Their failure to give her an opportunity to correct the
English Language defect
may be unlawful.
Appeal in-time so she has time to take the test. During the appeal process, she is not liable to be removed.
Request her passport back for the purposes of taking the test. If they still
retain her passport, contrary to their
FOI response, then they may be abusing (
98) Section
17.
Ask the Tribunial to give them directions for returning her passport for the purpose of taking the test.
Consider informing the Home Secretary.
There may be another
alternative solution than the return of her passport.
After taking the test,
if she wins her appeal, then they
may put her on the ten year path.
if she loses her appeal (or withdraws her appeal?), then reapplying, with the correct test, should keep her on the five year path.
Applying for an entry clearance after her leave had expired
may break her continuous period for ILR.