Wife's ILR Extension Refused - ADVICE PLEASE :(

[ElvishLoremaster2016]

Thank you all for your help so far - it has been a very sleepless night this end. Both very exhausted.

I saw the issue faced previously with the HO operators, and I do not know how it will proceed, but they may be a part which will hinge on the fact that the question was one of administration more over legal advice. I am not sure.

I have spoken again to the HO, and the agent said that it is perfectly possible to make another application. We have an appointment with a solicitor tomorrow morning who also confirms this to be the case. The wife obviously cannot be removed during this process, and should it be rejected on the grounds of overstaying, there are means by which we can operate. I assume this will be further discussed tomorrow.

The solicitor has also mentioned that EX1 may be upheld - regardless of there being no children.

[Obie]

Yes Exception 1(b) can be relied upon if there will be an insurmountable obstacle to you joining her in her home country.

That test is extremely hard to meet, as it involves you showing health, safety or other issues which will render you unable to relocate to her home country.


In my opinion and my experience, the EX 1(b) test is very tough to overcome. The test in 1(a) is much more straightforward and easy to be met.

[ElvishLoremaster2016]

Her home country is Moldova - more specifically, the North, which is somewhat hostile.

There is absolutely no work there for either of us. I do not speak the language. We both have self employed work here in the UK - mine of which has been in good standing for over 15 years and requires face-to-face meeting.

I have chronic ear problems which prevents me from flying - which makes family visits extremely difficult.

Her parents are on the breadline and cannot afford to support us - period. I even outsource my father in law to do some of my computer work just so they can buy food.

The list could go on...

[ElvishLoremaster2016]

This is absolutely crazy.

This has all come about as a result of being told to fill in the wrong form.

We cover ALL other requirements for staying in the UK. We can evidence living together, holidays, financial requirements. The wife has even taken exams to aid her work. All that is held against us is simply that we filed the wrong form.

Is it seriously a case that this will not stand and we will be expected to move back to her home country?

Our lives will be quite literally, ruined. I just cannot see that!!

[ElvishLoremaster2016]

I exaggerate with the "ruined" part there. I understand that moving back will be for the duration of applying (using the correct route), and waiting the 6-8 weeks. Again, we meet all requirements, so this will not be a problem.

From what I understand, it is a question of whether we can get success from within the UK. If we were to move back to Moldova and apply, the process should be straight-forward, but those 6-8 weeks will be difficult.

Thanks again to all for bearing with us both on this.

Really should bring myself to eat some breakfast...

[ElvishLoremaster2016]

Just in the interest of helping anyone looking at this in the future...

Form FLR(M) SHOULD NOT be used in this case! As an overstayer, form FLR(FP) must be used.

Could have been a very costly error to the tune of £811...!!

[Wanderer]

Just in the interest of helping anyone looking at this in the future...

Form FLR(M) SHOULD NOT be used in this case! As an overstayer, form FLR(FP) must be used.

Could have been a very costly error to the tune of £811...!!

Pretty sure the fee is the same FLR(M) or FLR(FP), just that you can optionally apply for a fee waiver under FLR(FP) if you can prove destitution (which doesn't seem to be the case in your circumstances as detailed in the thread) AND doing this will put you on a 10 year route to ILR.

Better check and/or wait for others here, I can't keep up will all the changes, it all used to be free....

[ElvishLoremaster2016]

Wife and I went to see an immigration specialist - I am quoting their instructions.

Yes - obviously everyones individual circumstances will be different, I just didn't want anyone to read this and have further problems!! But in our case, this is the form to be used.

Can't believe it used to be free!!

[CR001]

FLR(FP) can also take a long time to be processed and is not an easy route to get. She cannot apply in person for this.

Do you have any children??

[ElvishLoremaster2016]

I don't think ANY route is going to be fundamentally easy!!

However, I value your input greatly. What would you suggest in terms of a route to pursue?

There are no children to consider in this, or previous relationships.

[CR001]

My opinion would be that it would complicate things less if she left the UK and applied from her home country again for a spouse visa, starting from scratch again.

If you apply for FLR(FP) and it is refused, she will then be an overstayer for an even longer period. HO might take the view that as there are no children (and this doesn't guarantee a visa will be granted), that you and wife could easily relocated to her home country, as has already been mentioned.

All these overstay periods will prevent her from applying for citizenship for at least 10 years once she has sorted out a new visa, due to failing the good character requirement for having a substantial period of no legal right to reside.

[Wanderer]

I don't think ANY route is going to be fundamentally easy!!

However, I value your input greatly. What would you suggest in terms of a route to pursue?

There are no children to consider in this, or previous relationships.

If it were me, I'd bite the bullet and do what the UKVI will sit best with, apply from home, treat it as an extended break back home for the missus, then a line is drawn under it.

The alternative is legal battle taking time and money and frankly IMHO, ultimately unwinnable since even a victory will colour the view of the CW's at UKVI...

But that's just me, I like things done and dusted, nothing to come back and haunt me...

[ElvishLoremaster2016]

When you say "from scratch", are we talking starting from day one, or from 2 1/2 year extension?

I was not aware that one can apply for extension whilst out of the country, so that might answer the question. But just to confirm, which route would she need to follow if we do "bite the bullet"?

We do however have circumstances which I'd rather not mention here, which the solicitor feels puts us in a strong position, coupled with the fact that we meet all other requirements and have been, characteristically, the ideal "British" couple. It is a tough consideration, but although it may be the case, the form is there for people in our situation who have been subject to a silly mistake. If success was not at all possible, there would be no form.

[CR001]

When you say "from scratch", are we talking starting from day one, or from 2 1/2 year extension?

I was not aware that one can apply for extension whilst out of the country, so that might answer the question. But just to confirm, which route would she need to follow if we do "bite the bullet"?

From scratch meaning start a new 5 year period again. Her previous time spent on the spouse visa will be lost. You cannot apply for an extension outside the UK, it is a new entry clearance visa.

We do however have circumstances which I'd rather not mention here, which the solicitor feels puts us in a strong position, coupled with the fact that we meet all other requirements and have been, characteristically, the ideal "British" couple. It is a tough consideration, but although it may be the case, the form is there for people in our situation who have been subject to a silly mistake. If success was not at all possible, there would be no form.

Agree, but there are many many members who post refusals of their FLR(FP) applications, even those with children born in the UK or those who have many more years in the UK than just 2.5 years residence. Your circumstances would have to be 'exceptional'.

[ElvishLoremaster2016]

I can see your point completely. However, I have spent a lot of time playing devil's advocate about our circumstances. Forums by their nature will attract people (like myself) who have had problems prior to writing, thus the ratio of failure to success is likely distorted. Again, just a moment of positivity. I know I am seeking the answer I want rather than the answer I may need!!

Furthermore, should we opt for the stay route, and it hypothetically goes to appeal (or worse), and it is won, then the CW will also be "coloured" adversely. Trying to work our way around the opinion is futile. I really feel that there should at least be some guidelines, examples of some flavour. If not for the financial outlay, the emotional and mental health impact it draws.

My wife and I are in this position through human error. This happens. I just don't want our lives to suffer substantially as a result. Granted it is a cliché, but it is simply not right.

Again, I feel it a necessary point to thank you. Advice, opinions, support - it all helps

[CR001]

If refused, very likely the appeal will only be an 'out of country' appeal. HO have massively reduced the applications that qualify for in country appeal. HO don't work on emotions unfortunately, they simply follow the rules.

This link below is a person who was refused FLR(FP) after having a 2.5 year FLR(FP) already and applying for an extension. The user is still waiting for the outcome I believe.

immigration-for-family-members/flr-fp-r ... 16557.html

And the one below a member who has more than 10 years residence and was refused.

general-uk-immigration-forum/flr-fp-bee ... 88452.html

If you use the immigration advisor and he feels confident and can write a cogent detailed letter etc, give it a go, but make sure you are fully prepared for any outcome and eventuality.

[Wanderer]

Some points to consider:

1. Being a 'British Couple' isn't a very PC thing to say nowadays! Might rattle a few cages here.....

2. Immigration and the rules have been made tougher and more expensive because of others' abuse so the UKVI now has been more or less forced to 'tick box' everything, no tick, no leave, no exceptions.

3. It's really everyone's duty to be sure of the the law and not knowing is no excuse. You filled the wrong form in there's no escaping that. Exceptions would set precedents, so if one couple 'got away with it' the way things are now with immigration and rampant abuse those so inclined would be on it like a car bonnet, pleading 'wrong form', 'Didn't know', 'Unfair' etc. Of course genuine mistakes are penalised, but UK Visa plc is big business now, demand outstrips supply......

4. Did you not think it was odd that the form you did fill in (EEA) both didn't apply and was free?

[vinny]

3. It's really everyone's duty to be sure of the the law and not knowing is no excuse.

Perhaps debatable.

[ElvishLoremaster2016]

Again - thank you all very much.

You all innately think along the necessary lines of the HO, and whilst the advice isn't always the easiest to swallow, it is what needs to be considered.

I would absolutely like to withdraw my comment about "British" couple. Wanderer, you are correct. This is not how I should have phrased it. But I hope the meaning was inferred by context.

Again, we do have mitigating circumstances which I (and solicitor) feel hold a good argument in our situation. We have foregone the means of using "the wrong form" approach as our saviour (although it will be addressed - tactfully). Whilst I would like to better people in our situation, I cannot divulge further issues of our private lives over the Internet. I hope you can all respect my wishes.

Again, with all sincerity, CR001, Obie, Casa... you guys rock.

[CR001]

Good luck and hope it all works out for you. Please update us on the outcome of the FLR(FP) application.

[ElvishLoremaster2016]

JUSTICE HAS BEEN SERVED....

Months later as it obviously the case, and one of the worst experiences of our lives on 2nd August this year, we have today heard of the success of our hearing, with it being allowed under Section 8 of the Human Rights.

The HO rep was an absolute COW, deliberately spoke quickly to my wife so she couldn't understand, raised her voice to me, wouldn't let me finish my sentences. Never again. NEVER again.

Thank you all for your help last year, and now we have a little bit of life to start living again...