ILR application refused, what are my options?

[BCurious]

My wife recently applied (and was granted) ILR having been on a Tier 2 visa for 5 years. I have been with her in the UK for the entire time, but have been on a series of different visas. Specifically I was on:
Tier 4 (Prospective student) - 6 months
Tier 4 (Student) - 3 Years
Tier 4 (Post study work) - 6 months
Tier 2 (dependent of my wife) - 1 year

We decided that I was also eligible to apply for ILR at the same time as she did as her dependent based on the information on the UK government page https://www.gov.uk/settle-in-the-uk/y/y ... neral-visa. Specifically, under the section detailing if dependents were able to apply, the page states that dependents need to have:
- permission to be in the UK as your partner
- been living in the UK with you for at least 2 years if they applied before 9 July 2012 or 5 years if they applied on or after 9 July 2012 could

As I am currently here on a dependency visa we thought the first point was satisfied and as I have been living with her the entire time, we thought the second was satisfied.

However, when we went to the application centre, we were told that my application was refused as I need to not only have been in the UK with my wife for the past 5 years, but have been on a dependency visa this entire time as well.

We were very upset by this, as I had only included myself on the application based on the advice on the government page linked above. No where on this page did it indicate that there are any additional requirements that needed to be met, nor was it mentioned on the application form. Had there been any indication that the advice was incomplete or that I should check further if I was eligible we never would have incurred the significant expense of submitting my application.

I am still in the country on the same dependency visa, which still has another years validity. I was told that we have the right to an "administrative review", but that as section 319E(d) of the relevant legislation states the extra requirement that I need to have been my wife's dependent for the entire 5 year period, this was unlikely to be successful.

So I have three questions.

1. We feel like we have been (either deliberately or accidentally) mislead into wasting a large sum of money that we will really feel the loss of. Is there any chance of recovering any of the application fee? If so how?

2. The advice that the administrative review was unlikely to change anything seems accurate to me. Is there any point in going to the effort?

3. Given that my application has been denied, what is the quickest route and cheapest for me to eligibility for ILR? I am assuming this would be to remain as my wife's dependent for a further 4 years and then re-apply. But this is only marginally faster than the 10 year route given I have already been here 5 and a bit years.. I have been in full time employment since Nov 2014 if this is relevant in any way.

[CR001]

1. No, you have made the error of misinterpreting what you have read. If an application is refused, you lose the fee. There is nothing you can do about it. I have bold and highlighted the bits you have probably misunderstood.

Eligibility for partners
Your partner may qualify if all of the following apply:
they have permission to be in the UK as your partner
they’ve been living in the UK with you for at least 2 years if they applied before 9 July 2012 or 5 years if they applied on or after 9 July 2012
your relationship is genuine
you intend to continue living together
you have enough income to support yourselves and your dependants

The second point in this quote, means you MUST have had PBS Dependent status for the FULL 2 or 5 years. Not a combination of different visa such as in your case. You held a Tier 4 as a main visa applicant and a dependent visa for only 1 years, so you don't meet the requirements to apply with your spouse.

2. Administrative review if HO has made an error etc. In your case, they have not. You have misinterpreted what you have read, you need 5 years residence holding a dependent visa.

3. Apply to extend your current visa until you meet the 5 year residence requirement. There is no quicker route.

The HO website is a snap shot guidance of the immigration rules. The immigration rules trump the guidance.

See Immigration Rules Part 8 - See 319E (click)

[poper]

Hi mate

sorry on your refusal. I think the gov.uk website does say the below.
Looking at your immigration history, it appears like you were not on a dependent visa for the expected period
I will let seniors to answer your other questions

Eligibility for partners

Your partner may qualify if all of the following apply:

they have permission to be in the UK as your partner
they’ve been living in the UK with you for at least 2 years if they applied before 9 July 2012 or 5 years if they applied on or after 9 July 2012
your relationship is genuine
you intend to continue living together
you have enough income to support yourselves and your dependants
you’re not using public funds

[BCurious]

Thank you for the reply. Even if it wasn't the answer I wanted, it was what I suspected the answer would be.

I agree that we made an error in deciding that I was eligible to apply. However, I disagree that it was as a result of misinterpretation of the statement:
"they’ve been living in the UK with you for at least 2 years if they applied before 9 July 2012 or 5 years if they applied on or after 9 July 2012"
As it is written, that statement is unambiguous and can only be interpreted to mean what it says (that a dependent must be living with their partner in the UK for 2 or 5 years depending on when they applied to be their partner's dependent).

However, we clearly missed the phrase "may qualify".

[noajthan]

Unfortunately the website is, in any case, not the law. Guidance is just that.

[poper]

Unfortunately the website is, in any case, not the law. Guidance is just that.

If so, how do we know the law?
I agree with the OP that the lines mentioned on gov.uk can be interpreted both ways

[BCurious]

Unfortunately the website is, in any case, not the law. Guidance is just that.

If so, how do we know the law?
I agree with the OP that the lines mentioned on gov.uk can be interpreted both ways

This is my problem too. If it was clearly stated on the gov.uk website that "This advice is merely advisory and not legally binding, see [REFERENCE] for the relevant legislation", we would have acted differently.

[CR001]

Thank you for the reply. Even if it wasn't the answer I wanted, it was what I suspected the answer would be.

I agree that we made an error in deciding that I was eligible to apply. However, I disagree that it was as a result of misinterpretation of the statement:
"they’ve been living in the UK with you for at least 2 years if they applied before 9 July 2012 or 5 years if they applied on or after 9 July 2012"
As it is written, that statement is unambiguous and can only be interpreted to mean what it says (that a dependent must be living with their partner in the UK for 2 or 5 years depending on when they applied to be their partner's dependent).

However, we clearly missed the phrase "may qualify".

Yes, but the statement DOES follow on immediately from the 'have permission/leave to remain as partner'. It is clear that the 'applied before .... or after July 2012' refers specifically to a dependent visa status and qualifying with 2/5 years on dep visa. You applied after July 2012, so you clearly need 5 years as partner status to qualify for ILR.

It has also been well publicised since July 2012 that dependent visas (PBS and spouse settlement) applied for after this date require 5 years residence.

I have included the link to the immigration rules (319E) in my previous post.

[noajthan]

Unfortunately the website is, in any case, not the law. Guidance is just that.

If so, how do we know the law?
I agree with the OP that the lines mentioned on gov.uk can be interpreted both ways

This is my problem too. If it was clearly stated on the gov.uk website that "This advice is merely advisory and not legally binding, see [REFERENCE] for the relevant legislation", we would have acted differently.

The map is not the territory.
Do what I do, look up relevant legislation.

[CR001]

The HO website is a snap shot guidance of the immigration rules. The immigration rules trump the guidance.

See Immigration Rules Part 8 - See 319E (click)

[vinny]

See also analysis.

[BCurious]

Thank you all for taking the time to reply. The advice to look directly at the legislation and that the gov.uk information is guidance only is good advice. I wish I had this advice before applying and will certainly follow it in future.

However, I still feel aggrieved that it seems to fall to the individual applying to know that the gov.uk website is not the correct information to rely on and to find the applicable legislation is and where to find it. In essence, I contend that:
a) it is nowhere made clear that the advice on gov.uk is incomplete, advisory or not legally binding and should not be used as the basis for deciding whether to apply.
b) that the wording of the applicable section is at best open to being interpreted multiple ways, with my interpretation being a reasonable one. My opinion is that the wording is actually not open to interpretation and that it is clearly misleading, but even if you dispute this, I think it is hard to argue that the interpretation I took was inconsistent with what is written on the gov.uk website.

Given this, are there any mechanisms for disputing the decision or claiming a refund of my application fee on the grounds that I acted in good faith but was mislead by what may not be legally binding, but is still official advice from the UK government.

[Casa]

Regrettably no refund, and an Administration Review (AR) would be pointless as there was no error in the Case Worker's decision.

[vinny]

Looking at the Immigration rules (and related legislation and operational guidance) is essential.