In-country spouse visa with appeal pending

[ouflak1]

Hi all,

Just want to clarify a situation for a friend of mine hoping to be married in August. The groom is a British citizen, the bride an Indian citizen here on a student visa since 2006. Her stay has always been legal with 1 extension. The second extension is where there was an issue as it was refused because the college did not respond to an enquiry about her attendance in an 'understandable' (their words) way. She was given the right to appeal and the college has drafted a proper document detailing her attendance. Their will be a hearing before a judge, but the date is not set yet. The couple has been living together for two years and are looking to start their family after marriage. She does qualify to apply for a spouse visa in-country and I have advised her to do so the day of or the day after their marriage.

Questions:

1. Will there be a problem applying for a spouse visa while an appeal is pending for a different visa?

2. If there is a problem, and she goes back to India to apply for a spouse visa from there, she would presumably have to cancel her appeal. Would the time spent waiting for her appeal still count as 'legal' stay. I'm fairly certain the answer to that is 'yes', but it is an important point to her.

1. If there is a problem, would it be possible to cancel the appeal and still apply for the spouse visa in-country?

3. If there is no problem, and she applies for the spouse visa and gets it, what happens to the student visa appeal process? Does it just sort of vanish on its own? Would she still have to specifically cancel process if it is still pending?

Thanks in advance!

[vinny]

The couple has been living together for two years

Did she make an application for leave to remain as an unmarried partner or as a Tier 4?

She cannot make another application for leave to remain while her appeal is pending.
Her stay remains legal under sections 3C & 3D, if she had made an in-time leave to remain application.
If she leaves the UK, then her appeal may be treated as being abandoned.

[ouflak1]

The couple has been living together for two years

Did she make an application for leave to remain as an unmarried partner or as a Tier 4?

She cannot make another application for leave to remain while her appeal is pending.
Her stay remains legal under sections 3C & 3D, if she had made an in-time leave to remain application.
If she leaves the UK, then her appeal may be treated as being abandoned.

Her appeal of a Tier 4 extension is pending. Her extension application was on time and her appeal was within the time period given. Just to clarify your response, while she has her current appeal pending for the student extension refusal, she cannot make any other application for any other visa type? Even if she marries, has been admitted to and in the country legally for several years as well as with her partner-to-be-husband for over two years and thus qualifies for the in-country spouse visa? This is important to know as they are willing to travel to India and apply for her spouse visa from there if need be (they will be having their reception there anyway). As their marriage is in August, they have some rather big plans to make in a rather short period time.

If this prohibition is indeed the case, then it sounds like their best option is to simply get married, go to India and apply from there. They must also hope that the appeal is not scheduled before early August, or if it is, that it goes her way (which it should but you never know with these things). It will likely mean some time apart, but they have the rest of their lives to make up for that.

Along the more pessimistic lines, if her extension is refused, how much time does one typically have to leave country and accrue no illegal stay? She wants absolutely no overstay on her record ever.

[ouflak1]

Hi All,

Just need to a further point of clarification on this. After the bride gets married, will she be able to abandon the refusal appeal and still apply in-country for the spouse visa? My instinct says no as I 'feel' that the moment she abandons the appeal, while still in this country (the original student visa has since expired), she is an overstayer. But there might be some leeway here I can't find anywhere on the UKBA site or from any other source.

Anybody here know?

[vinny]

No.

[ouflak1]

No.

Thanks. That was quite a read. I think I will advise her to go ahead and plan a trip back to India as soon as possible after marriage. They will be going anyway. Now they've just got to hope that the appeal date does not get set before the wedding, or if it does, that they win (which I think they would) and she promptly gets an extension long enough for them to get the spouse visa in. We'll see. I'll update as things progress.

[ouflak1]

She cannot make another application for leave to remain while her appeal is pending.
Her stay remains legal under sections 3C & 3D, if she had made an in-time leave to remain application.
If she leaves the UK, then her appeal may be treated as being abandoned.

Hi vinny, et al. I have been doing some reading of the 2002 Act from your links above and found this in Section 9:

An appeal is pending from the time that it is instituted until it is finally determined, withdrawn or abandoned. Section 104 (1) of the 2002 Act applies. An appeal is abandoned if the appellant is granted leave to enter or remain in the UK or if he leaves the UK. Section 104 (4) applies.

Now my legaleeze isn't always the best, but this would imply to me that it possible to somehow be granted other leave to remain even if you have an appeal pending. The reason why I'm bumping this back up now with this particular quote is that the Home Office has suggested to the bride that she go ahead and make a fresh Further to Leave Remain application based on her marriage. She is reluctant, mainly because I've been telling her that she couldn't make an application while her appeal is still pending. Now I'm not so sure that is strictly true. Any comments or experience on this would be very welcome. Even some link that further clarifies the UKBA's position on this matter would be useful. Otherwise, I may advise her to go for it.

[vinny]

Possible for the UKBA to concede a case before it reaches court.
Not possible to make an application (3C(4)), after refusal decision, while appeal is pending.

[ouflak1]

Possible for the UKBA to concede a case before it reaches court.

Thanks for this. But I think we will assume that this case is standing and will continue to stand with the facts pending.

Not possible to make an application

Ok, on page 25 of this document it states:

A person cannot vary their leave if they have an appeal either pending or which could be brought. For more information, see related link: Section 3C leave.

However, the Home Office has suggested she make a "fresh" (their words) application. Is this not different from asking for a variation of leave? If this is not, and they are indeed recommending a variation with this fresh application then that law states:

3C Continuation of leave pending variation decisionE+W+S+N.I...

(4)A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

If I understand correctly now, then my original understanding that you cannot make any other application while an appeal is pending is based on this statement.

That statement follows....

(1)This section applies if—

(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b)the application for variation is made before the leave expires, and

(c)the leave expires without the application for variation having been decided.

All of which applies in her case.

However....

(5)But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

(3C(4)), after refusal decision, while appeal is pending.

The relevant parts I believe I quoted above.

So, you saying that the Home Office has suggested she make a 'fresh' application for Further Leave to Remain, and that this is in effect *varying* her original leave.

Now back to the guidance in which it states:

Section 3C(4) of the 1971 Act prevents the applicant from making a new application for a variation of leave while they have 3C leave. This means that if an applicant with 3C leave submits a new application, you can automatically consider this to be invalid.

Seems clear to me, i.e., cannot make a new application while an appeal is pending.

However, Section 3C(5) of the 1971 Act allows an applicant with 3C leave to vary their application at any time before it is decided. This means that they can ask for their application to be considered on different grounds than their original application. You must check CID to see if an applicant has an outstanding application and whether 3C leave is in effect. If they have, you will need to establish if the applicant wishes the new form to be considered as a variation of the grounds upon which their original application was made.
If a person has 3C leave after you have made a decision on their application and an appeal is pending or can be brought, they can submit additional grounds of appeal up to the time the appeal is heard, if they have permission from the Asylum and Immigration Tribunal. For more information, see related link: 05.0 - Section 3C of the Immigration Act 1971 (As Amended)

An applicant can vary an application (not in appeal) before it is decided, which we knew.

*DEEP BREATH!

So it would seem to me that the Home Office is wrong to advise her to make any application whatsoever based on the law and UKBA guidance. Just to be clear, they have suggested she make a 'fresh' application based on her marriage. In my opinion, my original interpretation (and I presume yours) was that this application will be refused as invalid according to the guidance above, based on the Immigration Act.

Please verify and thank you so much for taking this time.

[Greenie]

she would only be able to make a fresh application if she withdrew her appeal, she would then be applying as an overstayer and hence wouldn't meet the rules.

I suggest that she seeks legal advice before withdrawing the appeal given that you are not legally qualified you shouldn't be advising her.

[vinny]

I think that Greenie is correct.

She cannot vary her application after a decision has been made (3C(1)(c)).
She may make a fresh application, if she withdraws her appeal.
Then they will probably refuse (and keep the application fee), if she is an overstayer with no British children.

[ouflak1]

she would only be able to make a fresh application if she withdrew her appeal, she would then be applying as an overstayer and hence wouldn't meet the rules.

This is exactly how I interpreted the rules.

I suggest that she seeks legal advice before withdrawing the appeal given that you are not legally qualified you shouldn't be advising her.

She does have a lawyer. I merely volunteered to ask on here to find out what you guys thought since it is not very obvious to find this stuff for very particular situations. Vinny's original assessment was correct. It's the Home Office suddenly telling her to make a 'fresh' application that has caused her to ask to me to bring this up again (though I did promise to update when we have results).

I think that Greenie is correct.

She cannot vary her application after a decision has been made (3C(1)(c)).
She may make a fresh application, if she withdraws her appeal.
Then they will probably refuse (and keep the application fee), if she is an overstayer with no British children.

This would seem to be inline with your original assessment and all of the rules on the matter as well as the guidance. Thanks a lot guys! I'll let her know.

[ouflak1]

Somewhat of an update (my wife was on the phone with her as I was typing my previous post): Her lawyer has just said that she is married now and everything is ok! She just needs to make a fresh new application!
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Oh boy.
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Well, here's hoping the Home Office (heh) and her lawyer are right, and we are all wrong. There will be an update.

[Greenie]

Note that UKBA often 'invite' appellants to withdraw appeals and make a fresh application - it doesn't mean the application will be granted it just means they will consider the application because they are obliged to do so. The law is clear - a fresh application cannot be made whilst an appeal is pending so I assume they are expecting her to withdraw the appeal (unless it has already been dismissed?).

Do let us know what happens.

[vinny]

If the UKBA's advice on a fresh application was in writing, then do enclose a copy of it if/when she makes a fresh application.

[ouflak1]

UPDATE: She just got a three year visa, with the possibility of getting ILR in 3 years. Surprisingly quick turn around on this. I'm trying to get the exact details on exactly what kind of visa it is, but I'm assuming it is a spouse visa of some type, considering the short wait period to get ILR. I'll update this post when I have those exact details.

[Greenie]

There is no 'type of spouse visa' for 3 years. It sounds like she was given discretionary leave, in which case she can apply for ILR after completing 6 years in this category, not in 3 year's time.

[ouflak1]

There is no 'type of spouse visa' for 3 years. It sounds like she was given discretionary leave, in which case she can apply for ILR after completing 6 years in this category, not in 3 year's time.

Yes, I assumed that there had been a change to the spouse visa that lengthened the qualifying time to 3 years (is that proposed?), thus my uncertainty. I'm certain then that this must be a discretionary leave visa and she is confused about when she can really apply for ILR. I should have the details later today.

Still she has gotten her visa. It is clearly possible to successfully apply for another type of leave to remain whilst there is an appeal pending. Despite the fact that the rules would seem to explicitly state otherwise. I guess that's what 'Discretionary' Leave is all about though. Though I don't think her circumstances are particularly exceptional, I do think she was helped by the fact that she had no illegal stay.

[ouflak1]

Confirmed. Discretionary Leave. So, if anybody has an appeal in progress, and wishes to make a fresh new application, there is hope.