27 MONTH SPOUSE VISA ISSUED AFTER 2012 - HELP!

[cssaini]

Hi everyone, apologies if this has been asked before. I've searched and searched but have yet to find a definitive answer!

I am British Citizen and got married to wife in May 2013 from India. I have applied for my wife's SETTLEMENT - visa through VAF4A form. She was issued an Entry Clearance visa in June 2013 as the spouse of a British citizen with an expiration date of 27 months later along with the attached letter saying that she can apply for settlement after years. It's only now that I've been looking in to FLR(M) stuff in preparation for the next step that I've realised that *I think* it should have been issued for 33 months as https://www.gov.uk/join-family-in-uk/extend-your-visa says...

I know post July 2012 now spouse of British Citizen also have to go through 5 year settlement route involving one extension through FLR(M) to qualify for ILR requirement. She was issued Visa on 6th June 2013 and traveled to Uk on 29th July 2013. My concern is even after FLR we will be short of required months for ILR if they only issued us 30 months extension. My other concern is are we applying in right category? or was there any mistake on Delhi Entry clearance office part. I have also tried phoning them up but didn't get any definite answer.

We have already booked her premium appointment for next week Tuesday 25th August and already paid the NHS health surcharge and the required visa fee. I am wondering if anybody has ever encountered same kind of issue or are we doing right thing applying for extension instead of applying for ILR? Please advise!!

[cssaini]

Sorry typing mistake ..what I meant was that She was issued an Entry Clearance visa in June 2013 as the spouse of a British citizen expiring 27 months later on September 7th 2015 along with the attached letter saying that she can apply for settlement after 2 years.

Any urgent advice from senior members and moderators will be appreciated!

[vinny]

I suppose that she may have a legitimate expectation that they should honor their letter, that she may be eligible for SET(M). However, if their letter is treated like thier telphone advice, then she cannot rely on it.

Moreover, if they give her a 2.5 years further leave on FLR(M), then is it sufficient to cover the five years residence in the UK, required for SET(M) under Appendix FM?

[cssaini]

Hi Vinny

Many thanks for your response. Indeed this is one of my concern as we have filled up the application and booked an appoint to apply for FLR(M) based on the information I gather as per the post July 2012 spouse settlement route. What if they only gave us 30 months visa. I have phoned up the UK visas and Immigration but couldn’t get any definite advise. In fact I told them that I have already booked the premium appointment also and they asked me to put this question to case work instead.

Very confuse about the whole situation especially after paying the whole fee and the £500 towards health surcharge. Only thing I think of at this stage is, if she has to follow the 5 year route as per the July 2012 rules then they definitely made the mistake and we have been robed of 3 months visa because of which we have to do yet another extension after the first extension if given 30 months visa hence unnecessary financial burden because of the cost involved for FLR(M) application.

If not wonder if she is eligible for the ILR or will they refund or compensate the fee towards the ILR cost or do we need to re-apply for the FLR(M) to have another extension to meet the 5year ILR requirement.

Anyone has any advise or thoughts on this please..

[cssaini]

Dear moderators and senior members anyone has any thought or advice on this case. Can we request for 33 months visa to case worker during our premium appointment or any chance or possibility for ILR here based on the tenure of the visa they have issued us and attached the letter. Letter content says as follows:

NOTICE TO THE APPLICANTS JOINING FAMILY IN THE UK

The visa in your passport enables you to remain In the UK for 33 months only Near the end of this time. If you are still married or in the same relationship, and intend to continue living together, you can apply to stay permanently tn the UK. If you waited more than three months after your visa was issued to travel to the UK, you may need to obtain an extension to your visa to make up your time in the UK to the two years. The Border & Immigration Agency(Address below)will deal with your application to stay permanently in the UK and give you information on what you will need to do.
BIA will change non refundable fee for your application to remain indefinitely In the UK. You
must apply using a form which you can get from Applicants Forms Unit at the BIA. Subject to
their approval , BIA Will then place a stamp on your passport, which will enable you to
remain In the UK either for a further limited period, or indefinitely
For more Information please refer to guidance leaflet 4 on our website

Strange thing is though it says 33 months we were only granted 27 months. Shame I or my wife didn't realized it when collecting the passport in Delhi from visa service office.

Any advice on this from members will be appreciated

[vinny]

Their letter Is inconsistent with her Entry clearance and Immigration rules, both Part 8 and Appendix FM.

If they correct their mistake and change the entry clearance endorsement from 27 months to 33 months, then she would need to apply for her second FLR(M) again before it expires.

Under appendix FM, she may apply for SET(M) no sooner than Sunday, 1 July 2018 and preferably before expiry (no later than 28 days after expiry).

If they grant her 30 months FLR(M) from 25 August 2015, then it would only be valid until Sunday, 25 February 2018.

If she has satisfied KOLL, then try to persuade them to grant her ILR as indicated on the letter or correct her entry clearance from 27 months to 33 months and refund her current application fees. Then, in the latter case, she may make another FLR(M) application without losing money on this application.

[cssaini]

Dear Vinny

Many thanks for the response and guiding us in right direction about method of correcting the incorrect endorsement. To be honest I didn’t even know about it. So thank you so much for pointing in right direction.

So now should we also write an application as per guidance for ECB19 and present it to case worker on the day of our premium appointment and try to persuade them to either correct it or grant her ILR as per the letter attached. Or you reckon we should send it via post? Only trouble is that her visa is running out on 7th September as may not have sufficient time to get it amended. I agree with you if they correct it she will only require one FLR(M) instead of two as we are fearing to do at this stage. Or there is any possibility they can give us 33 months visa or 36 month visa (going with the rule of 33 +30 months) to qualify for ILR.

She has been waived for English language requirement test as she got UK NARIC equivalent Bachelor’s and Master’s degrees and we got the printout from PBS calculator. Unfortunately she haven’t got the life in UK test yet as we were under impression of going with the 5 year route in mind and it never occurred till yesterday that there was mistake on her visa after paying all the fees and booking an appointment. I will definitely try to pursued the case worker in next week appointment but feeling gutted that we may lose the health surcharge fee or the appointment fee if we have to file for FLR again in few months’ time

Alternatively is this something can be corrected after we get the first FLR extension done and subsequent to that can apply to correct this incorrect endorsement leading to ILR in July 2018.

Please advise…Many thanks in advance.

[vinny]

Unfortunately, without passing the Life in the UK test, she is ineligible for ILR in any event. A problem is that correcting the entry clearance after applying for FLR(M) will not make any difference to the FLR(M)'s validity period. The maximum validity period for FLR(M) under Appendix FM is 30 months.

[Obie]

I suppose that she may have a legitimate expectation that they should honor their letter, that she may be eligible for SET(M). ?

Legitimate expectation of What?

When the OP apply, they were very much aware that they are on the 60 months path to Settlement. Therefore it is difficult to see how the legitimate expectation can derive from a mistake, or the grant of a leave of limited duration to the one the OP's wife was entitled to, which appears to be a 33 months leave.

There appear to be no power in law on the basis of which the Secretary of State can issue ILR, unless she choose to exercise her discretion under Section 3 of the 1971 act to do so.

Can OP really say they had a legitimate expectation that the Secretary of State will exercise her discretion under Section 3(1) and issue leave to her of an indefinite nature? well I am not sure of that.

[vinny]

The UKVI's letter explicitly states in writing that the applicant may apply for ILR before the expiry of leave.

If that doesn't give an applicant a legitimate expectation, then is it better to treat all correspondence from the UKVI as meaningless or deceptive?

However, I suspect you are right and the courts may come to the same view with respect to the UKVI's correspondence.

The UKVI cannot have caseworkers making new policy that are contrary to the Immigration rules. But they should correct their mistakes without the applicants having to unduly suffer from their mistakes.

[Obie]

Hmmm very interesting indeed Vinny . You may well be correct.

I have viewed Legitimate expectation along the line that, there is a specific provision in law or rules, you had always known that if you abide by it, you will get something one day, and all of a sudden , changes are brought about that dispel that legitimate expectation.

OP may or may not have expectation, but could it really be said to be legitimate ? It remains to be seen.

I believe it all depends on whether we take a broad or narrowed interpretation.

As I said, your broad interpretation may well be correct. I do not fancy the OP chances with the UKVI though.

Remains to be seen what the courts will make of it.

[vinny]

Do let us know what happens!

[cssaini]

Thanks Vinny & Obie for your encouraging comments.

This was the classic case of what’s wrong at HO immigration department. Here is our or story of what happened afterwards.

As planned we went to premium service Croydon on 25th August for morning appointment. Everything went smooth from going through security to getting the documents check till the stage of meeting the case worker. Things have changes a lot since old days back in 2005 when case workers use to sit behind the glass counter and you use to go to them directly. Now it’s more open environment but two to three stages before you could submit your documents.

When we were called at the desk where we were meant to submit the files with documents, we raised the question about us been only issued with 27 month visa against the 33 month as per post 12th July 2012 changes. We also showed them the letter which (excerpt of this letter written above in previous post) was attached with my wife’s passport when we collected the passport after her visa was stamped saying that she can apply for settlement towards completion of 2 year. We said that we were under impression that it will be 5 year routes for her but never realised that she was only issued with 27 month visa which was meant to be based on old rules. After looking at documents and the letter case worker also looked bit confused. He first referred it to another person who seemed to be his senior in the same area looking at all the case workers. After refereeing it to her he asked us to wait further so that he can refer it to his manager who seems to be sitting somewhere inside behind the walls. He went inside and after about 15 mins wait he came back along with his supervisor to us saying that clearly there was a mistake at British high commission India who issued 27 month visa based on the old rule but they don’t know why it has happened. He said that based on this letter we are eligible for the ILR. We said that’s great but we came here with the impression of FLR(m) and my wife haven’t even done the life in UK test. He said in that case she still needs to go for the extension as her visa was running out by 7th September. This came as a surprise to us but in a good way for which we were clearly not prepared.

We said that clearly there is mistake on our part also as we were under impression that we have to apply for the FLR(M). We have already paid the fee for the application plus NHS surcharges before realizing the mix up. So if it’s possible can we get at least the refund of NHS fee for which he said it can’t be done. So at this stage we will still go with the FLR(M) but they will only issue her 20 month visa and she can apply for ILR as soon as she get her Life in UK test results. He even said that if we were to withdraw the application now we will still lose the money. Realising the mistake we have done and with no choice left we decide to go ahead with the application to get another extension. Indeed previously we did check on numerous sites and even spoken to few law firms about this letter over the phone but no one had given us any definite answer about the legitimacy of this letter but to proceed with the FLR(M) as per the new rules. Only big mistake on our part was actually not checking the length of the visa Home office issues as per new rules. If we knew it was meant to be 33 months not 27 months we definitely would have discussed it. Anyway in the end with no choice left we submitted our documents with case worker and after checking and ticking everything he directed us for biometrics. Once done with biometrics we were told to wait in the cafeteria while they process our application.

In waiting area we could see the progress of the application on the screens and could see ours was stuck for long time after the initial process. We must have waited for over 2 hours before our number was called but surprisingly not at the collection counter. This is where they dropped the bombshell. When we went to the desk which was right next to the desk where we submitted our documents at first place and it was different casework this time. She said that they are satisfied with the submitted application but further enquiries need to be made because of which they are unable to make any decision today and holding our application. This came as shock to us and we tried enquiring about it for which she quite rudely refused to answer. I asked her what will happen next and how long will it take for which she again shook her shoulder in typical nonchalant way which I felt quite rude and intimidating. I asked her is it because of us applying for FLR(M) instead of ILR as she was only issued 27 month visa and she replied that my wife cannot get ILR and will only get 30 month extension. At this stage I completely lost with her I said that do you even know about our application and what we are refereeing to or just simply been told to give us this letter. I said that we were issued wrong visa of 27 month and refer to the case worker who accepted our documents and was still sitting on the next desk. Without paying any attention to what I said she started taking out faults in at British high commission India who issued 27 month visa and started arguing that why we didn’t check it before. I said that we did try but the number on that letter or the email or web address doesn’t exit any more as they dated back to UK border agency days. She said that she doesn’t know what we were talking but will put a note for us. I even said that we in fact initially came with the impression of 60 month rules but if you only give us 30 month extension we will still be well short of 60 month qualifying period and may have to go for another extension. Usual she wasn’t interested or had any clue.

At this stage it was becoming like we are just hitting our self into brick wall. I said to her that clearly you yourself don’t know what the rules are as the person sitting next to you says one thing and you say different thing though you expect us to be expert in it. I could clearly see that previous case worker was also hearing our conversation and was shaking his head in disbelief. She said that she can’t guarantee what the first case worker said but our application will be pass on to the team who will make these enquires and we can phone at the number given in the letter she gave us. Straight away I raised the point that there is no number printed on this letter for us to call. Lookingg at the letter and realizing the mistake she took the letter back and scribbles the number saying that we can call to enquire this number (08706067766). Looking at the number I immediately knew that this was the same number which was given on the letter which was attached by the British high commission India when issuing the visa and based on which previous case worker said we still would be eligible for ILR. I pin pointed it to her and there she goes again arguing that this number does exit and I actually had to pull the scan copy on my mobile to prove my point that number is not valid anymore as original letter was already attached with our submitted application. Believe it or not at this madness didn’t end there and went to the next level as she said that she will ring it and verify herself. After trying herself she admitted her defeat and scribbled the new number and said that that we will notify when the decision will be made asking how would you like to collect the documents?

Obviously at this stage we were completely distraught and disgusted by the whole treatment so we said we would like to collect in person so that if they made any other mistake we can rectify it then and there. She said she will put the note for 27 month visa but we can only get 30 month as extension and left the desk in haste while we were still sitting there. Once she left the previous case worker and his supervisors came to us who have clearly heard our whole conversation along with quite a few other and apologies for whole episode suggesting us to raise the complaint if not happy with the case handling while referring to the HO Immigration website.

We came out of the building in complete disgust still sinking in what has just happened. Once home we refer the HO complaint link to raise our complaint but found it to be not very informative. We felt it was bit vague without any clear instructions which leave us with only option of pursuing this matter through solicitor. We decided to wait till we hear from them.

Finally on 5th September we received two recorded envelope containing our original documents and letter stating that they have issued 30 months extension. Before this could even sink in we realised that whole load of our original documents were missing including our original marriage certificate, wife’s original degree certificate and my payslips and P60 documents. Since it was Saturday there is nothing we could do but agonisingly waiting till Monday before we could contact them. So Monday first thing I called the number she gave me on letter and after going though whole load of automated stages finally been put through person who said that we have to wait just in case there it’s in post. I said are you sure if there was another post and if that’s the case could you please give us tracking number for which he said they are not sure but he put me on hold to do further enquiry. Guess what, they found there were meant to be 4 packages and two still not been posted. Absolute shambles is the word I could describe this whole episode.

Anyway following Thursday we received the remaining envelopes and the letter with my wife biometric card. After checking the card we found that they have made up for the missing months and issued her 33 months visa till June 2018 to correct the mistake. I was still concerned as my wife travelled to UK only after 50 days of issuing the visa that is in end of July. So just to confirm that we don’t need any further extension I have checked with solicitor and explained the whole situation to him. He said that she will be eligible for the ILR in May 2018 as they corrected there mistake. He said that even though she travelled to UK after 50 days of issuing the visa but still with in the 90 days grace period so will not require another extension. He also said that issuing her 33 month visa they tried to correct there mistake. We could have proceed with the ILR had we not applier for the FLR(M) and still could proceed but now it will be with only 50% chance of success. To be honest after spending almost £1600 of our hard earned money and going through all this hassle we just didn’t fancy this or had any strength or patience left to go through all this yet again and take a punt of another £1900. So we have decided to wait till 2018. Though I am still contemplating about sending in complaint about the complete fiascos at HO and putting us through all this stress but that will be for another day.

[vinny]

The spouse visa should have been valid for an initial period not exceeding 33 months, under D-ECP.1.1. They issued her spouse visa for 27 months, under 285. That's a difference of 6 months.

FLR(M) is normally granted for a period not exceeding 30 months, under D-LTRP.1.1.

Therefore, to correct their mistake properly, shouldn't they have granted her leave for a period not exceeding 30 + 6 = 36 months?

[vinny]

The UKVI's letter explicitly states in writing that the applicant may apply for ILR before the expiry of leave.

If that doesn't give an applicant a legitimate expectation, then is it better to treat all correspondence from the UKVI as meaningless or deceptive?

However, I suspect you are right and the courts may come to the same view with respect to the UKVI's correspondence.

The UKVI cannot have caseworkers making new policy that are contrary to the Immigration rules. But they should correct their mistakes without the applicants having to unduly suffer from their mistakes.

I think that Obie is correct.

Apparently, similar to telephone conversations, applicants cannot rely on Home Office correspondence.

[Thejengaking]

Hi,

I originally was granted a spouse visa for 27 months (from Australia) and have since had to re-apply for a 30 month extension, it was granted and when i asked about the difference in visa from spouse to family and would i need to re-apply for another 30 months to make up the difference i was also given the same rude and very unhelpful answer of "phone this number" (this was at the croydon office), to be honest it was so much hassle i just took my letter and left however i feel i probably should have looked into this more before re-applying as it now looks like i am going to have to apply for 30 more months and another chunk of cash for the sake of 3 months??

Anybody have any other experience with this that could lend any advice?

Thanks

[kulpreetahuja]

Hi Everyone,

I am more-or-less in the same boat, my wife was given the 33 months visa but as the accompanied letter "NOTICE TO THE APPLICANT JOINING FAMILY IN THE UK" doesn't have any reference number anything concrete I am not certain if she can apply for ILR or not.

For instance the even in this post the caseworker in Croydon office weren't sure, one said were eligible for ILR and the other said you are not. And when you check on the gov.uk website "https://www.gov.uk/settle-in-the-uk/y" it suggests we need extension. So I am totally confused, so what I would like to know has anyone successfully filed ILR after 33 months based on this letter.

Any help would be much appreciated.

Thanks

Regards

Kulpreet

[Obie]

This post is so old, that i needed to refresh my mind again.

However the main point is that if you had applied before the 09-07-2012, then your wife will qualify under the old rule.