

They did not rule out the possibility of an appeal being successful but did stress that I should seek independent immigration advice before proceeding down this route.

So risk now is that even if I re-apply again they might refer back to the fact EEA PR not approved in their list as an appropriate immigration grounds to apply from within UK.

Anyone got any experience with the FLR(O) ?

[Obie]

I will strongly advise that your don't abandon your appeal right. It will be wholly foolish for you to do so, in the light of the restrictive rules coming into force.

You appeal has a realistic rather than a fanciful prospect of success.

If in the meantime the CJEU rules against UK on the issue of dual nationality, your wife will qualify for Permanent Residence.

What they told the MP was further rubbish, FLR(O) will only lead to further misery.

[manci]

So risk now is that even if I re-apply again they might refer back to the fact EEA PR not approved in their list as an appropriate immigration grounds to apply from within UK.

there is no such risk with FLR(M). Suggest you take the trouble to read Appendix FM of the immigration rules which is what the Home Office go by.

The choice between appeal and an FLR(M) re-application is the cost. An appeal would cost more with professional help and if successful you'll only gain a few week or months as far as the 5 year qualifying period is concerned.

@Obie
If the OP now follows the UK immigration route and there is an ECJ decision against the UK would there be anything preventing her to switch back to the EEA route?

[manci]

So risk now is that even if I re-apply again they might refer back to the fact EEA PR not approved in their list as an appropriate immigration grounds to apply from within UK.

there is no such risk with FLR(M). Suggest you take the trouble to read Appendix FM of the immigration rules which is what the Home Office go by.

The choice between appeal and an FLR(M) re-application is the cost. An appeal would cost more with professional help and if successful you'll only gain a few weeks or months as far as the 5 year qualifying period is concerned.

@Obie
If the OP now follows the UK immigration route and there is an ECJ decision against the UK would there be anything preventing her to switch back to the EEA route?

[Obie]

@Obie
If the OP now follows the UK immigration route and there is an ECJ decision against the UK would there be anything preventing her to switch back to the EEA route?

I can't see any obstacle.

[manci]

deleted (duplicate post)

[kostikson]

Can someone explain the difference between appeal with hearing and without in practise. Would that make any difference in my case ?

[Obie]

In the particular circumstances of your case, i do think an oral hearing will be best.

[manci]

In the particular circumstances of your case, i do think an oral hearing will be best.

in which case a re-application would be a speedier and more cost effective choice.

[Obie]

In the particular circumstances of your case, i do think an oral hearing will be best.

in which case a re-application would be a speedier and more cost effective choice.

With the threat of no in country appeal rights if refused.

[manci]

With the threat of no in country appeal rights if refused.

yes, that is so, but I think the principles are clear and on the basis of EX.1(a) a re-application should succeed. However, even if the OP makes a mistake and it is refused, it would still be cheaper to re-re-apply than go for an oral hearing with a barrister or solicitor.

There are no time constraints, the OP can remain in the UK until some time in 2018.

[manci]

Prices went up ...

Fees
If your refusal letter is dated on or before 9 October 2016 it costs:

£80 without a hearing
£140 with a hearing
If your refusal letter is dated on or after 10 October 2016 it costs:

£490 without a hearing
£800 with a hearing

It has been announced today that the October fee hike has been reversed, so it is back to
£80 without a hearing
£140 with a hearing

Therefore the appeal is now cheaper than a re-application would be ( excluding any costs of professional assistance).

[kostikson]

Appeal was submitted within 14 days. Will keep posted.

[Obie]

Wise move , as the government is seeking to close the in country appeal routes in the next few days.

According to the case law, a court will receive to grant JR or JR relief if there is an alternate remedy in the form of out of country appeal .

[kostikson]

quick update if someone is still following this post.

We won the first tribunal court case, but Home office decided to appeal and now waiting for the higher court decision.

However I am considering trying to apply for my wife ILR via European route due to dual nationality.

[CR001]

There has been a ruling on the dual EU/UK national saga.

See link below (posts by Obie and Vinny with the judgment link).

eea-route-applications/do-dual-eu-uk-ci ... l#p1561805

[kostikson]

There has been a ruling on the dual EU/UK national saga.

See link below (posts by Obie and Vinny with the judgment link).

eea-route-applications/do-dual-eu-uk-ci ... l#p1561805

Thanks for that. I am aware of this case and a bit pissed off that my lawyer advised to go via the expensive option of being British and apply via British not the EEU route.

She will be 5 years on EEU route in Feb 2018, can we apply now or have to wait for exactly 5 years ?

[CR001]

have to wait for exactly 5 years

This one.

[Obie]

There has been a ruling on the dual EU/UK national saga.

See link below (posts by Obie and Vinny with the judgment link).

eea-route-applications/do-dual-eu-uk-ci ... l#p1561805

Thanks for that. I am aware of this case and a bit pissed off that my lawyer advised to go via the expensive option of being British and apply via British not the EEU route.

She will be 5 years on EEU route in Feb 2018, can we apply now or have to wait for exactly 5 years ?

The lawyer is clearly wrong, the application under the UK law route is likely to fail, you need to ditch that lawyer or thing will all end in tears.

You need to try and implore him to update himself on a regular basis so he does not lead his client into the abyss.

[kostikson]

There has been a ruling on the dual EU/UK national saga.

See link below (posts by Obie and Vinny with the judgment link).

eea-route-applications/do-dual-eu-uk-ci ... l#p1561805

Thanks for that. I am aware of this case and a bit pissed off that my lawyer advised to go via the expensive option of being British and apply via British not the EEU route.

She will be 5 years on EEU route in Feb 2018, can we apply now or have to wait for exactly 5 years ?

The lawyer is clearly wrong, the application under the UK law route is likely to fail, you need to ditch that lawyer or thing will all end in tears.

You need to try and implore him to update himself on a regular basis so he does not lead his client into the abyss.

It get's to a stage we are on the back seat and waiting for a decision, so unfortunately not much we can do at this stage ((

As far as I see we have to apply via EEA PR form, can someone confirm my assumption is correct please.

[kostikson]

Not sure if anyone is interested, however will write a quick update. Our flrm case was escalated to a higher tribunal and after hearing we won the case, while home office had no arguments to support their appeal, so wife has been granted a 2,5 visa as a spouse of uk citizen. At the same time we also pushed the EU route and recieved a ilr as a spouse of Europen citizen.

Thanks for support and advices.