ILR for Spouse Visa 5 year Route but 17 months wasted on Extension Visa Refusal Appeal

[QasMal786]

Hi All,

I cant seems to find an answer to my question anywhere hence creating this post.

My Spouse came to UK in September 2013 on Spouse Visa (30 Months), we than applied for her Spouse Visa Extension in April 2016 which was refused, I appealed against the decision and finally managed to over turned HO decision after 17 months of wait (HOPO comments to the FTT judge were it was refused because of my two jobs confusion etc etc, FTT Judge also awarded us the Appeal fee) I have done some research here and it looks like HO could take another 4/6 months to process the extension visa after the appeal decision.

Now coming back to my question my spouse 5 years in the UK will complete in September 2018 but does her Visa Appeal period of 17 months + it could take another 4 /6 months for HO to stamp Spouse Extension visa and send her back will/can be included to complete her 5 years in September?

I remember calling HO last year to get an update and one of the HO officer briefly said that Appeal period will not be counted towards 5 years period, is this true and there is no way to include the Appeal period towards 5 years route as we have won the appeal and even the FTT Judge mentioned HOPO Refusal based on Confusion comments on his letter.

We really don't want to wait for another 30 months before applying for ILR because we have already wasted 17 months on appeal plus god knows how long HO will take to Stamp her passport (I bet they work even slower then flash {Zootopia Sloth}) and send us back.

Is there a way forward for us????

Thank you in Advance
Mal

[vinny]

I remember calling HO last year to get an update and one of the HO officer briefly said that Appeal period will not be counted towards 5 years period, is this true and there is no way to include the Appeal period towards 5 years route as we have won the appeal and even the FTT Judge mentioned HOPO Refusal based on Confusion comments on his letter.

I think that the HO officer was mistaken, if she applied in-time and Section 3C/3D was engaged when they refused (e.g her leave had expired at the time of the refusal).

[kqas]

Yes, we applied in-time and when they refused her extension her visa had expired so under Section 3C /3D, I have read it and it does says the leave will extend but does it mean that her time period has continued and we could apply for ILR in September when she will complete 5 years in UK?

I have another question, does HO have the legal right to put her on 10 year route now? I have seen few others in similar circumstances who won the appeal at FTT but they have been put on 10 year route?

I am sorry i have to use a new account as I cant seems to login or reset my password and none of the Board Administrator has responded to my request

[vinny]

Yes.

It depends on how she won her appeal. If it wasn't on the basis of human rights but on satisfying Appendix FM-SE without the Ex., as you indicated, then I think she is still on the 5 year route.

[kqas]

The letter from FTT judge does state that the appeal is granted on the basis of Article 8 but he also mentioned on his letter that we clearly demonstrated to HO that my pay is well over the financial requirement.

So does it complicate matters if appeal is granted on Article 8 basis? we went to FTT to challenge HO decision but it looks like the FTT appeals are heard on humatarian grounds?

[Freshaisha]

Have you had any update on this? My husband is in completely same situation...although we were told the 18 months he waited for appeal would coumt towards the 5 years but have suddenly received letter in the post saying he is now on 10 year route after winning appeal

[vinny]

Unfortunately, the amended rights/grounds of appeal deleted

(a)that the decision is not in accordance with immigration rules

So, effectively, there are apparently no rights/grounds of appeal against applicants’ alleged failure to satisfy the immigration rules. Analogous to Adjei, compliance with Appendix FM (excluding Human Rights) is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight.

Appeals that are allowed on Human Rights grounds puts the applicants on the ten-year path?

[kqas]

Have you had any update on this? My husband is in completely same situation...although we were told the 18 months he waited for appeal would coumt towards the 5 years but have suddenly received letter in the post saying he is now on 10 year route after winning appeal

I am still waiting to hear back from HO but seeing various other people stories I think HO will put her to 10 years route too.

Quick question for you did the FFT judge awarded you the FTT fee of £140 and ask HO to pay for it?

if you find any legal solution that can put your husband back to 5 years route than please do share over here, I will do the same?

[kqas]

Unfortunately, the amended rights/grounds of appeal deleted

(a)that the decision is not in accordance with immigration rules

So, effectively, there are apparently no rights/grounds of appeal against applicants’ alleged failure to satisfy the immigration rules. Analogous to Adjei, compliance with Appendix FM (excluding Human Rights) is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight.

Appeals that are allowed on Human Rights grounds puts the applicants on the ten-year path?

did you mean that Tribunal judge doesnt have the power to grant visa on Human Rights ground or that is the only ground that they can allowed these appeals?

i was hoping to see something like "(a)that the decision is not in accordance with immigration rules" on the Judge letter but it clearly says that our appeal was allowed on Human rights Article 8 and by looking at many forum articles a lot of people have been put on 10 years route after winning Tribunal appeals hence the reason I have asked if HO has the power to do so?

If they put us on 10 years route do we have any ground to challenge the decision or does anyone knows a good solicitor who have over turn this in the past?

[Obie]

Unfortunately, the amended rights/grounds of appeal deleted

(a)that the decision is not in accordance with immigration rules

So, effectively, there are apparently no rights/grounds of appeal against applicants’ alleged failure to satisfy the immigration rules. Analogous to Adjei, compliance with Appendix FM (excluding Human Rights) is not a ground of appeal to be decided by the Tribunal, any findings concerning that will carry little weight.

Appeals that are allowed on Human Rights grounds puts the applicants on the ten-year path?

Well I believe the whole of Appendix FM, is essentially the UK seeking to give effect to its Human Right obligations.

There are 2 aspect to that, which are the positive and negative obligation.

Allowing family members from overseas who meets the terms of the rule is part of their positive obligation.

Granting leave to people who have to rely on EX 1 may be part of their negative and positive obligations depending on the circumstances.

I beg to differ with you, that if a person succeeds under Article 8 following an appeal, they will be entitled to 10 years. I do not think that this is the proper position in law.

In circumstances like this, the views and finding of the judge will be relevant, and i am of the view that if the Judge find that the Financial requirements are met, then the person is entitled to succeed under the 5 years route, but if he finds that EX(1) is engaged, then that will inform the nature of the leave granted.

This must be the correct legal position, surely.

[vinny]

You may be right.

I thought that, in the UKVI's view, only the Ex. part engaged the Human Rights aspects.

[vinny]

I also think that it's ridiculous to limit appeal rights/grounds to human rights only, without regard to whether the applicant satisfied Immigration rules.

[Obie]

17. The MIR in the new Rules laid before Parliament reflected those policy choices. In June 2012, the Home Secretary laid before Parliament HC 194, which introduced a new Appendix FM to the Immigration Rules dealing with applications from family members. Unusually, the new Rules were unanimously approved by a positive resolution of the House of Commons. When the Rules were tabled in the House of Lords, a motion of regret was withdrawn and there was no negative resolution. The new Rules came into force on 9 July 2012. They were further amended by CM 8423 which inserted a new Appendix FM-SE dealing with the procedural and evidential requirements and came into force on 20 July 2012.

18. Appendix FM as updated in 2016 begins by stating (para GEN.1.1):

“It sets out the requirements to be met and, in considering applications under this route, it reflects how, under article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic wellbeing of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others (and in doing so also reflects the public interest considerations as set out in Part 5A of the Nationality, Immigration and Asylum Act 2002). It also takes into account the need to safeguard and promote the welfare of children in the UK, in line with the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009.” (italicised words added by Statement of Changes in Immigration Rules (2012) (Cm 8423))

19. Nevertheless, the Appendix contemplates that the Rules will not cover all the situations in which a person may have a valid claim to enter or remain in the UK as a result of his or her article 8 rights. Paragraphs GEN.1.10 and GEN.1.11 both provide for what is to happen if an applicant does not meet the requirements of the Appendix “but the decision-maker grants entry clearance or leave to enter or remain outside the rules on article 8 grounds”.

[vinny]

Thanks, Obie.

[Obie]

I also think that it's ridiculous to limit appeal rights/grounds to human rights only, without regard to whether the applicant satisfied Immigration rules.

I think you are right. I agree with you.

I had a misfortune of meeting a judge at Manchester, who was refusing to apply Exception 1 to a gentleman on the basis that the appeal was a human right appeal, and the 2002 Act define human right decision as a decision which breaches a person's convention rights, and as the man has a Tier 2 leave the decision cannot breach his right, as he is not being removed.

It was a total misapplication of the law, but thankfully the Upper Tribunal noticed and overturn it, but i agree that this limitation of appeal rights, does create a lot of problem and misunderstanding.

[kqas]

Thank you Vinny and Obie for a clear and detailed explanation.

We have received the resident permit card and passport back today with HO letter (link below), are we making the right assumption from the letter (HO refused her Spouse Visa extension application because they said we didn't meet the requirements of paragraph R-LTRP.1.1 (a), (b) and (c) on t he refusal letter but after we won the appeal last month in November they are now statisfied that we do meet these requiremnts) that she is still enroute to complete her 5 years route next year in September 2018 (arrived September 2013 in UK) ?

HO Letter (2 pages)

[Alexa1]

Any update? Did the extended FLR M (after appeal) reset the clock to an additional 5 years or were you able to apply for ILR with the time spent before and during the appeal?

[bruteforce]

This is an old thread but the OP has clearly mentioned above that the leave was granted on the basis of immigration rules.

[Alexa1]

I think the attached HO letter mentions it was granted under EHCR article 8, hence my question about resetting the clock.

[kqas]

I have spoken to a few solicitors and they said we should be able to apply for her ILR without waiting for another 5 years from the date she was granted the extension. she officially completed her 5 years back in September 2018 and we are going to apply for her ILR this month.

I am still in doubts but will find out in next few months.

are you in the same position?