WON APPEAL CASE

MY HUSBAND AND I WON OUR APPEAL CASE BASED ON MARRIAGE APPLICATION OVER 2 WEEKS AGO THE ADJUDICATOR RULLED ON OUR BEHALF.

MY HUSBAND HAS BEEN FIGHTING HIS CASE SINCE FEB 2000, WHEN HE WAS INITIALLY REFUSED HIS LEAVE TO REAMIN. WE NOW WANT ADVICE AS TO WHAT HAPPENS FROM NOW ON , IF THE HOME OFFICE DO NOT APPEAL AGAINST THIS CASE, WHEN CAN HE BE GIVEN HIS STAY TO REMAIN IN THE COUNTRY, WOULD HE STILL BE GIVEN 2 YEARS BEFORE INDEFINATE STAY, OR DOES THE OLD RULE 1 YEAR STILL APPLY TO HIM.

ALSO CONSIDERATING THAT WE HAVE BEEN MARRIED FOR 10 YEARS CAN HE BE GIVEN INDEFINATE STAY RATHER THAN THE 2 YEAR WAIT. PLEASE ADVISE. THE ADJUCATOR RULED THAT THE APPEAL BE ALLOWED WITHOUT RECOMMEDATIONS.

THANKING YOU

Mimi, congratulations! (but please do not post in block capitals .... it is equivalent to shouting)

Ordinarily what would happen now is that a two-year spouse visa would be issued, subject as you say to the Home Office not appealing. However given that the two of you have been married for 10 years .... significantly over four years ..... I am struggling to think of a reason why an ILR should not be issued. But before you get too excited by that thought I have to say .... further opinions on this especially welcome.

And you, you are British? If so, if ILR is granted, can anyone think of a good reason why Naturalisation could not be applied for almost immediately?

l do apologise did not realise, i am british was born here, like you wrote i would welcome any other comments

thanks for your prompt reply.

Mimi,

What were the initial grounds of refusal - gives an indication of whether the HO will appeal the audjicator`s decision.

Assuming the HO do not appeal the adjudicator`s decision then your husband will have to get a 2 yr visa then apply for ILR no earlier than 28 days before it expires based on a subsisting relationship. Its irrelevant how long you have been married for. Alternatively the HO may exercise discretion and grant ILR immediatley - IMHO this is unlikely since it was not what the application was for in the 1st place.

it was refused on the grounds that it was not a subsisting marriage and that there were no proof to show that we will not recourse to public funds. My husband has however applied for ILR on the basis that he has been in this country for 10 years,(immediately after we won the appeal) because he was not an overstayer, when we got married he had initally been given 2 years working visa, which did not expired when we got married. How successful do you think this might be.

thanks again

mimi wrote:it was refused on the grounds that it was not a subsisting marriage and that there were no proof to show that we will not recourse to public funds. My husband has however applied for ILR on the basis that he has been in this country for 10 years,(immediately after we won the appeal) because he was not an overstayer, when we got married he had initally been given 2 years working visa, which did not expired when we got married. How successful do you think this might be.

thanks again

I am somewhat confused as to your husband's visa status prior and during the marriage. Any time spent while awaiting a decision from the Home Office where no valid visa covers said period is not counted towards the 10 yr period unless the HO grant leave to remain as they may pursuant to the Audjicator's decision.

''Any time spent while awaiting a decision from the Home Office where no valid visa covers said period is not counted towards the 10 yr period unless the HO grant leave to remain as they may pursuant to the Audjicator's decision''

Could you please explain this point further as my husband has been made to believe that his working visa was still valid although it had expired during the period it was with the HO.

1. If you apply for FLR (Further Leave To Remain) while your current LTR(Leave To Remain/visa) is valid then you are protected under a section of the relevant immigration act from being an overstayer even if the initial LTR expires during this 'decision period' by the HO.

2. This 'protected decision period' does not technically count as formal leave to remain in either the immigration acts, rules or operational policy. This is not much of an issue unless an application is refused as in your husband's case. A refusal stops the residence clock for any time based application e.g. the 10 yr rule. Unless the HO decide not to appeal the audjicator's decision and grant your husband FLR then:

a) any time he has spent in the UK until the date of refusal is irrelevant.

b) any time spent in the UK after the refusal (and once all appeal options are exhausted) is classed as overstaying.

3. If the HO grant FLR then the 'protected decision period' is counted as being part of the 10 yr rule by way of a concession in the operational policy.

If the HO are to appeal expect (or your lawyer) some paperwork around the end of April. Why did the HO deem the marriage as not subsisting?

just to keep you update. My husband has been given his passport back, with 2 stamps on it. one for limited residence valid for 2 years, and the other ILR, based on his 10 years residence.

We have been informed that he can apply for bristish passport after a year. I am not sure about the process of applying, and what documentation we would need to provide. Is he still subject to immigration rules.?

Mimi posted :-

We have been informed that he can apply for British passport after a year.

That is great that they have issued an ILR visa. But I don't understand why you have been told that he needs to wait for a year before applying for Naturalisation. As he is married to a British Citizen ... you ... the ILR requirement is that he merely needs to have ILR, rather than having it for one year.

Other opinions about this very welcome .... but can anyone think of a reason why the Naturalisation application should not go in straight away? He has clearly been here more than three years.