Flr M refused on the grounds of human rights

[zidane]

Dear All,

I had a very strange refusal come in just today for my wife's FLR (M) application . I am on ILR (10 years basis) at the moment.
Initially WE applied for FLR O visa when my tier 4 and her tier 4 dependent was expiring which got refused on the 13th of July 2016. But i was eligible for ILR within 4 days and i got ILR approved At PEO same day 19th July 16. So I was OK. But for my wife i put in another FLR FP on 10th august i.e. Within 28 days of her refusal and attached my ILR card with her application as I had no 6 months payslips to apply for FLR M. On 5th December however i managed to get 6 payslips all legit and applied for a new FLR M requesting UKVI to vary the previous FLR FP application submitted on the 10th August.

I just got her refusal , if you want I can attach it

the refusal does not mention anything that lacked in the FLR M application as we had everything ( i guess that means we met the suitability bit ,below) and it also says that in the refusal that our relationship is genuine etc. there are no issues with payslips , rental agreement bank statement etc.


in short it says that my wife

" meets the SUITABILITY criteria S-LTR of paragraph R-LTRP 1.1(c)(i) BUT
she fails the ELIGIBILITY criteria of paragraph R-LTRP.1.1.(c)(ii) for the following reasons

You are currently living in the UK with no valid leave to remain. therefore you are considered to be present in the UK in breach of immigration laws and subsequently fail to qualify by the virtue of E-ltrp.2.2. of Appendix FM of immigration Rules.
consequently you fail to meet the eligibility requirements of paragraph R-LTP .1.1(c)(ii) because you fail to meet paragraph E-LTRP .2.2 of appendix Fm of the immigration rules"


I think it all boils down to the point whether she ,between the time from 13th July (refusal of flr O) till 10th of August(FLR FP lodge date ) was legal or not. I believe she was!!
I am sure that the UKVI disregards any period of overstaying of 28 days and I was under the impression that she was covered by that 28 days grace, as i had to wait for my ilr card etc but i applied for her flr fp within 28 days and also varied that flrfp to flr m before any decision was taken on the flr fp.


We have been given 14 days to lodge an appeal . I have never had a refusal that would lead to appeal so not sure how to deal with all this .

Can the respected gurus and members shed some light on this and pin point whether there is any ray of hope and what grounds can i use to lodge the appeal and chances of getting the visa . i am planning to do my research on the area and hopefully lodge an appeal without any legal help as money is a problem at this point.


I thank all of you for reading this and responding and have always received great help through my different visa phases on this forum .

Kind regards
Zidane.

[physicskate]

The period of 28 days was reduced to 14 days recently. This is applied retrospectively.

[secret.simon]

Initially WE applied for FLR O visa when my tier 4 and her tier 4 dependent was expiring which got refused on the 13th of July 2016.

Was the FLR(O) application made before your wife's Tier 4 visa expired or after it expired (even if it was the day after)?

The period of 28 days was reduced to 14 days recently. This is applied retrospectively..

I am fairly certain that that is not the case here. My interpretation of the OP's situation is slightly different.

[zidane]

Initially WE applied for FLR O visa when my tier 4 and her tier 4 dependent was expiring which got refused on the 13th of July 2016.

Was this application made before your wife's Tier 4 visa expired or after it expired (even if it was the day after)? This was an in time application applied posted on the last day of visa expiry on the 11th of April

The period of 28 days was reduced to 14 days recently. This is applied retrospectively..

I am fairly certain that that is not the case here. My interpretation of the OP's situation is slightly different.

[zidane]

The period of 28 days was reduced to 14 days recently. This is applied retrospectively.

As far as I am aware this has always been 28 days, the 14 days is the appeal period given but the overstay was never changed, as per my knowledge . Thanks

[zidane]

Actually i just read that it has been halved to 14 days , my bad. but is that relevant in my case above..
and what options does this leaves me with , considering we are newly pregnant (i know it doesn't make a difference,possibly )

[secret.simon]

Was this application made before your wife's Tier 4 visa expired or after it expired (even if it was the day after)? This was an in time application applied posted on the last day of visa expiry on the 11th of April

The entire case hinges on this; was this FLR(O) application intime or out of time?

If the FLR(O) was intime, Section 3C would kick in and your wife would have had valid leave till 13th July (refusal of FLR(O)). She could then apply for FLR(FP) within 28 days of that leave period expiring.

If the FLR(O) was out of time (such as if you posted it so late that the postman would only collect the post the next day and would get stamped as of that date), then Section 3C would not kick in and your wife would have been an overstayer since 11th April (date of expiry of Tier 4 dependent visa), as she has not subsequently had a successful grant of leave.

Remember that submitting an application does not grant you an extension of leave unless it is intime and even then, only allows for one failed application. During the 28 days of grace, the applicant is still an overstayer, though an overstay of less than 28 days is ignored.

I suggest doing an SAR on the Home Office to find out what they have on record as the date of application of your wife's FLR(O) application. I believe that the entire case hinges on that.

[zidane]

Was this application made before your wife's Tier 4 visa expired or after it expired (even if it was the day after)? This was an in time application applied posted on the last day of visa expiry on the 11th of April

The entire case hinges on this; was this FLR(O) application intime or out of time?

If the FLR(O) was intime, Section 3C would kick in and your wife would have had valid leave till 13th July (refusal of FLR(O)). She could then apply for FLR(FP) within 28 days of that leave period expiring.

If the FLR(O) was out of time (such as if you posted it so late that the postman would only collect the post the next day and would get stamped as of that date), then Section 3C would not kick in and your wife would have been an overstayer since 11th April (date of expiry of Tier 4 dependent visa), as she has not subsequently had a successful grant of leave.

Remember that submitting an application does not grant you an extension of leave unless it is intime and even then, only allows for one failed application. During the 28 days of grace, the applicant is still an overstayer, though an overstay of less than 28 days is ignored.

I suggest doing an SAR on the Home Office to find out what they have on record as the date of application of your wife's FLR(O) application. I believe that the entire case hinges on that.

Thank you simon. I agree , I have a refusal letter on the 13th of July stating that the application made was on 11th of April IN TIME ...going further on explaining the reason for the FLR O refusal.
I have the proof of this on me.

[zidane]

Also , the SAR is a good suggestion but , I have only 12 days left to lodge and appeal and SAR can take upto 40 days. but on the hind-sight I have a proof of what we are trying to achieve through this on me as stated above.

Do you reckon I have a chance here? .And how would I go about raising those positive points i have , if any.

Cheers simon.

[zidane]

E-LTRP.2.2.
The applicant must not be in the UK:
 on temporary admission or temporary release, unless the applicant has been so for a
continuous period of more than 6 months at the date of application and EX.1. applies;
or
 in breach of immigration laws (disregarding any period of overstaying for a period of 28
days or less), unless paragraph EX.1. applies.


How can the application be refused and there be the 28 days grace mentioned in the E-LTRP 2.2 . do you guys rekon I use this point in the appeal process .?

[Obie]

E-LTRP.2.2.
The applicant must not be in the UK:
 on temporary admission or temporary release, unless the applicant has been so for a
continuous period of more than 6 months at the date of application and EX.1. applies;
or
 in breach of immigration laws (disregarding any period of overstaying for a period of 28
days or less), unless paragraph EX.1. applies.


How can the application be refused and there be the 28 days grace mentioned in the E-LTRP 2.2 . do you guys rekon I use this point in the appeal process .?

I don't think 39E is applicable, as it appears you varied an application which was made before the 24-11-2016. The Home Office may seek to argue that the FLR(M) is not a variation under Section 3C5 and hence they are considering your 5th December variation as the day of the FLR(M) application, rather than the 5th December.

[zidane]

E-LTRP.2.2.
The applicant must not be in the UK:
 on temporary admission or temporary release, unless the applicant has been so for a
continuous period of more than 6 months at the date of application and EX.1. applies;
or
 in breach of immigration laws (disregarding any period of overstaying for a period of 28
days or less), unless paragraph EX.1. applies.


How can the application be refused and there be the 28 days grace mentioned in the E-LTRP 2.2 . do you guys rekon I use this point in the appeal process .?

I don't think 39E is applicable, as it appears you varied an application which was made before the 24-11-2016. The Home Office may seek to argue that the FLR(M) is not a variation under Section 3C5 and hence they are considering your 5th December variation as the day of the FLR(M) application, rather than the 5th December.

Thank you dear. Any advise on how I should approach this and what is the best way to go about this . I have the appeal right , what grounds Can I raise . From your experience ,what likelyhood we have in winning the appeal.

Thanks Obie for your input.

[manci]

I had a very strange refusal come in just today for my wife's FLR (M) application . .

Are you sure that it was the FLR(M) application that was refused rather than the FLR(FP) application? Check the refusal letter.

The period of 28 days was reduced to 14 days recently. This is applied retrospectively.

It wasn't rettrospective, the revised rule came into force on 24 November 2016

[zidane]

I had a very strange refusal come in just today for my wife's FLR (M) application . .

Are you sure that it was the FLR(M) application that was refused rather than the FLR(FP) application? Check the refusal letter.

Dear Manci, Exactly right !!! this is what I thought initially too , but it does mention everything about the trail of applications and the latest flr m variation which was refused. I have also received the ihs refund which i am not sure is for flr fp or flr m , as normally they would refund any IHS after exhaustion of appeal right ( if given) i.e. 14 days

[Obie]

They return NHS surcharge after refusal , but if appeal is won, you will need to repay it

[zidane]

They return NHS surcharge after refusal , but if appeal is won, you will need to repay it

thanks obie, i was wondering that too.. I guess then later after wining hopefully, ill ask them to refund for flr fp's ihs and application too. but that's for later . I need to win this first.
presently, I am planning to use the appeal in person and not on paper and present in front of the judge with my wife and explain the situation. I just need some solid backing as to how strong my case is .. not planning to use a lawyer to be honest. Would you advise for or against it in my case .

[secret.simon]

If you can prove that the FLR(O) application was intime (which you mentioned is acknowledged in the FLR(O) rejection letter) and the FLR(FP) application was made within 28 days of the FLR(O) rejection (you may have to check if that is mentioned on the rejection FLR(M) rejection letter), then I believe that you have very good grounds for appeal.

[zidane]

"The application date remains the date of the original application and not the date of the
variation" From page 57 specified application forms and procedures gov.uk

in the light of above the application date should have been the date of flr fp i.e. 10th August and not 5th december

Now as mentioned by Simon above, the decider is the period from 13th july to 10th august , which is within the grace period of that time .

I hope it is an easy win.

[zidane]

If you can prove that the FLR(O) application was intime (which you mentioned is acknowledged in the FLR(O) rejection letter) and the FLR(FP) application was made within 28 days of the FLR(O) rejection (you may have to check if that is mentioned on the rejection FLR(M) rejection letter), then I believe that you have very good grounds for appeal.

Thank you simon .. I Hope so . but don't you think if the FLR M was a variation of an already out of time FLR FP they should have invalidated the FLR M there and then rather than considering it and then going on to refuse it after 7 weeks .

[Abc499]

"The application date remains the date of the original application and not the date of the
variation" From page 57 specified application forms and procedures gov.uk

But also the next sentence of your quotation is "You will need to consider this when deciding if the applicant benefits from section 3C leave. "

So it is-
The application date remains the date of the original application and not the date of the variation. You will need to consider this when deciding if the applicant benefits from section 3C leave.

If this is the issue then it means for out of time application variation date is the application date

[zidane]

[/quote]

But also the next sentence of your quotation is "You will need to consider this when deciding if the applicant benefits from section 3C leave. "

So it is-
The application date remains the date of the original application and not the date of the variation. You will need to consider this when deciding if the applicant benefits from section 3C leave.

If this is the issue then it means for out of time application variation date is the application date [/quote]


Thanks for your input ABC 499
But the applications has always been made in time and within 28 days period. arguably the period should count as legal taking into account the rules before 24th November (14 day rule)

[Abc499]

But the applications has always been made in time and within 28 days period. arguably the period should count as legal taking into account the rules before 24th November (14 day rule)

Yes the application made on 28th day of overstaying. up to 28 days overstaying will be disgraced if the subsequent application is successful.

I hope I am wrong, reading the guideline my understanding is original date of the application will be considered (when vary an application) only if the applicant covered by Section 3C. Probably Obie mention something similar to this (I do not know the law, so failed to understand the meaning on section 3C5).

My understanding on the 28 days rules is when I am filling the application (vary/new) on that point I am not overstayed by more than 28 days (without any kind of additional action required). So when you vary/applied for FLR (M) on that point you are overstaying since 13th July 2016. Even if you apply within 28 days still the over-stayer clock will continue to run and will validate the period from the application date only when the application is successful but it will not help towards catching another train because the journey already conditional and need to be successful itself to validate the leave from application date.


I believe seniors will be able to clarify this, will wait to see.

[zidane]

But the applications has always been made in time and within 28 days period. arguably the period should count as legal taking into account the rules before 24th November (14 day rule)

Yes the application made on 28th day of overstaying. up to 28 days overstaying will be disgraced if the subsequent application is successful.

I hope I am wrong, reading the guideline my understanding is original date of the application will be considered (when vary an application) only if the applicant covered by Section 3C. Probably Obie mention something similar to this (I do not know the law, so failed to understand the meaning on section 3C5).

My understanding on the 28 days rules is when I am filling the application (vary/new) on that point I am not overstayed by more than 28 days (without any kind of additional action required). So when you vary/applied for FLR (M) on that point you are overstaying since 13th July 2016. Even if you apply within 28 days still the over-stayer clock will continue to run and will validate the period from the application date only when the application is successful but it will not help towards catching another train because the journey already conditional and need to be successful itself to validate the leave from application date.


I believe seniors will be able to clarify this, will wait to see.

ABC 499 thanks for the reply,


i have seen thorough out my life here that any application made within 28 days is as if it is made in time as they disregard that period . plus the original application that was made of flr o was made in time so till 13th July all is ok , but after that one can argue whether the 3c continued, even if it didn't and someone applies in 28 days period and than vary that particular application due to genuine change in circumstances that should be and has been considered . why did they accept the variation then?

The dilemma is that the caseworker has failed to explain what period was regarded as overstaying. very incompetent and vague refusal.

I am going to appeal this as the representative of my wife and will attend appeal.

don't know how long that will take to be honest.

[vinny]

If an application was out-of-time, then Section 3C was not applicable.

[secret.simon]

The discussion on section 3C leave is a red herring.

If the applicant made the application while s/he had extant leave, that is extended by Section 3C leave. It is not extended if the leave is made in the grace period.

The OP's wife had Section 3C leave till 13th July. She made a subsequent application on the 28th day (OP, do you have any confirmation of the date of application for the FLR(FP) application?).

The application date remains the date of the original application and not the date of the variation. You will need to consider this when deciding if the applicant benefits from section 3C leave.

The latter part of the quote is irrelevant because Section 3C leave does not apply to applications made out of time, which the FLR(FP) was.

The operative bit is the first part; that the varied application (FLR(M)) is taken to have the same application date as the original application (FLR(FP)).

So, back to the OP. Do you have any documentary proof of the date that the Home Office has entered as the date of application for the FLR(FP) application?