ILR 5 years qualifying period after appeal allowed

[haidzakk]

Dear All,

Sorry if I am jumping into the queue or if I am posting in the wrong place but as I did not post anything before, I do not know how to post a question. Please excuse my ignorance.

My question is that my spouse appeal was allowed as the ECO wrongly refused her entry clearance visa and the appeal was allowed in January 2017. She entered in April 2017 and I extended her visa in December 2019. Now that she is about to complete 5 years but I have been informed that as she was granted leave outside the rules, her 5 years qualifying period will start from the time her visa was extended. Means, she will not be applying for ILR but rather will apply for an extension. I am a bit confused that why we will be punished for the mistake of the ECO?

Can someone please clarify if she will be applying for ILR or an extension?

I look forward to hearing from you soon.

Haider

[waitingfornow]

Hi ,

Who said this- is this advice coming from a lawyer or home office ?

[Ticktack]

So I'm guessing the scenario is that She initially applied for a spouse visa. She got rejected for whatever reason.
You guys appealed it and it got overturned, and you got issued a visa down the line.
She's come in and spent 30 months. Renewed the spouse visa (SET M). Another 30 months issued. Total of 60 months.

If this is the scenario, your next application should be ILR Set M.

Provided you meet all other requirements. Your letter from the HO at the time of renewal should have confirmed this to yourselves.

[haidzakk]

Thanks everyone for their time to reply.

I do not think this case is that simple and therefore, I requested an expert opinion. It looks that my wife is eligible for ILR but a lawyer told me that as my wife was given entry clearance outside the rules, it is presumed that she is on 10 years route. After extension, she was switched to 5 years. I cannot believe it but this is what a legal adviser told me. I kindly request the Administrators to give their opinion in this case.

Thanks once again.

[zimba]

Do you have her decision letter from 2017 ? On what basis the advisors are saying that she was put under the 10 year route?
I suggest a subject access request to get the full picture: https://www.gov.uk/government/publicati ... mmigration

[vinny]

Did she meet the requirements of the rules for entry clearance under the 5-year partner route at that time?

The UKVI has added a helpful Guidance on Implementing allowed appeals

where the determination finds that the relevant Immigration Rules are met, you should grant the leave or entry clearance set out in the relevant rules

Unfortunately, prior to this more sensible Guidance, caseworkers may unreasonably place successful appellants under a ten year route even when they had met the requirements of the rules under the 5-year route. Effectively punishing appellants for caseworkers’ mistakes.

If they won’t retrospectively correct their position, then be careful of applying for ILR too early.

[haidzakk]

Did she meet the requirements of the rules for entry clearance under the 5-year partner route at that time?

The UKVI has added a helpful Guidance on Implementing allowed appeals

where the determination finds that the relevant Immigration Rules are met, you should grant the leave or entry clearance set out in the relevant rules

Unfortunately, prior to this more sensible Guidance, caseworkers may unreasonably place successful appellants under a ten year route even when they had met the requirements of the rules under the 5-year route. Effectively punishing appellants for caseworkers’ mistakes.

If they won’t retrospectively correct their position, then be careful of applying for ILR too early.

Yes. She did meet the requirements. The ECO did not consider a payslip but in appeal, it was declared by the Judge that the ECO and ECM have made a mistake but the appeal was allowed on Human Rights basis and wife was given leave to enter outside the Rules. The advisor showed me the attached decision from the Home Office when a person was given entry clearance outside the rules after allowed appeal and the Home Office did not consider it to be 5 years route from the entry. I do not know how to attach a file here. Is there anyway I can share the decision here?

[haidzakk]

Do you have her decision letter from 2017 ? On what basis the advisors are saying that she was put under the 10 year route?
I suggest a subject access request to get the full picture: https://www.gov.uk/government/publicati ... mmigration

From: Home Office Atlas <home.office.atlas@notifications.service.gov.uk>
Date: 28 October 2021 at 10:23:09 BST
To:
Subject: Application Update
Reply-To: atlasnotifications.notmonitored@homeoffice.gsi.gov.uk

GOV.UK





Dear S.
Ref: 1212-0001-
We are writing to you regarding your application for indefinite leave to remain made on 23 October 2021 under the reference above.
You have submitted an indefinite leave to remain application as the spouse of a settled person, this application will be assessed under Appendix FM of the Immigration Rules.
Having assessed your immigration history, the Home Office has deemed the application you have submitted as incorrect. To be granted indefinite leave to remain you must have completed 5 years under paragraph D-LTRP.1.1 of the Appendix FM route.
Please see your immigration history below:
You applied for leave to enter as a spouse on 26November 2012. you were granted leave outside the rules on 20 July 2016 Until 20 April 2019. (After appeal) Appeal granted based on human rights.
You applied for leave to remain as a spouse from 08 April 2019. This was granted from 16 April 2019 until 28/10/2021.
Applicant applied for Indefinite leave to remain as a spouse on 23 October 2021.
Unfortunately, Leave Outside the rules cannot count towards meeting time spent on the 5 year route. As you have not done enough time on route the Home Office would like to assess your application as an application for further leave to remain under Appendix FM. In order to do this we will need you to resubmit a new application with our further leave to remain team.
As your last visa expires in October you are currently covered by 3c leave. If you withdraw your current application with us before submitting a new one your 3c leave you will be cancelled. This could have a negative impact on your future applications with us. You would also become an overstayer and may be liable to be removed.
If you chose to submit a new further leave to remain application please inform us and we will get your current application withdrawn and refunded. You will receive a full refund minus a £25 administration fee and £800 super priority fee as your current application has been considered in the required time frame should you choose to withdraw. Please take some time to weigh up your options and confirm how you would like to proceed within the next 10 working days by responding to SETMDOCS@HOMEOFFICE.GOV.UK
I look forward to hearing from you.
Yours sincerely,
M Member
Set (M) Manchester
UK Visas and Immigration
On behalf of the Secretary of State

[vinny]

Yes, the appeal was granted under human rights grounds because those are the only grounds available for an appeal to be granted.

However, if the appeal had determined that appellant had satisfied the requirements of the rules, then, under the current Guidance, this is correctly recognised as a caseworker's error. Caseworkers may currently grant leave under the rules and not outside the rules.

Unfortunately, the current Guidance did not exist prior to 04 August 2020. Their email did not acknowledge their current Guidance and did not retrospectively amend her previous leave from being outside the rules to leave inside the rules.

Suggest that she vary her application to FLR(M), and pay the additional IHS, as suggested.

However, consider making a formal complaint and asking your Member of Parliament to enquire about their unreasonable position that their current Guidance has since acknowledged and corrected. Perhaps she may be entitled to a remedy and compensation?

[waitingfornow]

Hi Guys,
Im not sure if i should start a new thread or ask here because i have the same situation.

The ECO refused my entry clearance in Nov 2016 and I appealed.
in Feb 2017 I received this email from Global Appeals:

Your appeal has now been reviewed by our Entry Clearance Manager and the decision to refuse your application has been overturned. The British High Commission New Delhi will contact you shortly. Please find an attached copy of the withdrawal letter which has also been sent to the Immigration and Asylum First –tier Tribunal for their information.



Yours sincerely



ECA/YN

Global Appeals - UKVI

International Casework & Quality Assurance Team


Below is the letter they attached :

I am writing to inform you that having reviewed your applications on behalf of the Secretary of State we have
decided to withdraw the decisions of 15/11/2016.
The reason for withdrawing the decision is based on all the information available to us from the original
application and the appeal.
This letter is being copied to the Tribunal and to the Decision Making Centre that made the original decision
to refuse the application.
The Decision Making Centre will contact you further with notification of the new decision, and any further
action you should take. Please allow them time to complete all mandatory actions. You may refer any
further correspondence to them directly.



They have not mentioned human rights anywhere - does this mean I was granted leave within the immigration rules?

[vinny]

Below is the letter they attached :

I am writing to inform you that having reviewed your applications on behalf of the Secretary of State we have
decided to withdraw the decisions of 15/11/2016.
The reason for withdrawing the decision is based on all the information available to us from the original
application and the appeal.
This letter is being copied to the Tribunal and to the Decision Making Centre that made the original decision
to refuse the application.
The Decision Making Centre will contact you further with notification of the new decision, and any further
action you should take. Please allow them time to complete all mandatory actions. You may refer any
further correspondence to them directly.



They have not mentioned human rights anywhere - does this mean I was granted leave within the immigration rules?

It looks like they had spotted their mistake during their Entry Clearance Manager review, prior to defending your appeal. I think they have granted you leave under the rules.

[waitingfornow]

Thanks for replying Vinny - hope this is the case because i'm due to apply tomorrow. Will update the HO decision hopefully it helps out someone in a similar situation.

[haidzakk]

Thanks for replying Vinny - hope this is the case because i'm due to apply tomorrow. Will update the HO decision hopefully it helps out someone in a similar situation.

Check the entry clearance. If it says something like "Spouse CP", then it will be 5 years route from the date of entry but if it says "Leave outside the rules", then I believe it is same and mine.

[waitingfornow]

Just now checked the entry clearance stamp says spouse cp . Thanks so much for confirming.

[vinny]

However, consider making a formal complaint and asking your Member of Parliament to enquire about their unreasonable position that their current Guidance has since acknowledged and corrected. Perhaps she may be entitled to a remedy and compensation?

See also No “historical injustice” in harsh but correct refusal of immigration application for prospects of success for future compensations, etc?