UKBA forcing 10 years route on me after completing 5 years

[ddoks]

I am in a serious dilemma here and would use some help/advise. I have been on a 5 year FLRM visa which expired on the 4 Feb, 2018. During the second extension of the FLRM visa 2.5 years ago, I applied 50 days too early due some pressing circumstance with moving jobs.

On Jan 8, I applied for ILR at premium center and it I got a shocking reminder in form of refusal that I wasn't due. I totally forgot that I applied 22 days before I was due 2.5 years. In the refusal letter, I was told that I qualify for a 30mins limited stay and was instructed to pay £500 Health Surcharge, which I paid.

To cut the long story short, I received a letter today, Feb 15 stating that I have been granted limited remain for 30 months, under a 10 year route - meaning my previous 5 years is gone and a new 10 years clock begins. I was heart broken. What are my options? Can I appeal the decision - do even stand a chance?

This is an except from the letter I got on the 8 of Jan.

"However, we are satisfied that you would fall to be granted limited leave to remain of 30 months on the basis of exceptional circumstances outside the Rules, were you to make a valid application for such leave. The detailed reasons for this are set out in Annex A.

In these circumstances, in accordance with the consent you gave on the application form, we are now treating your application as an application for limited leave to remain. However, under paragraph 6(1)(c)(ii) of the Immigration (Health Charge) Order 2015, we will be obliged to treat your application for limited leave to remain as invalid if you do not comply with a requirement to pay an immigration health surcharge by the date specified"

[vinny]

.... I applied 50 days too early ....
.... I applied 22 days before I was due 2.5 years ....

Which was it, 50 days or 22 days too early?

Did the caseworker add 28 extra days to the extension at that time?

If applying (in-person), then you shouldn't apply for ILR any sooner than 28 days before the completion of your qualifying period for ILR.

Unfortunately,

If the applicant does not meet all the eligibility requirements for indefinite leave to remain as a partner, and does not qualify for further limited leave to remain as a partner under paragraph DILRP. 1.2., the application will be refused, unless the applicant meets the requirements in paragraph R-LTRP.1.1.(a), (b) and (d) for limited leave to remain as a partner. Where they do, and subject to compliance with any requirement notified under paragraph GEN.1.15.(b), the applicant will be granted further limited leave to remain as a partner for a period not exceeding 30 months under paragraph D-LTRP.1.2. and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.

(1) Subject to sub-paragraph (2), the applicant must, at the date of application, have completed a continuous period of either:
(a) at least 60 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1.; or
(iii) a combination of (i) and (ii);
or
(b) at least 120 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1. or D-ECP.1.2.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1. or D-LTRP.1.2.; or
(iii) a combination of (i) and (ii).

It's harsh and perhaps even disproportionate, that early applicants are prevented from remaining on the 5-year route.

[AL1982]

.... I applied 50 days too early ....
.... I applied 22 days before I was due 2.5 years ....

Which was it, 50 days or 22 days too early

I believe he means he 22 days earlier than the allowed 28 days start date which adds up to 50 days prior to deadline.

[vinny]

I have been on a 5 year FLRM visa which expired on the 4 Feb, 2018....

This is an except from the letter I got on the 8 of Jan.

"However, we are satisfied that you would fall to be granted limited leave to remain of 30 months on the basis of exceptional circumstances outside the Rules, were you to make a valid application for such leave. The detailed reasons for this are set out in Annex A.

Your leave had not expired on 8 Jan 2018!

Why didn’t they think that you would fall to be granted limited leave to remain of 30 months inside the Rules, were you to make a valid application for such leave?

I think it would have been more reasonable and proportionate if they had let you vary your SET(M) to FLR(M) on that day.

If you had satisfied the 5-year route FLR(M) under D-LTRP.1.1. at the premium appointment on 8 Jan 2018, then the caseworker may have made a mistake. Request a reconsideration.

[ddoks]

Thanks for your response, @vinny.

If you had satisfied the 5-year route FLR(M) under D-LTRP.1.1. at the premium appointment on 8 Jan 2018, then the caseworker may have made a mistake. Request a reconsideration.

This is true, my FLR(M) was due to expire on the 4 Feb 2018 so I had satisfied the 5-year route.

Thinking about this some more, if only I got an old plain refusal of ILR application, I still would have had about 27 days to apply for a new FLR(M), I didn't know that the 30 months limited leave to remain that was offered to me on the 8 of Jan was going to be in a new 10 years route category, this too wasn't categorically stated in the letter otherwise I would have applied for an FLR(M) immediately.

Secondly, in the letter dated 15 Feb, the decision was based on paragraph R-LTRP.1.1.(a), (b) and (d) - which as I understand it, applies to anyone who defaults on any of rules set out in
Section S-LTR: Suitability-leave to remain. None of which applies to me.


I have attached both letters here
8 Jan:


10 Feb:


@vinny and any experienced person reading this, do you still think I stand a change for a reconsideration?

The UKBA advise helpline folks are not very helpful and should not be trusted IMHO, I recall calling them before I made the second FLR(M) application to explain my situation at the time, and I was told it was going to be OK as the extra 22 days will be added to the renewal - I naively didn't do the maths before applying for SET(M).

[Casa]

The HO 'help line' service is outsourced to an Agency, with staff who appear to have very limited knowledge on even the simplest of immigration issues. Call them 10 times and you are likely to be given 10 different answers. Neither will they take responsibility for any incorrect advice given.

By the way, it's now the UKVI. The UKBA was disbanded due to being 'unfit for purpose' and is now the UKVI. The French have a saying "The more things change, the more they stay the same"

[New on forum]

I am in a serious dilemma here and would use some help/advise. I have been on a 5 year FLRM visa which expired on the 4 Feb, 2018. During the second extension of the FLRM visa 2.5 years ago, I applied 50 days too early due some pressing circumstance with moving jobs.

On Jan 8, I applied for ILR at premium center and it I got a shocking reminder in form of refusal that I wasn't due. I totally forgot that I applied 22 days before I was due 2.5 years. In the refusal letter, I was told that I qualify for a 30mins limited stay and was instructed to pay £500 Health Surcharge, which I paid.

To cut the long story short, I received a letter today, Feb 15 stating that I have been granted limited remain for 30 months, under a 10 year route - meaning my previous 5 years is gone and a new 10 years clock begins. I was heart broken. What are my options? Can I appeal the decision - do even stand a chance?

This is an except from the letter I got on the 8 of Jan.

"However, we are satisfied that you would fall to be granted limited leave to remain of 30 months on the basis of exceptional circumstances outside the Rules, were you to make a valid application for such leave. The detailed reasons for this are set out in Annex A.

In these circumstances, in accordance with the consent you gave on the application form, we are now treating your application as an application for limited leave to remain. However, under paragraph 6(1)(c)(ii) of the Immigration (Health Charge) Order 2015, we will be obliged to treat your application for limited leave to remain as invalid if you do not comply with a requirement to pay an immigration health surcharge by the date specified"

Vey tragic.
Must be a very nasty caseworker who dealt with your case.
He/ she could have simply suggested you to withdraw the application and re apply after you complete the remaining days on flrm.
Very unfortunate.

[CR001]

On what date did you enter the UK on your first spouse visa 5 years ago??

[ddoks]

On what date did you enter the UK on your first spouse visa 5 years ago??

18 Jan 2013.

[CR001]

On what date did you enter the UK on your first spouse visa 5 years ago??

18 Jan 2013.

Then you qualified for ILR on 18th January 2018 minus 28 days, 5 years from date of entry to the UK provided you meet all the requirements, so the refusal makes even less sense. I would follow vinny's advice re his 'reconsideration'' link.

[CR001]

The detailed reasons for this are set out in Annex A.

As you have not uploaded 'Annex A' of the letter you got on 8th Jan, can you state what it said as 'reasons'?

[vinny]

If you entered on a spouse visa (and not a fiancé visa) on 18 January 2013, then you should have been able to apply for SET(M) from Thursday, 21 December 2017.

Please do not apply more than 28 days before completing that period. If you apply earlier than that, your application may be refused. If that happens, we will not refund the fee and you will have to pay again when reapplying.

[ddoks]

My apologies vinny and CR001, I misread your question.. got too much on my mind atm.

I applied for my first FLR(M) on the 18 Jan, 2013 and it was grant on the 07 March 2013. So the earliest I can apply for SET(M) according to Appendix A is 08 Feb, 2018.

[CR001]

I applied for my first FLR(M) on the 18 Jan, 2013 and it was grant on the 07 March 2013. So the earliest I can apply for SET(M) according to Appendix A is 08 Feb, 2018.

What was your immigration status/history prior to applying for a spouse visa?

[ddoks]

I was on a Post Study Work Permit visa prior to applying for FLR(M). And before PSW, I was on Tier 4 General Student Visa.

[CR001]

How long have you been in the UK, date you originally entered on Tier 4?

[ddoks]

I entered the UK on 29 Sept 2010.

On 29 September 2010 you entered the United Kingdom as a Tier 4 General Student and entry clearance valid from 13 July 2010 until 29 February 2012 with the. following conditions: Limited leave to remain in the UK. No recourse to public funds. Works and any changes must be authorised.

and the reason from Appendix A:



with a typo of "unmarried partner" instead of "married partner"

[CR001]

So you can still apply for ILR based on 10 years long residence in 2020 if you meet the requirements.

[ddoks]

I won't be in this mess if the letter category stated the type of "partner route" within Appendix FM. I assumed it was going to be another FLR(M). So given all this info, do you think I got any chance of asking for a reconsideration?

[CR001]

As suggested, follow vinny's advice on asking for a reconsideration.

[ddoks]

Thank you vinny and CR001 much appreciated. Good to be able to talk to someone.
I am going to find a solicitor to help me draft the reconsideration letter.

So you can still apply for ILR based on 10 years long residence in 2020 if you meet the requirements.

The feb 10 letter stated that I am not eligible for ILR until 28 days before completing 120 months. Can you provide links so I can read more on your 2020 suggestions above, please? Many thanks to you both again.

[CR001]

So you can still apply for ILR based on 10 years long residence in 2020 if you meet the requirements.

The feb 10 letter stated that I am not eligible for ILR until 28 days before completing 120 months. Can you provide links so I can read more on your 2020 suggestions above, please? Many thanks to you both again.

For 10 years long residence ILR, ALL visas you have held in the 10 years count for legal and continuous residence, including visitor visa.

https://www.gov.uk/government/uploads/s ... -v15_0.pdf

The letter is quoting only the FLR(FP) ILR requirement.

[ddoks]

I got a solicitor to represent me in asking for a review, and the home office didn't respond to any of the representations. They returned the documents to me (instead of the solicitor), and on one occasion they responded with an acknowledgement letter of change of address to the solicitor - this was totally not in line with the representations.

The solicitor is now advising me to go for a judicial review, this is expensive and it may not even be possible considering the decision was made over 3 months ago.

I am looking for the second opinion - to help make my mind up on how to proceed.

This is a screenshot of the letter from the solicitor:

[truncated]


The other option is to wait until 2020, however, I have a gap of about 301 days from when my current visa expires and when I complete 10 years - I first came to the UK in Sept 2010 and my current visa expires in August 2020. If I decide to give up the fight (although I hate to do this coz of my little pride), will the one month gap affect me, or should I spend more money by applying for another FLR(M)?

[vinny]

When you applied for your second FLR(M), how long they they grant it for?

[ddoks]

When you applied for your second FLR(M), how long they they grant it for?

It was granted for 2.5 years. I had to re-read my post to see why you asked the question:

"however, I have a gap of about 301 days from when my.... "

That was a typo, I meant to write 30 days. So Sorry.

I just the did the calculations manually, and it is actually a 49 days gap to be specific.