Applied for Marriage Visa, issued with discretionary. help!

[simmo1038]

Hi, all I am very concerned at the moment and could do with some sound advice...pls bear with me as i endevour to explain.

I met my wife whilst she was working in the uk on a work permit in 2007..She had been in the uk from 2005. Whilst she was still working in May 2008 she fell pregnant (still on work visa). She told her boss and he asked her to leave. After making a few enquiries we decided to challenge him through an employment tribunal. Un-beknown to us he had emailed the HO and cancelled her work permit Oct 08. (we found out on the day of the ET hearing, Dec 2008). We won the case and he was ordered to pay unpaid wages and the judge confirmed that her employee status had remained unchanged still employed.
My wifes work permit was valid till 2013.

In May 2009 we married and in August 09 my wife applied for a marriage visa.
After submitting all the requested paperwork, fees and proof of the ET case I believed all was ok.

To my shock today we started to complete ILR paperwork as we are nearing the 2 year point. After checking my wifes passport in has Limited Leave to remain. I decided to check the HO letter which was sent to us back in Nov 09 which says she did not qualify for a marriage visa but was given Discretionary Leave instead.

Long story short her bosses actions I think caused a gap in her employment status as far as the HO are cocerned, (technically making her illegal to be here). This now effects my step daughters Univesity Application as she cannot get ILR. The government will not fund her fees for next year (which she has to pay back) because her mum has been given Discretionary Leave and not the marriage visa as applied. She is a very bright student and I feel we have let her down as a result. Im sure the HO have got this wrong but how do i go about trying sort out a nearly 2 year old problem?

Any advice welcome...to try and put this right.. thanks.

[geriatrix]

From UKBA's perspective, the sponsorship was terminated by the employer in Oct. '08. Your spouse was therefore granted Discretionary Leave on the basis of marriage - despite being in UK without valid leave that the time.

The Employment Tribunal dealt with the "employment" aspect of the case, and perhaps the "immigration" aspect was either not within the scope of Employment Tribunal or was overlooked or was not explicitly mentioned in the judgement (to direct the employer to re-instate the sponsorship status and apply to UKBA for the same).

UKBA received a sponsorship termination request from an employer and they acted on it. With no further directions from sponsor / court, there was nothing further to be done on the issue!

One may apply for ILR after 6 years of stay in the UK under discretionary leave.

Answers to the following questions may help others to offer appropriate advice.
1. How old is your step-daughter?
2. Have you formally adopted her?
3. If she is in the UK, what is her current immigration status?

[simmo1038]

Many Thanks for your reply.

My wifes boss terminated her sponorship with the HO without her knowing, she was never informed by him or the HO. It only came to light in the ET when he produce an email and tried to submit it as evidence against her.

The ET could clearly see what he was trying to do and had told him that as her sponsor/ employer he had broken his conditions as an employer.

When we applied for her marriage visa all of this was communicated to the HO with supporting documents from the ET and the Judgement which does clearly state that at no time was there to be break in her employment contract.

It wouls appear that they have not taken any of this into account when we applied for the marriage visa.

IRL 6 six years down the line for us will possibly wreck my step daughters chances of university.

In reply to your questions.

1. My step daughter is 17.. 18 in may 2012
2. Have not formerly adopted her.. Would this make a difference?
3. She lives with us in th uk and has been here since 2005 when her mum arrived, we live as a family with 2 little ones which we have had.
4. Her status I believe is the same as her mums Discretionary Leave, as she is her dependant.

Any help advice is very welcome..thanks.

[geriatrix]

It wouls appear that they have not taken any of this into account when we applied for the marriage visa.

They did .. and that is why she was granted discretionary leave. FLR(M) requires valid leave ... which she did not have at the time of application.

I agree that it was your employer to blame but from UKBA's perspective it is not their fault that the employer terminated your spouse's sponsorship and also that they have no role to play whatsoever in figuring out why the employment was terminated or whether it was lawful or not.

Like I said, they received a sponsorship termination request and they acted on it. Was the employment termination legal or illegal is not UKBA's job nor does it lay within their purview. "Immigration" and "employment" are two separate areas and UKBA is only responsible for the former.

[simmo1038]

Thanks, I see what u re saying.. 2 seperate Issues Ho have done thier part.

Is there anyway that I can tried to get this rectified with HO or am i fighting a lost cause?

I suppose what I am asking is will they look at this because of the situation at the time and now?

Many thanks for your advise.

[mrlookforward]

Thanks, I see what u re saying.. 2 seperate Issues Ho have done thier part.

Is there anyway that I can tried to get this rectified with HO or am i fighting a lost cause?

I suppose what I am asking is will they look at this because of the situation at the time and now?

Many thanks for your advise.

Would have been much easier to put things right if you had actually read the papers that accompany when leave to remain is granted. You did not take 2 minutes to go through the papers or even looked at the leave to remain sticker to read what it says. I am sure whatever happened to you was totally unfair and wrong, but you too are to blame for the situation you are in now because you never gave a thought about reading important papers. But its been two years since HO granted DL, and there doesn't seem to be a chance to challenge the matters in a court of law. Even if you try this, it will be a long drawn costly battle which will be full of headache.
You may still apply for ILR by explaining everything, but this application will be outside the rules, will take a long time for HO to make a decision and you will need help of a good immigration advisor/solicitor.