ILR catch-22. Is there any way through?!

[vinny]

Perhaps IA464152013 [2014] UKAITUR IA464152013 (17 June 2014) might help.

[kafuffle]

Thank you so much for finding that example for me, Vinnie. It is very encouraging and helps me to see what important information I must present, particularly re: my lack of ties in Canada. I would like to make as complete a case as possible so hopefully not have to go for appeal, at least not beyond First Tier.

The help I've received here on this forum has been invaluable. I thank all of you.

[kafuffle]

So sorry, Vinny...misspelled your name.

[vinny]

Also, the obstacles faced by your husband in relocating.

Obie raised an interesting possibility in another thread about being the Primary carer for an Adult British citizen under the EEA regulations.

[kafuffle]

Thank you Vinny. I will look into the information you mentioned.

I am relatively certain that my husband's doctor will forbid air travel at the altitude and length of time needed to reach western Canada....a ten hour flight. He has a blocked carotid artery, peripheral artery disease, damaged kidneys and has left-side paralysis so is unable to move around. He is at elevated risk of another major stroke as it is. Such a flight would make that risk even higher. This is an insurmountable hurdle that would come even before the obstacles that would be met settling in. I feel it is important for me to give proof that my ties are here, that I have no close ties with Canada so that they don't decide to separate us and send me back. I'm certain I can provide ample evidence. But if my application for FLR(FM) is refused, what could I do? Would I have the right to appeal? I couldn't find a definitive answer to that question when I searched. If you.....or someone else.....knows the answer, please let me know.

Thanks again.

[vinny]

There is a right of appeal under 82(2)(d), if you make a valid in-time application and the result of the refusal is that you have no leave to remain.

That is, make a valid application by post, shortly before your leave expires, so that they will decide after your leave expires.

However, I believe when the new Immigration Act 2014 comes into force, the in-country rights of appeal would be more restricted to human rights issues.

[kafuffle]

I arrived November 7 so have 'til May 6 (six months). Are you saying that I must send an application postmarked just before May 6 so that they have no time to decide before my leave is up. So I stay until I hear from them? But I'll be an overstayer, won't I? How can that be a good thing? Frightens me. Are you saying that I only have the right to appeal if I have lost my leave by being an overstayer? Or am I not considered an overstayer if there is an application in and a decision to be made? This is very confusing. I thought it would be important to get an application in early. But if I understand correctly, if I send in an application early/on time and it is refused before my leave is up, I have no right to appeal. I like to be honest and upfront but it seems a dangerous way to go. I won't be forced to be dishonest but I will be sly/cautious if necessary.

[kafuffle]

Re: your reference to the Immigration Act 2014, I read it and it taxed my brain. Can you please explain in what way it may affect me. Sorry, but it needs interpreting....to much legal gobble-de-goop for my old brain.

Thank you, Vinny

[Obie]

It is a catch 22 situation.

If you apply before your leave expires, for FLR (FP), you will be refused on the basis that you are in the UK on a visitors visa.

However you will get a right of appeal if as a result of the refusal, you are left without a leave.

[kafuffle]

Is refusal automatic? Do not the 'exceptional circumstances' come into play when the application is made? The application asks for information re: exceptional circumstances. Do they simply ignore that? Is it only brought into the picture on appeal?

[vinny]

On another forum, a member reported that a FTT Appeal allowed under FM imigration rules for a visitor, despite Sabir (Appendix FM- EX.1 not free standing) [2014] UKUT 63.

The judge stated:

14. It is submitted in the skeleton argument that the appellant does meet the provisions of the Immigration Rules. It is said that she meets all the substantive requirements relating to partner (relationship, maintenance, accommodation etc) with the exception of immigration status. The respondent asserts that the appellant does not satisfy E.LTRP.2.1 as she is in the UK as a visitor. However, it is submitted that she does not have to satisfy this aspect of the Rules if EX.1 applies as it is clear that the provisions of E.LTRP.2.1 are in the alternative, which is seen by the use of the word ‘or’ after (b). The final paragraph is intended to apply to the entirety of that rule and not merely to (c). It is submitted that this is the only sensible interpretation. If it does not apply to all sub-paragraphs, it means that those persons who in the UK with temporary admission (and therefore no valid leave at all) or those who have overstayed are in a better position than individuals who are in the UK lawfully, albeit as a visitor. This argument was not made in the recent case of Sabir [2014] LIKUT 00063.

15. I find that this is a strong submission particularly as the alternative interpretation would seem to be nonsensical. In so far as I need to make a decision as to the application of the new Rules I have decided that EX.1 applies to the appellant's case and that she satisfies the provision of either (a) or (b). She has a genuine and subsisting relationship with two children who are in the UK and British citizens. It would not be reasonable to expect them to leave the UK. There are also insurmountable obstacles against family life continuing outside of the UK. The appellant’s husband has lived his whole life in the UK and is in a stable job here. Their two children are attending nursery school and the appellant’s husband has an elderly mother in the UK.

16. At the end of the hearing I allowed the appeal on Article 8 grounds more generally. It seemed clear that the appellant enjoyed family life with her husband and twins in the UK and that it would be an unreasonable disruption to them all if she had to return to either Spain or Argentina in order to make an application. There are exceptional circumstances in this case particularly relating to the appellant’s Spanish residency that has led to her not given the correct information as to regularise her stay in the UK. It would therefore be disproportionate in terms of Article 8 more generally to require her to leave the UK merely to make a further application.

17. Accordingly the appeal is allowed.

DECISION

The appeal is allowed under the Immigration Rules (Appendix FM)
The appeal is allowed on human rights grounds (Article 8 ).

The UKVI sought permission to appeal to the Upper Tribunal. But permission was refused.

2. The grounds of appeal submit that the Judge misconstrued the approach to EX.1 and failed to give sufficient reasons why family life could not be exercised outside the UK.

3. The submission that there are no findings on insurmountable obstacles is without any merit whatsoever. The judge expressly identified the insurmountable obstacles preventing family life continuing outside the UK (paragraph 15) and was entitled to reach the conclusions at paragraph 16.

4. As to the Rules the Judge was entitled to take the view that she did in relation to E-LTRP.2.1 for the reasons she has provided (paragraph 14) in light of the legal arguments before her and has not arguably erred in law. In any event, the judge went on to allow the Article 8 appeal in the alternative.

5. Permission to appeal is refused.

[Obie]

I suspect the Government is seeking to discourage people from deliberately coming in an applying under Ex 1.

I think the judges decision under Ex 1 can be described as Obiter, as it can be seen , that he found that , in any event, the Judge allowed the appeal under Article 8. Therefore whether or not the Sabir point was taken, would not have affected the decision.

Vinny as you will know the FTT is expressing a view.

Sabir is binding, unless the Upper Court's overturns it, it will be final.

I find the case you cited and kindly brought to our attention most helpful, unfortunately it will not bind the FTT.

I find it stupid that a person illegally in the UK will be in a better position than someone with a visitors visa .

But one has to look at it in context. The government is seeking to prevent people riding coaches and horses around the Appendix FM system by coming in and the applying using the benefit of Appendix FM.

Over stayer are not seeking to circumvent the system. They had been years for a while, probably had children who had lived here for seven years or happen to fall in love with a British or settled person and gave birth to offspring who happened to be fortunate to be a British.

So there are public interest considerations.

The failure of the FTT Judge to recognise it is quite striking.

It is not as black and white as the judge made it.

[vinny]

Or am I not considered an overstayer if there is an application in and a decision to be made? This is very confusing. I thought it would be important to get an application in early. But if I understand correctly, if I send in an application early/on time and it is refused before my leave is up, I have no right to appeal.

That's correct. Note that the application must also be valid.

[Obie]

I can't help noticing that you are having immense fun in that other forum Vinny.

I might consider joining you in the not too distant future.

[vinny]

That will be great!

[Obie]

If as a result of doing so, you will not break any of there rules, it will be great if you could copy and paste some of these legally troubling issues on our forum.

[kafuffle]

Thank you both, Obie and Vinny for your help.

Although just a wee bit cynical, this seems to be the way it goes.

1) application is received

2) payment is taken

3) application is read, although possibly after sitting for a very long time

4) reason to refuse - visitor visa - is noted

5) exceptional circumstances are noted - or not - and ignored no matter what compelling circumstances

6) application is refused

7) Appeal rights are not given if applicant is legally in the UK so application is sent very shortly before expiry of visitor visa (therefore valid) so that there is no time for it to be considered or even received before visa expires. Applicant overstays...becomes illegal....so has appeal rights.

appeal is made

9) If appeal is granted, Home Office will/might take matter to Upper Tribunal no matter how senseless/cruel/stupid their case is.

Am I right so far?


My questions:

1) Does Home Office EVER consider and accept exceptional circumstances? Do they ever do the right thing? I would like to read of a case where they have done, where an applicant has not had to resort to appeal.

Thanks again

[kafuffle]

Looking at this dilemma from a financial point of view only, I see my two options this way:

FLR(FP)

initial application £601

almost certain need for appeal £140

2 1/2 year renewal £601 or more

5 year renewal £601 or more

7 1/2 year renewal £601 or more

in 10 years, application for ILR (probably as bereaved partner) £885 or more

UK Ancestry Visa

initial application £289

in 5 years, application for ILR £885 or more

only other costs are return flight to Canada and back to UK as well as long journey to nearest office for Biometrics £500

On the surface, considering finances only, Ancestry seems best in the long run but.....

A few questions to help me decide which route to go please

1) Given my husband's medical condition and life span prognosis, is there an advantage to FLR(FP), any protection for me when he dies or goes into care? Or any disadvantage to Ancestry as it is not connected in any way to my marriage?

2) Re: ancestry - I have no savings but do have a guaranteed monthly pension income of £620 which I can live on frugally. Will this offset the lack of savings?

3) Re: ancestry. It is a work visa. I have had and will again have an eBay shop which can generate at least £200 per month. Will this amount suffice, added to my pension income? Will it be considered 'work'? Caring for my husband is a full time job so work outside the home is not possible.

4) There is not an upper age limit, so they say, but is that true? I will be 70 soon. Chipper and healthy but 70 all the same.

5) Do either of these routes seem feasible? Is there more to consider?

6) If I apply for FLR(FP) now and fail, can I subsequently apply for UK Ancestry?

Answers to those six questions are crucial to helping me decide. Can anyone help please?

Thank you so much.

[micho]

I wish to salute and thank Vinny for this useful information but will be extremely grateful if it is possible to give us the access to the full judgement.

More grease to your elbows.

[micho]

I wish to salute and thank Vinny for this useful information but will be extremely grateful if it is possible to give us the access to the full judgement.

More grease to your elbows.

[vinny]

2) Re: ancestry - I have no savings but do have a guaranteed monthly pension income of £620 which I can live on frugally. Will this offset the lack of savings?

3) Re: ancestry. It is a work visa. I have had and will again have an eBay shop which can generate at least £200 per month. Will this amount suffice, added to my pension income? Will it be considered 'work'? Caring for my husband is a full time job so work outside the home is not possible.

4) There is not an upper age limit, so they say, but is that true? I will be 70 soon. Chipper and healthy but 70 all the same.

Re: ancestry. I think:

Before entry: you need to employable and able to seek employment.
After entry: be employed by an employer for a substantial period.

[Obie]

Is it the case, that one has to be working to qualify under the Ancestry Visa.

I am of the view that if someone can demonstrate that they are able to support themselves without recourse to public funds they will be fine.

I understand it is put under the work visa category, but it does not necessarily mean that a person has to be economically active to qualify.

If the have sufficient resources or means of acquiring it, then they will be fine.

[vinny]

Obie may be right.

Before entry:

(iv) is able to work and intends to take or seek employment in the United Kingdom; and

After entry:

(i) meets the requirements of paragraph 186 (i)-(v); and

It does not actually specify that you have to be in employment.

Although the UKVI will probably process the application using their instructions, you may eventually succeed, provided 186(iv) is also satisfied. Assuming that the rules won't be changed to follow their instructions.

[Obie]

Yeah i can see Vinny. At the Entry Clearance stage, the person needs to show that they are able to work and intend to seek work.

At the ILR stage, they only need to demonstrate the same, they don't need to demonstrate that they were working through out the period prior to PR.


The wording of the provision does not help much, seem to live little room for manoeuvrings, but i am sure there may be a way around it. As beneficiary both at EC and ILR stage don't need to show they are actually in work.

The guidance, also accept that a person can be self employed. It said an applicant cannot be refused because they are disabled.
It is unclear what the position will be, if as a result of the person's disability, they are unable to work, but have sufficient resources.

[vinny]

If having an eBay store is acceptable as self-employment, then it should also be fine with the instructions too.