Set M application - old rules

[expotokyo]

My partner successfully appealed against a rejection of her application for FLR as an unmarried partner.
The judge ruled in our favour in terms of the Immigration Rules. And... for arguments sake Article 8 (although she made it clear that we did not need Article 8 ).
The Home Office did not contest the decision.
The FLR application was before July 2012 and the appeal was won in July 2013.

Therefore, we meet the requirements to be considered under Transitional Provisions - i.e. 2 year route to ILR.

However, a Subject Access Request shows that my partner's immigration record shows that we won on Article 8 and doesn't appear to mention the Rules - although the Judge's written statement clearly does.
We have had no response from the Home Office following requests to correct the record.

Is it possible that there may be a problem during our application via the Transitional Provisions?

[Amber]

How long was your partner's leave granted for? 2 years or 2.5 years?

[expotokyo]

2.5 years.
Clearly they made a mistake as it should have been 2 years.
But they did not contest the judge's decision in any way, so according to the law, my partner should be eligble to apply for ILR under the old rules

[expotokyo]

So to summarise, the SAR shows that the visa was granted on Article 8 Family Life grounds.
However the Judges determination (unchallenged) shows it was granted within the Rules.
Should we just take the Judge's determination? Or should we postpone the appointment and write to our MP?
The determination is so clearly written, that we suspect that the 'mistake' was deliberate somehow...

[vinny]

It may be more complicated.

[expotokyo]

Certainly if had to rely on Article 8 Family Life, it would be complicated. Which is why I am concerned about the Home Office mistake.
But we shouldn't have to as the appeal was under the Rules. the Home Office Caseworker made a clerical error.
Can they retrospectively ignore the Judge's determination?

[vinny]

But we shouldn't have to as the appeal was under the Rules.

Yes. But under which rules?

Where an application for leave to remain is made before 9 July 2012 but decided after that date, which Immigration Rules should apply to it?

[expotokyo]

My understanding is that the case law refers to Article 8 applications related to Private or Family Life only.

[Amber]

If you wish to refute the leave which was granted, use Immigration Directorate Instruction Family Migration: Chapter 8 Transitional Provisions as your reference.

[expotokyo]

Yes, thanks, this is the guide I am referring to.
Just looking online, I can see many cases of UKBA 'errors'. In my case it is clear cut - we won the appeal according to the Rules, yet they have marked that it was won on Article 8.
So according to the result of the Tribunal, we are eligible to apply for 2 year ILR according to the Old Rules.

Is it legally possible for the Home Office to decide an application based on their own incorrect record - rather than the decision of an immigration judge (which they never contested) ?

[expotokyo]

Does anyone have experience of applying under Old Rules for ILR - having incorrectly been give 2.5 years FLR (rather than2)?

My partner won her appeal according to the Rules. Her original application was before 9 Jul 2012, so she meets the criteria to be considered under the Old Rules for ILR.

However, a Subject Access Request shows they incorrectly recorded the appeal was won under Article 8!!
Her visa was indeed issued for 2.5 years, but these are both Home Office errors.
We only did the SAR recently and have not received a response about our complaint.

I have telephoned and received a general response that it would be fine, but I am concerned.

We have a PEO appointment at Croydon this Friday!
Is it better to try to correct her record beforehand? Or to just apply with the correct documents/Copies of Rules and Judge's determination?

[geriatrix]

Do you have the (appeal) judgement in writing? Apply for settlement with a covering letter explaining the error(s) made by UKVI when granting leave initially and include a copy of the appeal judgement.

[expotokyo]

Yes we have it in writing.
It is crystal clear that we won according to the rules. During the appeal, I had Article 8 as a parallel argument. The judge wrote twice that we did not need Article 8, as we met the Rules. However, she mentioned 'for the sake of completeness' we would have met Article 8 Family life too.
We won on the spot and were awarded costs.
It is curious how such a ''mistake' could be made by the Case Worker.

I made a general telephone enquiry last week to the HO and they said even with 2.5 years, on the visa it would be fine.
I wonder whether it is worth calling again and recording the call?

[Amber]

It's absolutely pointless going by what those on the 'helpline' say, they're not case workers. Write to the UK settlements ops department for an official response.

[Casa]

It's absolutely pointless going by what those on the 'helpline' say, they're not case workers. Write to the UK settlements ops department for an official response.

+1 Amber. I've posted this link previously on the forum, but it explains the situation clearly regarding unreliable advice given by the HO 'help line'.
https://www.freemovement.org.uk/immigra ... pectation/

[expotokyo]

Yes, the people on the helpline have minimal knowledge.
I've spoken to a lawyer and been told that the HO must correct their record if it is in contradiction to the result of a Tribunal.(even if a long time passed since the decision)

If they make a new decision based on their incorrect information, it could easily be challenged.

I guess it will come down to the individual Caseworker we deal with.

What I don't understand are the Rights of Appeal changes.
It seems anyone applying under the Rules cannot go to tribunal any more. Only Human Rights applications?
But yet, those with no right of Appeal can seek Judiciary Review..?

[expotokyo]

How to supply Photocopies at PEO? Should they be supplied separately as a 'photocopy bundle'?
Or together with each original?

[CR001]

You will be asked for documents and the copies. When I attended in person, I had each copy with the relevant original.

[expotokyo]

OK. so there shouldnt be a separate pack of photopies?
Just 1 pack with original/ copy, original/copy in sequence?

[CR001]

There is no set rule on it. Just make sure you know where everything is for whatever documents they ask for.

[expotokyo]

OK. So the process basically involves going in submitting documents and then waiting?
There are no actually conversation with the Case Worker unless they wish to ask something specific?

[expotokyo]

We are applying for ILR on the partner route (old rules)
The applicant earns above £20k and above £30k savings are jointly held. They will provide bank statements and pay slips and p60.
Technically would this be enough to meet the Old Rules?

For the British partner, is it sufficient to provide 6 months payslips, P60 and latest month bank statement? OR does the partner need to also provide 6 months bank statement?

[CR001]

There is no financial requirement under the old rules. You need to prove 'adequate maintenance'.

6 months payslips and banks statements for both or just you is sufficient.

[expotokyo]

if the applicant already exceeds the financial requirements, is it necessary for the partner to produce 6 months bank statements? Or would 6 months payslips and most recent bank statement suffice?

[CR001]

There is no financial requirement under the old rules. You need to prove 'adequate maintenance'.

6 months payslips and banks statements for both or just you is sufficient.