ILR refused - 28 days short of 60 months

[mford]

Hello,

My husband got his ILR refused yesterday as his original spouse visa was granted on 7 August 2012 and therefore we have not satisfied the 60 months. We mistakenly thought that as we had been granted 2 x 30 month visas and the second was due to expire that we had satisfied the 60 month requirement. The earliest we should have applied is 12 July (1 day after his current visa would have expired). We have been advised that if we pay a further 500 pounds health surcharge, he can get limited leave to remain and that we must pay this in 10 days and have no right to appeal. Do we have any other options? They still have all our paperwork - can we get them to re-consider the application on 12 July? We paid a premium service and were told the papers have been filled completed correctly and all other conditions have been met.

If we do pay the surcharge for limited leave to remain. In order to get settlement, do we still have to apply for ILR again and then settlement or can we jump straight from limited leave to remain straight to settlement?

Your help would be much appreciated.

[CR001]

ILR is settlement.

If granted limited leave to remain, yes he will then have to apply and pay for ILR again.

Not sure if his visa was granted within the UK or abroad as your post doesn't say, but for residence requirement, it starts from the date of entry to the UK if he applied abroad.

[mford]

Many thanks for your reply. We have always applied from inside the UK. Here are the dates the visas were granted.

Granted spouse of a settled person visa 7 August 2012 to 7 February 2015 (30 months)
Granted spouse of a settled person visa 12 January 2015 to 12 July 2017 (30 months)

Is it worth appealing their decision at all? As per my previous message, they have confirmed all the paper work is correct as we had a premium service and they are still in possession of all the documents. If the application could be re-considered again on 12 July 2017, we would be eligible for ILR and would not have to pay the surcharge and end up on a limited leave to remain visa. We do not want to run the risk of my husband overstaying his visa but it seems crazy that we can lose the fee when all the needs to happen is they process the paperwork they are holding on 12 July for the ILR application. Or is our only option now to pay the healthcare surcharge?

If we do pay the surcharge for limited leave to remain. In order to get naturalization, do we still have to apply for ILR again or can we jump straight from limited leave to remain straight to naturalization?

[vinny]

Granted spouse of a settled person visa 12 January 2015 to 12 July 2017 (30 months)

In the second extension on 12 January 2015, they should have granted leave in excess of 30 months, giving you enough leave to cover 60 months.

From 6th Nov 2014,

Where an applicant currently has extant leave at the date of decision, any period of remaining extant leave, up to a maximum of 28 days, will be added to the period of leave that they are being granted under paragraph D-LTRP.1.1. An applicant with extant leave in this scenario will therefore be granted a period of leave in excess of 30 months.

[mford]

Many thanks for this Vinny. Does this mean we have grounds to appeal?

[mford]

Or, alternatively is it worth us getting advice from a solicitor (as our letter says we have no right to appeal). If in your opinion it is, can you recommend someone?

[Obie]

The most sensible thing to have done, will be to Apply for FLR(M) to cover you and them apply to have it varied to SET(M).

Has he been given a right of appeal? if yes, then i will appeal it, and save myself from making new application and paying new fees.

If a paper appeal is done, it is likely to be decided relatively quickly.

[mford]

Thanks again for your reply. Unfortunately we have applied already. We did not realize this was the best option at the time. In the letter it says we have no right to appeal. But if a mistake was made on the application made on 12 January 2015 is there some way we can challenge their decision and get them to reconsider? Essentially what is our best course of action now? Or do we have no choice but to lose our fee for this application, pay the healthcare surcharge and then apply for ILR again?

[Obie]

What deadline did they give you.

[Obie]

What deadline did they give you.

I believe it was open to you, as a matter of law, to have varied the ILR application to FLR(M), ask for a refund of your money, and then use that towards the NHS surcharge. Nothing in law, as far as i know, precludes you from doing that.

[mford]

Apologies but I am not sure on exactly what you are advising we do now that we are in the specific situation we are in? How exactly do we now ask for a refund of our money or challenge the decision? We have no number to call or way to speak to anyone at the Home office. The letter offers no instruction on how we might challenge the decision. Please break it down for me.

[FVallejo]

Hi, (I'm the husband)

Thanks again for your help. This is the letter weblink removed I got the day of the appointment, they said we have 10 days to pay the IHS to get the LLR without option to appeal.

Thanks again.

[CR001]

Hi, (I'm the husband)

Thanks again for your help. This is the letter weblink removed I got the day of the appointment, they said we have 10 days to pay the IHS to get the LLR without option to appeal.

Thanks again.

1. Please DO NOT post letters which contain ALL your personal information. Link has been removed. Please black out all your personal identifiable information first before uploading.

2. It was not necessary to register another username, you could have continued posting under one, just identifying who was posting.

[Obie]

I am glad that one of my concerned colleagues has removed the link to protect you.

What the UK did is unlawful. They cannot say we will invalidate your application and lose your money. That is unlawful.

What they did is unlawful in threatening you that you will lose your application fee. There is no power in law for them to do that.


There is a case law for that. If a person applied for ILR, then you deal with the ILR, and if refuse, you give them the right of appeal.

You cannot have your cake and eat it. What a corrupt department.

JH ZImbabwe indicates that the approach that they have sought to take is clearly unlawful.

[mford]

This is what we thought but what are our options now. How best to challenge their decision?

[FVallejo]

I have just spoken to a solicitor who has advised that we write and ask for more than 10 days to pay the surcharge and then write again on or after the 12 July asking them to reconsider the application as we will then be within 28 days of completing 60 months. What would your advice be on this? Many thanks.

[tier1mig]

I am also in similar situation, it will be great if you can share final outcome and decision made