Alex is a British citizen who married a nonEU citizen Bianca who came to the UK in 2015 on a spouse visa. When her visa was close to expiring in Feb 2018 she received a letter from the home office indicating that she is eligible to apply for ILR. Apparently her friend who was on a similar boat had gotten her ILR after 2.5 years of spouse visa with premium processing a few months prior. Because of the letter and her friend's experience she applied for ILR (please no judgment on this error). She received a rejection a few months letter that she did not qualify for it because of the "5 years requirement" and also they had submitted "insufficient financial evidence". They are above the 18600 yearly income by a significant amount and as per ILR requirements which indicated 3 months of pay stubs, they had submitted 4 months of pay stubs. Home office noted that they needed 6 months instead.
Upon conferring with a solicitor who advised an appeal this went to FTT. The judge refused essentially indicating the same reasons and they did not get much support from the lawyer who was representing them who seemed ill prepared. The final decision letter also mentioned financial strain on NHS and housing which seemed false since they own their own house and are taxpaying professionals.
This decision was re appealed and the decision was appeal granted under Article 8- "some form of leave to remain" which also confirms the first judge did not review the evidence in its entirety and an error of law was made. My questions are as follow:
1. Is this a definite discretionary leave/LOTR which the solicitor also says it will be but asked us to wait for the home office letter. Not sure at this point if the solicitor is trustworthy since she seemed very optimistic with the first appeal and with the second one said instead of the ILR she will be granted the alternative of spouse visa extension while counting the months spent in all the appeals which would make her eligible to apply for ILR in 2020.
2. Is there a chance that is not the DL and a spouse visa extension?
3. If it is DL, does she now have to spend 10 years in DL with repeated extensions before applying for ILR, essentially making her stay since 2015 to early 2019 null?
4. Is there a chance that ILR can be applied for earlier even if under DL. The home office rules mentions some exemption under appendix FM which I could not fully comprehend.
5. They do not have children but if they were to in the future while she is in DL, will she be eligible for child benefits?
It is very disheartening that they never really took responsibility for the letter and kept on harping on the same issue with the finances when it was submitted in its entirety with the 6 months paystubs at the time of the first appeal. And even with admission on error on their part, how is it now under outside of immigration rules and the solicitor also never mentioned that this DL was a possibility prolonging further the ILR route when she has been here lawfully all along. But I guess that is immigration. Thanks in advance for the guidance.
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