ILR Application

[Linor2007]

Hi all, just looking for some advice, we (my wife and I) have a solicitor, but just looking for some piece of mind for my wife.

History:

My wife was here under an EEA family member visa that was granted until June 2014. This marriage broke down and a decree absolute was granted.

I am a British citizen (born in UK). My wife and I got married in 2011 and had our daughter in 2013.

My wife applied for ILR in April 2014 via the solicitor (she is employed in NHS and has full time employment), in August the solicitor received a letter indicating that the payment information was missing from the application, the solicitor responded with a copy f the payment information which the HO have confirmed that they have received, and the file is now waiting to be seen by the case officer.

The main concern is that over the last month or so my wife has been getting correspondence from capita HO, who keep telling her that the application has been refused and she has to make plans to leave the country and that the police may come and take her into detention, the solicitor has informed us that he has not received anything stating that the application has been refused and if it was then we would appeal, the solicitor has said that he is very confident that the application will be approved, it is just the threatening correspondence from Capita HO which is stressing us out, my wife has told them everything that we know, but each call seems to be more threatening.

Any advice or similar experiences?

Many thanks

[vinny]

What was her status before applying for ILR? EEA family member?

She cannot apply directly for SET(M), if she didn't have leave as a partner under the Immigration rules. 287(a) and D-ILRP.1.1 fails.

However, she may apply for confirmation of PR, if she retained her rights of residence under the EEA regulations.

Under what provisions (rules) did she apply for ILR?

[Linor2007]

Hi Vinny, thanks for taking the time to respond. She did retain her rights of residence. However it was the solicitor who having considered all the information that we had suggested going for ILR, so hopefully they have advised us correctly as they are immigration specialists.

In terms of 287(a) she did live with her spouse for a completed period of more than 2 years, before the marriage broke down.

In terms of D-ILRP1.1-she does meet all the requirements for indefinite leave to remain as a partner (I assume that is as a partner to me?)

Again thanks very much for taking the time to respond.

[vinny]

What was her status before applying for ILR? EEA family member?

Under what provisions (rules) did she apply for ILR?

[Linor2007]

Apologies, yes her visa was granted as a EEA family member.

I am not 100% sure under what exact provisions (rules) she applied, I know that she has been in the UK long enough to have the rights to apply for ILR under her previous marriage - if that helps, apologies.

She would qualify under 5(d)1 under the immigration regulations 2006

[vinny]

Which application form did she use in April 2014?

[Linor2007]

Apologies again - it was the Set(M) form on the advice of the solicitor.

Originally we were going to apply for permanent residence however, my wifes previous partner would not allow her to have his passport to make the application.

[vinny]

As I said above, I don't believe that SET(M) is going to succeed. She never had leave as your partner under the Immigration Rules.

If she retained her rights of residence after her divorce, then applying under the EEA regulations would have been more appropriate. The EEA national's passport may not even be necessary.

[Linor2007]

That is worrying, especially as the solicitor recommended going down this route, although I do not think she is applying as my partner, I think she is applying under the treaty rights associated with the previous marriage and the number of years that she has been living and working in the UK, but I cannot be sure of all the details.

If the Set(M) doesn't succeed and the fact that her existing visa (which expired in June) will not longer be valid once a decision has been made - does that put us in serious trouble - i.e. could she possibly be deported?

Thank you for all your responses.

[vinny]

SET(M) isn't appropriate for her with respect to her previous partner either, as they are divorced and she is under the EEA regulations! The only settlement category under the Immigration rules that may succeed is under 10-years Long residence. But, even then, she must show that she retained her rights of residence under the EEA regulations.

If she has retained her rights of residence and completed 5 years in the UK under the EEA regulations, then she may still apply for her confirmation of PR.

Note that they cannot consider her to be an overstayer, if she can show that she has retained her rights of residence, and continue to do so, under the EEA regulations.

[Obie]

The solicitor has given a very wrong advise

Not sure it is deliberate or incompetent.

That is a basic thing a competent solicitor should be aware of.

Come on. There can be no excuse for this.

He has not only made a wrong application but caused you unnecessary financial loss.

[Linor2007]

Ok, this is going to sound silly, but my wife has a residence card stamp in her passport - it is that residence card that is expiring / expired June 2014 - does this change things - apologies I have so many things going round in my head relating to the issues that have been raised by this application.

Apologies.

[Obie]

The application is wrong. There is no if's or but's about that.

You wife could only qualify under regulation 15 (1)(f).
Vinny has correctly stated the legal position.
Not sure why solicitor said she will need her ex partners passport.

I am sorry to say this, but this person that led you down this path, don't seem to know what he or she is doing.

[vinny]

After entry to the UK the holder can apply to the Home Office for a residence card. A residence card (an endorsement in the holder’s passport) enables the holder to re-enter the UK without the need for an EEA family permit for as long as they are the family member of an EEA national with a right of residence in the UK. A residence card, which is normally valid for five years, is simply a confirmation of the holder’s right of residence in the UK - it is not a compulsory requirement.

[Linor2007]

Guys,

Thank you for all your advices and assistance, I really do appreciate it and I will speak to my wife this evening and we will complete the application form for permanent residence. Can we have two applications in with the Home Office?

I am happy to challenge the solicitor on the rights and wrongs afterwards, but at the moment my main concern is making sure my wife is not going to be deported due to this issue.

[Obie]

What I find worrying , is the solicitor's confidence that the application will succeed.

Where is this confidence derived from.

The spouse was not granted an entry clearance or extension of leave under 284, how could he be confident she will succeed under 287.

Not surprised Capita are writing this.

There is clearly no section 3C leave, as she never had a leave before, and she has made the wrong application.

[Linor2007]

I am not sure where the solicitors confidence comes from to be honest - we had originally filled in the forms for the EEA route and the solicitor advised that we didn't need to go down that route, that the Set(m) was the right way to go and had continually said how confident he is that it will be accepted.

Just had my wife in tears on the phone which isn't nice.

So we need to complete the EEA application form asap and get it submitted, our passports and everything are with the home office under the current application, but reading the documentation it suggests that a detailed letter indicating the home office application number under which the documents are held should be acceptable.

We don't need the ex-husbands documentation?

Thanks again

[Obie]

Yes you do need the ex document up until the divorce, but not his passport. Evidence of his activity like employment.

After divorce, your wife need to show that she has been working.

She should not cry.

Worst case scenario she will leave under appendix FM. 30 months , 10 years route. I don't think she will be deported.

Not when she is married to a British person with British Child.

[Linor2007]

Thanks, we will complete the EEA4 form this evening and post tomorrow to the Home Office, as all our documents are currently with the Home Office under the Set(m) application will it be acceptable to write in the accompanying letter to the application that all documents (and list them) are currently with the Home Office and give the Home Office reference number?

Or do we need to withdraw the Set(m) application and wait for the documents to be returned, then apply using EEA4?

Many thanks

[Obie]

May be helpful to have a chat with the solicitor, as he is recorded as your representative on UKBA system.

[Linor2007]

Spoken with the UKBA today and it seems like a package has been returned to our solicitor today, which we are assuming is the full package of documents as the application was not the correct way to go. We have an appointment with our solicitor on Friday so hopefully the package will have been received by then so that we can review the options.

The suggestion from the UKBA was that it might be better for my wife to return to the Philippines and apply from there, stating that the waiting time is around 8 weeks, which with a 16 month old daughter would be gut wrenching, but at the same time if that got it sorted then it is something that we could cope (badly) with.

She is a skilled worker (doctor) and has a full time job in the NHS and her consultant has said that they will provide any evidence that we require to help.

Will wait and see what the solicitor says on Friday, but I really appreciate all the advice that you guys have given since I posted the original query.

Many thanks

[Obie]

Yes your wife is entitled to make an application in country.

I feel sympathetic for you plight. That you keep getting wrong from all the people you have contacted, other than this forum of course.

You wife has a British Child. Therefore exception 1 is engaged, as there is a British Child.

There is no need for her to make an application from outside the country.

Therefore even in the worst case scenario she does not qualify from PR, under the EEA regulations, which i am sure she qualifies under, i believe on the basis of the British Child, she will be entitled to an In country application.

[Linor2007]

You are correct Obie, this board is the only place that is giving us the correct information, we have been looking at potentially apply for FLR(FP), which would allow us to apply as my wife (partner) and parent of child (or daughter), there is a premium service in Belfast that we could avail of, which would hopefully get the application sorted in one day and remove the stress that my wife and I are currently experiencing.

[Obie]

Not sure you can use Premium Service.

But it is usually dealt with in weeks.

I did one for a person in September, and it was approved yesterday. That must be a better option than going to the Philippines.

Why has your wife been unable to use the EEA Regulations?

She has a good prospect in succeeding on that one, and she will be entitled to work whiles it is considered.

You can even do both applications, as the EEA one will confer the right to work, whiles it is under processing.

[Linor2007]

The suggestion from the person that she spoke to today regarding the EEA route was that she could not apply for that any longer as she is now married to a british national and it is now a matter of immigration.

If we go down the FLR(FP) route would that restrict her from working whilst under consideration?