Need advice please about Discretionary Leave extension

[gentle_man317]

Hi guys,

I have a question and want help from you please.

I got my 3 Years Descretionary Leave after visit Visa because my wife and my daughter are british,Married since 2008 and live in Yemen, and the leave will expire in Aug 2014.

Since I got my residence permit I didn't find a job and claiming JSA for me and my wife and I want to go back to my country YEMEN because there is a good job for me.

My question is can I travel with my family, wife and daughter,and come back before the leave expiration date two months before to extend my residence for another 3 years ?If so,after I got the 3 years further leave I will go back to Yemen and come here again to apply for ILR.

The point is I don't want to live in UK because no jobs and I only want to get ILR to be free of coming to the UK and I want to work and live with my family in Yemen.

Thank you in advance.

[Lucapooka]

It's not something that would be permitted to happen in open clear and obvious circumstances.

[gentle_man317]

It's not something that would be permitted to happen in open clear and obvious circumstances.

Could you please clearify what is not permitted?

[Lucapooka]

Sure. An application for an extension of DLR based on your family life in the UK (you have, in effect, stated that it's not possible for you to live anywhere else) will not be granted in circumstances where you and your family are not actually living in the UK; where you are living and working in Yemen; where, in your own words, you don't actually want to live in the UK.

[gentle_man317]

Sure. An application for an extension of DLR based on your family life in the UK (you have, in effect, stated that it's not possible for you to live anywhere else) will not be granted in circumstances where you and your family are not actually living in the UK; where you are living and working in Yemen; where, in your own words, you don't actually want to live in the UK.

Thank you for your reply but my solicitor told me I can do that when I came back to UK 2 or 3 months before the expiration of my current leave and there is another option to apply from Yemen based on my british family for indefinit leave to enter ILE because we are married for more than 4 years and live outside the UK.

Please tell me if those correct and I am realy appreciate your help.

[CR001]

ILE does not exist any longer, it has been scrapped.

[Lucapooka]

Your question was made with regard to extending your DL and that is what I have been responding to. If, however, you wish to make an application for entry clearance within the immigration rules, having met all the requirements, that is your choice. If granted, you would not get ILE.

[Casa]

Worrying that a legal advisor isn't aware of the withdrawal of the 4 year spouse concession.

[MPH80]

Worrying - but not surprising is it Casa given some of the simply dreadful advice we see having already been given before someone comes here.

I genuinely think that about 20-30% of the people who ask here are just immigration "advisors" trying to get help because they don't really understand the law and are just trying to make a quick buck.

M.

[gentle_man317]

Thank you for you all for your good points so my application for DL extension will be refused and the ILE is no longer grantrd.

So,I have only one option which is to stay in UK until I got the ILR in 2017 or british passport in 2018?is that correct?

[Lucapooka]

No. You can leave the UK and if and when you are ready to return you can make an application for a settlement visa under prevailing conditions of the immigration rules.

[Obie]

Well i agree that some of the abysmal advice given by so called legal rep is mind blowing and scandalous.

However i dont think there are any restriction on how long a person who obtained ILR on the basis of family life should be away for. This is not found in the rules for spouses who obtained entry clearance and seeking to apply for ILR after their probationary period.

I accept that it will affect people who obtained DLR on the basis of private life, and it may well affect him, come the time when he wish to apply for British Citizenship, as he may not be able to show 3 years lawful residence in the UK.

But no, i dont believe it will undermine his family life claim, as family life is about the family being together, and provided the family continue to live together and make a ckaum for an extention in the UK, then they should be fine.

There is no law or policy, as far as i know, that states otherwise.

[Lucapooka]

But no, i dont believe it will undermine his family life claim, as family life is about the family being together

Yes, but that would be with regard to being together in the UK with the added desire of the wish to be there.

I don't want to live in UK [...] I want to work and live with my family in Yemen.

Your post makes little sense in the context of the subject matter, Obie. Could you elaborate on why you think someone has a righteous claim to a family life in the UK if he is living in Yemen with his British family, and wishes to remain there!

[Obie]

Yes i have read it perfectly well. I have drawn the distinction between private and family life. Family can exist without the family living in the UK. It will be difficult to claim a private life in the UK, if one does not live here.

If they decide to come back to UK to apply, there is nothing preventing this.

I drew parallel with the provision for extention of Spousal visa, where caseworker are advised that it is not a requirement for an applicant to spend the most part or the whole of the probation period in the UK, to qualify for ILR.



I continue to hold the view, that the family does not have to be in the UK for the duration of the DLR, to continue to qualify. Provided the family is still subsisting, there is a strong case.

I intended to cause no offence to your post or discredit it, and it seems quite odd, that this provision is open to circumvention, but there are no rules that states the person shoild have resided through out this period in the UK to qualify.

If you find one, i promise i will unreservedly retract my post.

[Obie]

The point is, on the day of the application, both the OP and his British wife will be in the UK, and they will claim they are present and settle there.

In those circumstances, it cannot be challenged, that he is not in a relationship with a settled person, or British Citizen who is present and settled in the UK.

OP said he will come back, before leave expires.

He never suggested he will apply for extension from Yemen.

If he had suggested that, i would have dismissed it as bound to fail.

[gentle_man317]

Thank you all for your ideas and please see below,this is from Home Office document about DL and tell me your points:

Applicants granted Discretionary Leave before 9 July 2012
•Those who, before 9 July 2012, have been granted leave under the Discretionary Leave
policy in force at the time will continue tobe dealt with under that policy through to
settlement if they qualify for it (normally after accruing 6 years Discretionary Leave).
•Consideration of all applications for further periods of leave will be subject to a
criminality check and the application of the criminality thresholds, including in respect of
cases awaiting a decision on a further period of Discretionary Leave on that date.
•Applications for further leave from an individual granted up to 3 years Discretionary
Leave before 9 July 2012must be subject to an Active Review.
•Decision makers must consider whether the circumstances prevailing at the time of the
original grant of leave continue at the date of the decision. If the circumstances remain
the same and the criminality thresholds do not apply, a further period of 3 years
Discretionary Leave should be granted. •If there have been significant changes or the applicant fails to meet the criminality
thresholds, the application for further leave should be refused.

and this is from another Home Office document:

4.7 Active reviews for those with Discretionary Leave
As a person with Discretionary Leave will not be eligible for indefinite leave for six years (or at
least ten years for persons covered by the exclusion provisions), the first active review will
always be to consider further leave rather than settlement. A person whose Discretionary Leave
is extended may be subject to a number of further active reviews (where less than three years’
leave is given, for example).
When considering whether to grant further leave to remain or settlement, decision-makers
should assess whether the applicant qualifies for Discretionary Leave as at the date of the active
review(see the Asylum Instruction on Discretionary Leavefor details of the criteria to be met).
Decision-makers will need to satisfy themselvesthat the applicant meets the criteria for
Discretionary Leave. The exact considerations will vary depending on the particular reasons for
the original grant of Discretionary Leave if further leave is sought on the same basis. For
example, where leave was granted for ECHR Article 8 reasons, decision-makers would need to
consider the applicant’s current family situation and whether the applicant’s removal would still
constitute a breach of Article 8 (see the Asylum Instructions on Considering Human Rightsand
Article 8 of the ECHR). The section below sets out particular considerations required in the case
of applicants who were unaccompanied asylum seeking children.
Applicants who continue to qualify for Discretionary Leave should be granted an appropriate
extension or settlement. (See the Asylum Instruction on Discretionary Leavefor details of the
appropriate period to grant.)
Applicants who do not qualify for Discretionary Leave (or leave on any other basis) should be
refused further leave and advised of the reasons why they no longer qualify for Discretionary
Leave. This should indicate that, subject to the outcome of any in-country appeal, they will be
expected to leave the UK. Should they fail to do so, they will be liable to enforcement action.

[gentle_man317]

No. You can leave the UK and if and when you are ready to return you can make an application for a settlement visa under prevailing conditions of the immigration rules.

Ready to return?from Yemen to UK right?and before or after my DL expires?and what application form for settlement visa?