wife on discrecionary leave (old rules)

[jake81]

Hi Immigration Experts,

I am a British born citizen. My wife was granted 3 years discresconary leave to remain on the basis of our continuing relationship akin to marriage, which at the time of application was existing for less than two years despite us having a child together. We now have two children who are both British born citizens.

A brief history:

2008 - Entered on Tier 4 Visa
2009 - Began cohabiting
2010 - First Child born
2011 - Granted discrescionary ltr on flr(o)
2011 - Married
2014 - second child born
2014 - ltr will expire

In summary, we have been cohabiting for over 4 years, married for three and have two (British) children together.

Please can you advise:

1. Are we in a position to apply for ILR at this stage?

2. What is the most appropriate application form to complete?

3. Can you offer any other advice that will help our application?

Thanks in advance for your help.

Jake

[Amber]

No, you must extend on FLR(O) for a further 3 years DLR after which you can apply for settlement.

[jake81]

Thanks for your advice.

If it's not too much bother, please can briefly explain why it's better for me to extend with flr(o) instead of submitting flr(m) at this stage?

Thanks again.

[Amber]

3 reasons:

1. FLR(M) would be a new 5 year route to settlement.
2. FLR(M) has an English Requirement.
3. FLR(M) has a Financial Requirement.

[jake81]

Thanks for your clarification. We have decided to send in an application using FLR(O).

Please can you answer another question for me - what in your opinion might be considered a "compelling reason" to grant ILR under section 4.4 of the DL policy?

Thanks.

[Amber]

Please link to the policy, as what I see states:

Applicants granted Discretionary Leave before 9 July 2012
 Those who, before 9 July 2012, have been granted leave under the DL policy in force at the
time will normally continue to be dealt with under that policy through to settlement if they
qualify for it (normally after accruing 6 years continuous DL). Further leave applications
from those granted up to 3 years DL before 9 July 2012 are subject to an active review.

The "particularly exceptional or compelling reasons" for DLR generally related to children, a number of cases eventually lead to children being settled after 3 years DLR.

For adults, perhaps where there was a medical need.

[jake81]

Thanks for your reply.

Those are the sections I was referring to:

... Decision makers must consider whether there are any circumstances
that may warrant departure from the standard period of leave. See section 4.4 above.

and

4.4 Non-standard grant periods: Longer periods of stay
 There may be cases where a longer period of leave is considered appropriate, either
because it is clearly in the best interests of a child, (and any countervailing considerations do
not outweigh those best interests), or because there are other particularly exceptional or
compelling reasons to grant leave for a longer period or (ILR).

What are the chances of our situation being considered as "compelling grounds" ?

GROUNDS:

Spouse of a person present and settled in the UK, however "qualifying period" was completed whilst holding DLR, ie. cannot comply with paragraph 287(a)(i) due to leave being granted outside of the immigration rules, despite meeting the remainder of paragraph 287(a) which allows ILR under paragraph 288.

AND the following also applies:

Section EX: Exception

EX.1. This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who
(aa) is under the age of 18 years, or was under the age of 18 years when the
applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years
immediately preceding the date of application ;and
(ii) it would not be reasonable to expect the child to leave the UK;

In your experience, is it worth us persuing this, or would we be better off just asking for another three years DLR before seeking settlement?

Thanks for all your advice.

Jake

[Amber]

I would think another 3 years unless there are compelling reason? The other quotes are immaterial unless the spouse has completed 2 years FLR(M) or spouse leave to enter.

[Rayking]

Sometimes I wonder if amber has worked or working for HO,you virtually know everything about these stuffs!
Kudos to you tbh. Lol

[julian1972]

He/she is probably a solicitor or barrister, and a very good one.

Caseworkers at the HO have little or no formal legal training, I won't even be surprised to find out that those that draft the immigration rules have no legal training. Caseworkers simply tick boxes to arrived at whether to refuse or approve an application.

[Rayking]

Honestly, some of these guys deserve an award!it's unquantifiable the stress and finances they save some of us novices on here.it's just incredible how much they've dedicated to helping others.
Like you said I won't be surprised if he/she is a lawyer/solicitor or someone who deals in legal stuffs.
I will just say if you believe in God,God bless you so much and others!