ILR refused - very harsh, advice appreciated.

[DavidSWP74]

Hi,

My wife just got a letter saying that her application for ILR has been refused, the reason:

"In support of your application you have provided City and Guilds certificates showing that you have completed Level 2 certificate in ESOL at Blackburn College awarded on 20 July 2015 and an IELTS certificate for a test taken on 22 January 2011 in Moscow... This is not acceptable evidence that you have sufficient knowledge of the English Language... for settlement application made on or after 19 November 2015."

My wife did the ESOL Level 2 course because at the time it was on the list of acceptable certificates and she knows people in her class who were granted ILR in 2015 using it. Before applying for ILR she noticed that the certificate was no-longer in the list of acceptable qualifications and spoke to an immigration solicitor who said that it would be ok if a supporting letter from the college was sent with the ILR application. We paid for this advice, but unfortunately don't have it in writing. My wife is now studying GCSE English.

Now, my wife could take and pass the approved exam tomorrow (we have checked and there are test centers with vacancies), but the home office have her passport and UK residence card which are required to apply for the test. The home office, in their letter, have also not indicated that they they will accept any further proof and instead are insisting that her application has been downgraded to a 2 year extension of leave to remain and are demanding payment of a NHS suppliment of £400 within 10 days.

Does anyone have any advice on what to do in these circumstances? Can we appeal the decsion to buy some time to get the acceptable certificate?

It seems especially harsh because my Wife's IELTS certificate from 2011 (Cambridge) was already B1 level and ESOL Level 2 is a higher level qualification (C1 equivalent). Previously they used some discretion when my wife applied for her last extension when they also found her previously taken ESOL Entry Level 3 certificate to be insufficient, but then granted the extension based on her out-of-date IELTS from 2011.

Any advice would be very much appreciated. Other relevant information:

My wife entered the UK in June 2011 on a Marriage visa
We were married in the UK in 2012
We lived in the UK for 6 months but then moved to Sweden for 7 months which is the reason she couldn't apply for ILR earlier and the need for extension of 'leave to remain' visas.
My wife has a 5 year Swedish Residence Card, if that's any help

[noajthan]

Most unfortunate.

See forum FAQS on this vital matter, particularly Q6 & subsequent posts:
http://www.immigrationboards.com/indefi ... l#p1284624

Other members in similar predicament have reported taking an emergency SELT and so getting through by the skin of their teeth;
your challenge is in submitting any alternate form of id to take such a test.

[DavidSWP74]

Thanks for that information noajthan, do you have any links to the cases where people took the 'emergency SELT'?

Also I am confused because they didn't include information on a right to appeal and an appeals form with the rejection letter. I read on a webpage 'About Immigration':

"Unsuccessful applicants will have no right of appeal if:

Despite the UK Border Agency’s decision they still have the right to remain in the UK; or,
The application for indefinite leave to remain was made after the applicant’s permission to be in the UK had already expired."

But in the letter from HO it says "A failure to pay the immigration health surcharge will mean your application for limited leave to remain will be treated as invalid. You will not be able to appeal this decision and you may be liable for removal from the UK".

Assuming the information from 'About Immigration' is correct then my wife should have a right to appeal the ILR refusal because her current residence card has now expired (although was valid when the ILR application was made). But HO are saying that she must pay the NHS fee and then get limited leave to remain which would mean that she can't appeal the ILR refusal because she will then have the right to remain anyway. Is it a trick?

[noajthan]

The only examples I can find just now actually relate to naturalisation applications being refused, typically due to an invalid ESOL; the applicant then rushed out to take a SELT. In some cases HO accepted it and approved the application; ofcourse there's no guarantee a similar practice would be applied for ILR.

The only ILR cases I can see are when people didn't have time to get a foreign degree accredited immediately before a PEO appointment, or a visa expiry;
so they went for a SELT instead.

Here's one:
http://www.immigrationboards.com/indefi ... T#p1333011

So, unfortunately, these scenarios are not directly comparable to your case.

I'm not familiar with ILR-related appeal/reconsideration options as the landscape has changed since my wife was on ILR several years ago.

[DavidSWP74]

Ok, my wife has an EU photo ID card (Swedish Residence card) and it seems this is an accepted ID for SELT test centers. So my proposed course of action is.

1. Wife gets SELT certificate
2. I send it to the HO with a Pre Claim Protocol for Judicial Review (since they have have given no right to appeal and no indication that they will accept further documents to support the application)

Does anyone have any thoughts on this, or advise on what to put in the pre-claim protocol? Can anyone think of any laws I can mention that will get them sufficiently scared to avoid going to a judicial review?

[DavidSWP74]

Anyone else have advice on this?

Currently it looks like we have to pay them £400 for the NHS supplement and accept the downgrading of the ILR applicaiton to FLR. Do you think they will refund the difference in cost between the ILR price (about £1500) and the FLR price (about £600), or will they just take all the money?

Is there any way to reach (prferably telephone or email) andreason with these people after a refusal letter has arrived? We just need my wife's ID document back and then could provide the SELT test certificate to them within several days. If we can't do that we are looking at losing £1900 and then have to pay another £1500 for applying for ILR again. Completely ridiculous.

[geriatrix]

Your wife failed to fulfill the requirements specified in 2.2(b) of Appendix KoLL and therefore E-ILRP.1.6., and that is the reason why the ILR application has not be approved.

The applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with the requirements of Appendix KoLL of these Rules.

Appreciate the fact that UKVI has not refused the application outright (would have lost ILR fee anyway) but is ready to extend her stay, as is usually the practice when applicant fails the KoLL requirement, provided you pay the IHS (had she been refused, you would have had to pay for FLR(M) and IHS fee too)!

[Casa]

Personally, I would pay the NHS surcharge within the specified time and accept the extension of leave they have granted. An AR would only succeed if the Case Worker had made an administrative error, which doesn't appear to be the case. The difference in the visa fees won't be refunded.

[DavidSWP74]

Dirty people. So they get £2000 for nothing and then we have to immediately pay £1500 to get ILR just because they won't give us an extra few days to get the required certificate. Ok we could wait 2 years but by then they will probably have added even more traps. Really makes me want to leave this lovely country.

[noajthan]

Before applying for ILR she noticed that the certificate was no-longer in the list of acceptable qualifications and spoke to an immigration solicitor who said that it would be ok if a supporting letter from the college was sent with the ILR application. We paid for this advice, but unfortunately don't have it in writing

You were evidently misadvised at the get-go before applying. HO are just applying their current rules, which are in the public domain.

[RRSB2012]

David,

I believe that the root cause of the problem is the Solicitor who gave you an absolutely incorrect Advise. Being a solicitor, he should have known better.

I would agree with CASA's advise. If I were you, I would pay the IHS Surcharge and then try my luck after getting SELT (from approved College and Test Centre).

Best of luck Mate.
Cheers
R

[DavidSWP74]

Thanks for the advice. But I can't contain my loathing for the home-office. You pay £1500 for something that obviously doesn't cost that to administer (or if it does someone is skimming off the profits). £2000 cost to my family. £2000 from my child's inheritance, £2000 pounds that could be given to good causes. Bunch of assholes.

"Oh you didn't comply with this rule..." so charge me an admin fee and let us submit the recently required certificate. Bunch of disgusting lowlifes.

[Wanderer]

Thanks for the advice. But I can't contain my loathing for the home-office. You pay £1500 for something that obviously doesn't cost that to administer (or if it does someone is skimming off the profits). £2000 cost to my family. £2000 from my child's inheritance, £2000 pounds that could be given to good causes. Bunch of facing assholes.

Immigration is now cost-neutral to the UK tax payer, hence the increased costs. You should be pointing your finger at the abusers, tax-fiddlers and health tourists, etc. It wasn't that long ago the immigration process was completely free. I remember that.

Think on.

[noajthan]

Venting at HO won't solve the problem.
You will have to face it again to move forwarda.

Suggest avoid incompetent legal advice; remain abreast of latest rules and requirements.
Always plan for next visa/application as well as the current one.
Patience is a virtue when dealing with the Kafkaesque HO.
This forum can help with all of that.

[DavidSWP74]

Well the end of this story is, in the end I wrote to the case worker special delivery and told them exactly how unfair I thought they were being. Result - Wife's passport sent back, ILR refusal put on hold, 14 days given to provide a SELT test pass code. Wife took the test a couple of days later and achieved a double A distinction. Sent the provisional pass certificate to the case worker and a few days later ILR residence card arrived and all other documents returned. I didn't call them assholes but wrote a very strong letter. So they redeemed themselves quite a lot despite their opaque system and being unable to even phone/email the case worker.

So in this situation my advice would be to send a letter to the case worker.

[vinny]

Well done!