Residency Permit

jsnetman · Post by **jsnetman** » Tue Mar 20, 2012 12:43 pm

Hi all,

Background:

I am an english national who married a Turkish woman in 2008, she came here on a spouses visa October 2008. After that we had two children born 2009 and 2011. Because of my wife’s pregnancies and looking after the children she was unable to successfully study for the Life in the UK test. After the two years on the spouse’s visa applied for FLR and listed the fact she had trouble with the test prep and after 5 attempts gave up. She was granted a discretionary leave to remain until Oct 2014.

My question is: is she able to just simply able apply for residency as she would have been here 5 years on Oct 2013 using form EEA4 which does not incur a whopping fee that ILR does.

Failing that what other method can we use to get her permanent residency here without her having to do the test and paying the whopping fee.

Should just mention we are still a family unit (not seperated)

Thanks in advance

Post by **Lucapooka** » Tue Mar 20, 2012 12:48 pm

Turkey in not part of the EEA so she can't be considered for PR under those rules. It it were otherwise she would not have needed a spouse visa and not have been required to apply for DL. According to the guidance, when her current DL is about to expire she may apply for a another grant of 3 years. Then, on completion of an aggregated 6 years under DL, she may apply for ILR.

There may well be further discretion to allow her to apply for ILR sooner (when she eventually passes the KOL) but that is not mentioned in the DL guidance. Perhaps others may comment on the possibility of this.

jsnetman · Post by **jsnetman** » Tue Mar 20, 2012 12:55 pm

Turkey in not part of the EEA so she can't be considered for PR under those rules

Thanks for clearing that up.

When her current DL expires it will be 6 years, do we still have to pay the fee for ILR after that time. Just seems crazy to me that a woman as my wife with two british children has to jump through all these immigration hoops and nearly 1k fee, I know they have to be strict but...

Post by **Lucapooka** » Tue Mar 20, 2012 1:01 pm

jsnetman wrote:When her current DL expires it will be 6 years

Quite but not six years in the DL category. The guidance on settlement under DL asks for 3 + 3 and makes no mention of other leave (previously granted within the rules) being allowed to be incorporated into that six year period. As I said earlier, wait for more informed comment on as, by definition, all of this is discretionary and outside the immigration rules, so there may be room for maneuver.

jsnetman · Post by **jsnetman** » Tue Mar 20, 2012 4:06 pm

Would my wife be able to aplly under HPDL ?

Form HPDL

You should use form HPDL to apply for settlement or an extension of your stay if you were given:
* exceptional leave to remain for a period of less than 4 years, or for separate periods making 4 years in all;
* discretionary leave to remain; or
* humanitarian protection before 30 August 2005.

This is taken from the UK Border agency.

My wife was given discretionary leave although not for asylum reasons.

Post by **Lucapooka** » Tue Mar 20, 2012 4:10 pm

The type of application from is not the issue, HPDL or SET(O); it's not important. It's whether she can apply now after only 3 years on DL.

jsnetman · Post by **jsnetman** » Tue Mar 20, 2012 4:18 pm

The DL was given fo 4 years (I think may have to check this when I get home it could be 3), she already came on a two year spouses visa so that adds up to 6 or 5 all together.

Post by **Lucapooka** » Tue Mar 20, 2012 4:20 pm

Your timeline as indicated in your first post, and the circumstances of family life rather than humanitarian protection, suggest it was for three years.

Post by **Greenie** » Tue Mar 20, 2012 4:34 pm

I agree DL is only usually given for a maximum of 3 years. I would agree with Lucapooka's interpretation that she needs to complete 6 years DL rather than a combination of DL and spouse visa.

It's unclear however why she was given DL in the first place and not further leave under the rules? Did she apply for further leave before her spouse visa expired? what date was the application made.

HPDL is for applicants who were granted DL following refusal of an asylum claim so would not be the form for your wife to use. There is ongoing litigation however on the UKBA's insistance that someone apply for discretionary leave has to use a form and pay a fee when the application is outside the rules, this may be settled by the time your wife is acutally in a position to apply.

jsnetman · Post by **jsnetman** » Wed Mar 21, 2012 8:43 am

It's unclear however why she was given DL in the first place and not further leave under the rules? Did she apply for further leave before her spouse visa expired? what date was the application made.

Thanks for replying Greenie:

The DL was given because she could not satisfy the KOL requirement.

We applied for FLR shortly before the spouses visa was due to expire around about xmas 2010.

What is the best way to proceed given our circumstances?

Any help would be appreciated.

jsnetman · Post by **jsnetman** » Wed Mar 21, 2012 8:48 am

Greenie

Just re-read your post and I guess we should just wait for the litigation to clear itself and see where we stand after that, as she is still some way off to the deadline of applying.

She was one or two questions short of passing the test on the final try but after 5 attempts got frustrated and gave up. I know if she tries again after some study she should pass it, but what I'm really after is not paying the fee for ILR if at all possible as I have already forked out considerably.

Thanks for your help

Post by **Lucapooka** » Wed Mar 21, 2012 9:15 am

You can't avoid the fee but you may be able to avoid the necessity to continue with further DL applications. Pass the KOL (before he current leave expires) and seek professional help to argue that an application for ILR should be considered. Where there any instructions (a letter) sent when she was granted DL suggesting why you were given this and that an ILR application could be made as soon as the KOL requirement was met? It would be odd to simply grant DL and then not go on to explain the significance and possible options.

jsnetman · Post by **jsnetman** » Wed Mar 21, 2012 9:33 am

We did get a letter, have not got it in front of me right now, but seem to remember it saying as she was outside of the rules DL was granted on compasionate grounds and could access public funds i.e child benefit.

We were all set for ILR application in 2010, but like I say she just could not manage to pass the Lfe in the UK test. So I applied for FLR on compasionate grounds (having two children close together causing difficulty for her passing the test) I was under the impression you had to have KOL even for FLR applications as it was listed as a requirement on the form but had a section to be considered on compassionate grounds.

Post by **Lucapooka** » Wed Mar 21, 2012 9:41 am

Seem to remember?

This is becoming very confusing due to a lack of clear information. Can you scan the letter and post it here or type the precise wording? You can't expect help if you don't even know the details yourself.

jsnetman · Post by **jsnetman** » Wed Mar 21, 2012 9:52 am

Will do.

Just had a quick look at the FLR form and I'm confused myself. It does not look like the form I used in 2010. As there is a section which relates to time needed to gain KOL. I may still have copies stored on my PC so give me some time and will back track to see exactly what I did.

jsnetman · Post by **jsnetman** » Wed Mar 21, 2012 10:02 am

Right it was an FLR application we made.

In section 4.1:

Is this the first time you have applied for a visa or extension of stay in one of the above categories.

I awnsered yes to this, it then said if awnswering yes then go to section 5.

In section 5 it requires you to give proof of KOL which we could not.

Section 5.6:

If you have answered “yes” to 5.6, please explain below how your circumstances prevent you from taking an English language test. Continue on a separate sheet of paper if necessary.

This is the bit where we explained her difficulty.

I will post the letter or wording tonight.

Thanks

Post by **Greenie** » Wed Mar 21, 2012 10:03 am

usually if you meet all of the requirements for settlement apart from KOL, the you can apply for further leave to remain on FLR(M) and would be given an additional two years limited leave, during which time she can pass the test and apply for ILR.

i think you need to find out exactly what application you made because it is unclear why your wife was given DL and not FLR under the rules.

jsnetman · Post by **jsnetman** » Wed Mar 21, 2012 10:35 am

It was definately FLR(M) application. But will scan the letter tonight and post its contents.

jsnetman · Post by **jsnetman** » Thu Mar 22, 2012 9:10 am

As requested here is the letter recieved:

Got my dates wrong and it is a 3 year extension.

What is my course of action once this visa is due to expire ?

Post by **Lucapooka** » Thu Mar 22, 2012 9:37 am

So it appears this was an application for FLR(M) rather than settlement. By the guidance, she would normally be expected to continue with another 3 year period of DL to complete a six year period before she is eligible for ILR. However, I think you should speak to a lawyer and make an application for ILR (when she passes the KOL) arguing that her time in the UK. There may be (I don`t know) caselaw to support this.

Post by **Greenie** » Thu Mar 22, 2012 10:00 am

It seems that she did not pass the A1 English language test either - that's why she was given DL and not further leave to remain under the rules.

jsnetman · Post by **jsnetman** » Thu Mar 22, 2012 10:28 am

According to this taken form the UK Border Agency:

"Discretionary leave

If we do not recognise you as a refugee or a person who qualifies for humanitarian protection, we may give you another type of temporary permission to stay in the UK. This permission is called 'discretionary leave to remain'. How long you are allowed to stay will depend on your circumstances, but it is unlikely to be more than three years initially.

We will only give you discretionary leave to remain in limited circumstances. If you apply to renew it when it expires, we will review your circumstances before deciding whether to give you further permission to stay. See Active review for more details. You will not be able to apply for permanent residence until you have lived in the UK for at least six years (or 10 years in some cases). To extend your residence permit or apply for permanent residence, you will need to complete application form HPDL - see Extend your visa for more information."

This looks to me that after her 3 years DL is up we apply on form HPDL for an extension and once she reaches 6 years(taking into account her 2 years on a spouses visa) we can bang in an ILR using the same form HPDL which does not carry a fee.

Please correct me if I'm not seeing this right.

Post by **Greenie** » Thu Mar 22, 2012 11:05 am

jsnetman wrote:According to this taken form the UK Border Agency:

"Discretionary leave

If we do not recognise you as a refugee or a person who qualifies for humanitarian protection, we may give you another type of temporary permission to stay in the UK. This permission is called 'discretionary leave to remain'. How long you are allowed to stay will depend on your circumstances, but it is unlikely to be more than three years initially.

We will only give you discretionary leave to remain in limited circumstances. If you apply to renew it when it expires, we will review your circumstances before deciding whether to give you further permission to stay. See Active review for more details. You will not be able to apply for permanent residence until you have lived in the UK for at least six years (or 10 years in some cases). To extend your residence permit or apply for permanent residence, you will need to complete application form HPDL - see Extend your visa for more information."

This looks to me that after her 3 years DL is up we apply on form HPDL for an extension and once she reaches 6 years(taking into account her 2 years on a spouses visa) we can bang in an ILR using the same form HPDL which does not carry a fee.

Please correct me if I'm not seeing this right.

no - HPDL is for people who have claimed asylum, been refused, but have been granted discretionary leave or humanitarian protection.

currently your wife would need to complete form FLR(O) after 3 years and then SET(O) once 6 years DL has been completed, but we are talking about an application she is due to make in 2 years time, I think it is premature to be talking about the form and fee now and I said there is ongoing litigation about this (the requirement to pay a fee for a human rights application).

jsnetman · Post by **jsnetman** » Thu Mar 22, 2012 11:20 am

Thanks Greenie:

This stinks, I have already paid I think 550 for the FLR process now I'm gonna have to pay 550 for FLR(O) then 972 for SET(O).

She has 2 british kids here, I know the UK have to be strict but this is taking it to the limits in our case.

I think it is premature to be talking about the form and fee now and I said there is ongoing litigation about this (the requirement to pay a fee for a human rights application).

I have taken this on board and hope something changes in the meantime.

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