Asylum And Discretionary leave to remain

[Anila70]

Hi, need advice.

Asylum And Discretionary leave to remain
I tried to make it short and as clear as I can. English is not my first language.

I am a Pakistani originally and came to England in July 1999 on a visit visa and claimed for asylum within country on the basis of forced marriage. (Genuine case)

In August 2003 I married to a British citizen.(love marriage.) in Bristol. A solicitor applied for ILR on the basis of my marriage to a British citizen in 2003. I was granted a Discretionary leave to remain from 19th Jan 04 to 12th Jan 2006. Then I applied again in 2006 and had had granted another Discretionary leave to remain from 16th Feb 2006 to 14th Feb 2008. Third time I approached the solicitors and they applied on my behalf and I am granted 3rd time Discretionary leave to remain from 22nd Feb 2008 to 12th Jan 2010.

I cancelled my asylum application on the instruction of Home Office because I was applying on the basis of marriage.

The last letter I received from HO states as follows;

[b]“Although you do not qualify for leave to remain in the UK under the Immigration Rules, it has nonetheless been decided that discretion should be exercised in your favour. You have therefore been granted limited leave to remain in the UK in accordance with the principles set out in the HO Policy instruction on Discretionary Leave. You have been granted Discretionary Leave to remain until 12th January 2010.

You should understand that, as you have not been granted leave to remain under the Immigration Rules relating to the spouse of a person present and settled in the UK, you will not qualify for ILR on the basis of your marriage at the end of this period of Discretionary leave.

The leave you have been granted may be subject to review before it expires if, e.g. the circumstances under which it was granted cease to exist.

Before the period of leave that you have been granted expires, you should either depart from UK or apply for an extension of stay, explaining the basis on which you are seeking to remain longer. Any application will be considered in the light of the circumstances prevailing at that time.

Where an extension of Discretionary Leave in sought, the request will be subject to an active review. A person will not become eligible for settlement until they have completed 6 years of Discretionary Leave.

If your application to extend your stay is refused, you will be advised of the reasons for this and of any right of appeal against that decision. “[/b]
[/b]
During this time I have two beautiful Kids. A boy 2 on 22nd Jan 2009 and a girl 5months now. Both obviously holds British nationally due to their father.

I was working since 2000 I was granted the permission to work until end of 2006. I stopped because my first baby was born in Jan 2007. Since than my husband is looking after all of us. I have NIC number and paid all taxes. Never claimed any social or public funds, never involved in any criminal activity, hence living a normal peaceful life like any other respected person.

All required documentation was provided to HO every time I applied for ILR. Included British Life test.

I thought solicitor will tell me for whats going on? What is Discretionary leave? Whether I should apply for extension of stay or ILR? I paid £1500 this time which is a rip off and due to solicitor’s misjudgement about my case.

I am very scared of the thought of going back, leaving my kids, without my husband. For me, my home is with my husband and kids. we wont be able to live without each other.

Should I approach solicitor again or go to HO personally? How do I put my case together this time? Any ideas/advice or expertise will help.

[Ben]

Hi Anila70,

I'm personally not too family with cases such as yours, but I must say I can't really see the issue (unless of course, there's something I've missed).

You were granted Discretionary Leave to Remain from 19th Jan 04 to 12th Jan 2006, then again from 16th Feb 2006 to 14th Feb 2008, then again from 22nd Feb 2008 to 12th Jan 2010.

As you have said, the HO have informed you "A person will not become eligible for settlement until they have completed 6 years of Discretionary Leave."

So, does that not mean that, upon expiration of your current DLR, on 12th Jan 2010, you will have completed 6 years of DLR and thus eligible for settlement (ILR)?

[rom]

Hi there,

I am in the same situation like you, I am going soon to apply for my thirth time as well and hoping to apply for ILR IN 2011 which is taking me 6 years with DL

As the HO already say (Where an extension of Discretionary Leave in sought, the request will be subject to an active review. A person will not become eligible for settlement until they have completed 6 years of Discretionary Leave), yes 6 years with DL you can apply for ILR.


(You should understand that, as you have not been granted leave to remain under the Immigration Rules relating to the spouse of a person present and settled in the UK, you will not qualify for ILR on the basis of your marriage at the end of this period of Discretionary leave). I Never received this message from the home office, when was that??

-This is from the HO website about DL (Discretionary leave to remain is given only 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 United Kingdom for at least six years (10 years in some cases). To extend your residence permit or apply for permanent residence, you will need to complete the appropriate form)

I suggest you to call the HO before january 2010 and explain your situation to them so that they can send you the appropriate form.
Accumulate all evidence(same adresse with husband) from your first DL and prouves that your marriage still on going.
-------------------------------------------------------------------------------

For you to read.

2. CRITERIA FOR GRANTING DISCRETIONARY LEAVE

2.1. Cases where removal would breach Article 8 of the ECHR
Where the removal of an individual would involve a breach of Article 8 of the ECHR (right to respect for private and family life) on the basis of family life established in the UK, they should be granted Discretionary Leave. Leave should not be granted on this basis without a full consideration of the Article 8 issues. Please refer to the API on European Convention on Human Rights. Further guidance is also provided in an API on Article 8 of the ECHR.

This category applies to both asylum and non-asylum cases. In non-asylum cases it is most likely to arise in the context of a marriage application where, although the requirements of the Rules are not met (e.g. because the correct entry clearance is not held), there are genuine Article 8 reasons which would make removal inappropriate. Discretionary Leave should not be granted under Article 8 in non-asylum cases without reference to a senior caseworker.

Policy on the consideration of cases of those persons liable to be removed as illegal entrants or deported who have married a person settled in the UK is contained in DP3/96.
2.2. Cases where removal would breach Article 3 of the ECHR but where Humanitarian Protection is not applicable
Where a person's removal would be contrary to Article 3 of the ECHR (see the API on European Convention on Human Rights for further details) based on a protection need arising from a real risk of the deliberate infliction of ill treatment on return, they will normally qualify for Humanitarian Protection (unless they fall to be excluded from those provisions - see section 2.6). However, as explained in the API on Humanitarian Protection there are some cases where the Article 3 breach does not arise from the deliberate infliction of ill treatment, eg where a person?s medical condition or where severe humanitarian conditions in the country of return would make removal contrary to Article 3. Persons falling into this category should be granted Discretionary Leave rather than Humanitarian Protection.

[shandave2001]

Hello Anila

As Benifa said, I m too trying to grasp the issue in ur case. It seems probably u r worry what will happen once ur stay based on discretionary leave expires in 2010. If that is the case, there is nothing to worry as u r married to a British citizen. Before ur stay expire in 2010, u can apply for spouse visa based on ur marriage to a British citizen.

Now second issue is whether u need to go to ur home country to get spouse visa, the answer is ‘No’ as u have longer stay to remain in this country.

Now there is another point which may be ur main question. Why u have to wait until 2010 when ur discretionary leave expires and then u will be able to apply for spousal vias based on ur marriage with British citizen? Why cannot u apply now for spousal visa which will supersede ur discretionary leave? Yes, that is valid point, I m afraid I don't know the answer to this, so I wait for someone expert to answer this.

£1500 to solicitor, well, solicitors charge their fees, however, he should assist u and provide answer to ur any concern.

[eighteenofour]

Hi Anila70,

I am sorry I do not have anything to bring to table about your case, but can you let me know the procedure for the application for Discretionary Leave as I have been unable to find any forms or guidelines on the UK Border Force Website. I will be happy if you can let me know how long it tkes and how much it is too.

Kind Regards

Hi, need advice.

Asylum And Discretionary leave to remain
I tried to make it short and as clear as I can. English is not my first language.

I am a Pakistani originally and came to England in July 1999 on a visit visa and claimed for asylum within country on the basis of forced marriage. (Genuine case)

In August 2003 I married to a British citizen.(love marriage.) in Bristol. A solicitor applied for ILR on the basis of my marriage to a British citizen in 2003. I was granted a Discretionary leave to remain from 19th Jan 04 to 12th Jan 2006. Then I applied again in 2006 and had had granted another Discretionary leave to remain from 16th Feb 2006 to 14th Feb 2008. Third time I approached the solicitors and they applied on my behalf and I am granted 3rd time Discretionary leave to remain from 22nd Feb 2008 to 12th Jan 2010.

I cancelled my asylum application on the instruction of Home Office because I was applying on the basis of marriage.

The last letter I received from HO states as follows;

“Although you do not qualify for leave to remain in the UK under the Immigration Rules, it has nonetheless been decided that discretion should be exercised in your favour. You have therefore been granted limited leave to remain in the UK in accordance with the principles set out in the HO Policy instruction on Discretionary Leave. You have been granted Discretionary Leave to remain until 12th January 2010.

You should understand that, as you have not been granted leave to remain under the Immigration Rules relating to the spouse of a person present and settled in the UK, you will not qualify for ILR on the basis of your marriage at the end of this period of Discretionary leave.

The leave you have been granted may be subject to review before it expires if, e.g. the circumstances under which it was granted cease to exist.

Before the period of leave that you have been granted expires, you should either depart from UK or apply for an extension of stay, explaining the basis on which you are seeking to remain longer. Any application will be considered in the light of the circumstances prevailing at that time.

Where an extension of Discretionary Leave in sought, the request will be subject to an active review. A person will not become eligible for settlement until they have completed 6 years of Discretionary Leave.

If your application to extend your stay is refused, you will be advised of the reasons for this and of any right of appeal against that decision. “
[/b]
During this time I have two beautiful Kids. A boy 2 on 22nd Jan 2009 and a girl 5months now. Both obviously holds British nationally due to their father.

I was working since 2000 I was granted the permission to work until end of 2006. I stopped because my first baby was born in Jan 2007. Since than my husband is looking after all of us. I have NIC number and paid all taxes. Never claimed any social or public funds, never involved in any criminal activity, hence living a normal peaceful life like any other respected person.

All required documentation was provided to HO every time I applied for ILR. Included British Life test.

I thought solicitor will tell me for whats going on? What is Discretionary leave? Whether I should apply for extension of stay or ILR? I paid £1500 this time which is a rip off and due to solicitor’s misjudgement about my case.

I am very scared of the thought of going back, leaving my kids, without my husband. For me, my home is with my husband and kids. we wont be able to live without each other.

Should I approach solicitor again or go to HO personally? How do I put my case together this time? Any ideas/advice or expertise will help.

[neaiz]

Hi,Anilla
I just read your case and I'like to tell you that my wife got exactlly the same case like yours,I was wondering what happen after your DLR has expired in Jan 2010,any good news?,as we have been advise to make an apponintment with the home office and submite the ILR application by hand when the six year expired,I hope you have done so not threw the solicitors or by post.
Please let me know the progress of your case.thanks?jamal

[DevilzAdvocate]

Hello Anila

As Benifa said, I m too trying to grasp the issue in ur case. It seems probably u r worry what will happen once ur stay based on discretionary leave expires in 2010. If that is the case, there is nothing to worry as u r married to a British citizen. Before ur stay expire in 2010, u can apply for spouse visa based on ur marriage to a British citizen.

Now second issue is whether u need to go to ur home country to get spouse visa, the answer is ‘No’ as u have longer stay to remain in this country.

Now there is another point which may be ur main question. Why u have to wait until 2010 when ur discretionary leave expires and then u will be able to apply for spousal vias based on ur marriage with British citizen? Why cannot u apply now for spousal visa which will supersede ur discretionary leave? Yes, that is valid point, I m afraid I don't know the answer to this, so I wait for someone expert to answer this.

£1500 to solicitor, well, solicitors charge their fees, however, he should assist u and provide answer to ur any concern.

[Anila70]

Hi All,
I have a good news to share with you all.

I have received my ILR today by post. whey............

It took HO 9months to decide my case. Never mind. I am so happy to be with my husband and my beautiful children. Alhamdolillah (thanks God)


Thanks to all for your support and good luck to those who are still waiting.

With best wishes
Mrs Anila

[HRY2005]

Congratulations and I wish you all the best.

[Casa]

Anila, wonderful news. Alhamdullilah, enjoy life with your family.

[sallys]

Hi,

Sorry i know this post was some time ago but i would like some advice on a similar matter.
My husband was granted Discretionary LTR in June 2010 based on article 8 human rights, based on the fact we were married and he has a step daughter (my daughter).
We have just re-applied for a further 3 years Discretionary LTR, however have received a letter back from the HO explaining that it is a complex case and they will do everything possible to deal with it quickly as possible - this has worried us!
With the application form we sent our daughter's birth certificate (born after the LTR was issued) and various documents, including employment details for both of us. We have booked a holiday for the end of December, and have provided proof of the booking to the HO.
My husbands employer has contact the HO to check the status of the applciation (to cover their backs) and have been advised we are ok until December, however he must show them his new visa once it is issued.

I have 3 questions..
1) Has anyone ever been refused the extension of Discretionary LTR (Our circumstances still the same, however now we have 2 daughters and both work full time)? Am i whittling needlessly?

2) How long did it take for the Discretionary LTR to be issued?

3) Do we have to submit biometrics again? As we have not received any letters requesting this.

Any help would be much appreciated
Thank you in advance.