Discretionary leave based on article 8

[silverbird]

Hello,

I applied for Discretionary Leave to remain, in May 2012 (based on article 8; I am married to a British citizen and have a child) I got refused December 2013 as home office didn't see our marriage certificate. I applied 4 days before the new rules on 9 July 2012.

I have appealed the case and will be going to court very soon.

However I am worried as the new rules in 9 July 2012 states you can't apply for Discretionary Leave based on Article 8, Family and Private life.

Will the new rules after 9 July 2012 be used to determine my case as my case is article 8 Discretionary Leave?
I mean could they appeal be refused because they have cancelled discretionary leave based on article 8 family and private life?

I would b glad if someone replies me.
Thank you

[julian1972]

The way judges interprets article 8 has not changed, they deal with cases by looking at the relevant case law.

[silverbird]

The way judges interprets article 8 has not changed, they deal with cases by looking at the relevant case law.

Thanks Julian1972 for your prompt reply.
I guess I have some sort of hope of winning the appeal. I have a few more questions.
1. Homeoffice said you can only apply for discretionary leave if you aren't eligible for any other application. In my case i can use FLR(M) but i dont have £18600 income so i am guessing I am not eligible to apply for FLR(M) is that enough reason to apply for discretionary leave?

2. Since I applied before the 9 July 2012 rules change, will my application still be decided based on the rules before 9 July 2012 (that is 6 years on discretionary Leave before i apply for ILR) ?

3. Will any housing benefit claim affect my appeal in court as my british spouse had to claim because t's been over 2 years since home office made me leave my job, will any housing benefit affect the court appeal?

I appreciate your time and look forward to your reply
Thank you

[julian1972]

You can't apply for FLR(M) as you do not currently have leave to remain. The best is to pursue the appeal and as your wife and child are both British your chances of winning at appeal is greater.

I applied for FLR(O) in 2010, was refused within 6 weeks. Appeal right refused, I asked for reconsideration immediately. In May 2013 I was granted. My wife and daughter are both British.

The best course of action is to pursue the appeal rather than reapplying.

[silverbird]

You can't apply for FLR(M) as you do not currently have leave to remain. The best is to pursue the appeal and as your wife and child are both British your chances of winning at appeal is greater.

I applied for FLR(O) in 2010, was refused within 6 weeks. Appeal right refused, I asked for reconsideration immediately. In May 2013 I was granted. My wife and daughter are both British.

The best course of action is to pursue the appeal rather than reapplying.

Thanks julian1972. I am guessing you applied for discretionary leave. Were you given the old 6 years( 3years + 3years) or were you given 10 years (2.5years x 4)?
Thanks

[julian1972]

2.5 years x 4. The HO applied the new rule post-July 2012 even though my application was made in May 2010.

The aim was to put me at a disadvantage!

[Amber]

The transitional provisions for DLR relate to the date leave was granted not when the application was made.

[dalebutt]

Transitional arrangements mean the date an application was made not when leave was granted.

https://www.whatdotheyknow.com/request/ ... 7.pdf.html

[Amber]

Not for DLR it doesn't as it wasn't an immigration rule! Read the rules:

Discretionary leave will no longer be available to those granted leave on the basis of Article 8 on or after 9 July 2012.

Where an individual submitted an application before 9 July 2012 and following a refusal at appeal it was considered and allowed on Article 8 family life grounds on or after 9 July 2012, and the Secretary of State is not contesting the determination, leave of 30 months‟ duration should be granted in accordance with Appendix FM (see paragraph D-LTRP.1.2).

Where an individual submitted an application before 9 July 2012 and following a refusal it was considered at appeal and allowed on Article 8 private life grounds on or after 9 July 2012, and the Secretary of State is not contesting the determination, leave of 30 months‟ duration should be granted in accordance with paragraph 276BE (see paragraph 276BE).

[dalebutt]

Where an individual submitted an application before 9 July 2012 and following a refusal at appeal it was considered and allowed on Article 8 family life grounds before 9 July 2012, and the Secretary of State is not contesting the determination, but is implemented after 9 July 2012 leave should be granted under the Discretionary Leave policy in place in force on 8 July 2012. 

If application was made before 8 July 2012, transitional provisions will apply.

[Amber]

The appeal was not considered before 9 July 2012! Thus, what you've highlighted doesn't apply. A grant of 30 months was correct.

[dalebutt]

Agreed, I only disagreed with your statement stating transitional provisions only apply from date when leave was granted as opposed to when application was made including DLR applications.

[Amber]

For the purpose of this thread, DLR, the transitional provisions only apply where leave was granted not applied before 9 July 2012. There was nothing erroneous in my statement. You just chose to attack my post as you have an issue with me. If it continues I'll put you on -thin ice-.

[dalebutt]

Thin ice? For correcting your post,? Please be my guest. I sincerely do not have an issue with you, we've both said what we needed to say, I have left it then and there.

You now stated " for the purpose of this thread" makes it clear, your previous post is more like generalising the matter as if in all cases transitional arrangements applies only when leave has been granted.