DL - LOTR refused - Settled Partner & British Children

[UK2013A]

Dear All,

I need your helpful suggestions with regards to my Mrs visa application.

The scenario is;
I have got ILR granted in November 2013.
Our Children have become British Citizen on 5th March 2014.
My Mrs has been in the UK since 2004 – she came to UK on spouse visa (her first relationship never established).
She has filed a legal divorce in UK under the provision of over 5 year separation in Dec 2013.

She is an over stayer but last she was granted LOTR in May 2011 and was aligned to my previous visa Category T1 General until October 2013. We were in impression that she had Discretionary Leave to Remain until we applied for her extension and got refusal as she couldn’t qualify under the new rules of Appendix FM as a partner (we couldn’t provide 2 year cohab month to month proof) or as a parent (she got the refusal before the kids got their citizenship). We got her SAR file which explained form the case worker notes in 2011 that she was only granted LOTR as she established her family life with me.

We have appealed against the refusal in first-tier tribunal through our solicitor and got the hearing date in mid-July 2014 – Now that we have found that she was granted LOTR not DL in 2011 – I am thinking to submit a new application FLR(O) or FLR(FP) ?! for her as there are less chances for the appeal to be successful even if gets through will only get 30 months under new rules 9 July 2012 after the long and costly process. We have an appointment to see our solicitor on Wednesday this week so see what they suggests – I personally don’t want to rely on her advice as because of past experience.

I need help from you guys;
If we submit a new application what form would you suggest to fill FLR(O) or FLR(FP)?
What category we would apply – partner – British children – or Article 8 under new rules?
Before we apply do we have to withdraw from the appeal?
Do we get the refund if we withdraw the appeal?

Awaiting your response guys specially Amber and other senior members.
I may come back to you guys with more queries if get stuck before submitting the application.

[Greenie]

I am a bit perplexed as to what they think the difference between LOTR and DL is? DL is LOTR. Leave granted outside the rules on family life grounds is usually DL.

On her residence permit does it state that she has recourse to public funds? are there any other observations on the permit? When she was granted the leave what did the residence permit say? I would personally proceed with the appeal. It it doesn't succeed then you could try making a new application but if she has been given the right of appeal then it is best to exercise this as you usually have a better chance before a judge.

You say she is an overstayer - what do you mean by this? Do you mean she was an overstayer until she was granted leave in May 2011?

[UK2013A]

Thanks for the reply Greenie.
I myself never heard about LOTR before - we were in impression that she was granted DL outside the rules in May 2011.
Her visa stamp just stated a limited leave to remain and no recourse to public funds.
So we put the appeal in process after refusal and requested SAR file - there i found LOTR which then I googled and found that its not DL but another type of leave outside the rule on compelling grounds where you don't expect an extension at the end of leave and is not lead you to the ILR.
That's right she overstayed until 2011.

[UK2013A]

suggestions are open here please...

[UK2013A]

suggestions are open here please...

Any suggestions guys..... please!

[Rockefeller]

Hi UK2013A
I will certainly suggest you proceed with the appeal as your partner appeared to have a strong family life in the UK given you and your children strong immigration status. The judge will most likely explore the strengths of her case better than the HO will do.

If you were to make a fresh application your best option would be to go through the partners' route but bear in mind that you will have to meet the financial threshold of £18 600 alongside the reasons why you have been refused in the first place. They don't like people who are in subsisting relationship like your partner applying under parent route.

On the balance of probability, I will go ahead with the appeal. I can't see a judge sending a woman whose partner have settle status in UK and whose children are British citizens home in the absence of serious issues such as poor immigration history and criminal records whereas the HO can simply refuse her again on the same reason as before. The fact your partner was granted LOTR have repaired her overstaying status. I will place safe by going through the appeal.

[UK2013A]

Thanks for you reply Rockefeller.

We had meeting with our solicitor - they say that leave granted to my Mrs in 2011 was DL out side the immigration rules - where it doesn't say any where it was DL - though notes from the HO caseworker reads LOTR .... So God knows what was it!!

Our solicitor has sent out a letter to HO for reconsideration as because of latest situation (our children got registered as British). Lets wait and see if they would reconsider the case!

Meanwhile I have been thinking if we go to the first-tier tribunal - what are the chances;
if the leave granted in 2011 was DL and not LOTR then we have strong case as HO should have considered the case under old rules.
and if it was a LOTR then judge may pass this back on to HO to consider the case under new rules....... and grant her 30 months leave.... that means we got to wait for 5years OR 10years?? before they grant her ILR.....

Anyone with similar situation or have any suggestions or advise please feel free to comment.
Many thanks

[Olasunkanmi]

@ UK2013A, your best option is still through the appeal tribunal and the grounds of appeal should specifically include Article 8 right to private life which is likely a ground that developed after the application. The judge will definitely allow the appeal because of the children who are now British and also because of your settled status.

The likely outcome after the appeal will be the 10yrs route to settlement and you guys can then decide to change it to 5yrs spousal visa if you meet the requirement.

Our solicitor has sent out a letter to HO for reconsideration as because of latest situation (our children got registered as British). Lets wait and see if they would reconsider the case!

It seem that you got ILR and your children also became British after your mrs application have been submitted? If this is the case, then the reconsideration request might not go well as HO will only consider all evidence submitted with application and not new grounds.
The only way to add new grounds is through appeal or fresh application and in your case, judges usually give preference to British children when it comes to article 8 claim.

[UK2013A]

Thanks for your reply points noted.
Just to check further re your comment below;

'The likely outcome after the appeal will be the 10yrs route to settlement and you guys can then decide to change it to 5yrs spousal visa if you meet the requirement'

* My Mrs was an overstayer in the past - would it be a problem to meet the requirement for 5 year route?!
If NOT then is she able to apply under 5 year route if we meet all other requirements - can we submit a new application under 5 year route and withdraw from the appeal?! (we are legally not married as she is currently in the process of getting legal divorce from her ex - would this affect at all to go through 5 year route!?)

Awating to see your reply.

Thanks