ILR Dependant Refusal Pls Advice.

[Ets]

Hi All,
Please help & advice me on my wife's refusal and what are the future Options available to us.

I Got my ILR in November 2012 under 10 Yrs Long Residency.
I had Tier 1 visa granted until July 2012 and my wife was granted a Tier 1 Dependant until July 2012, which was granted to us in July 2009. My wife entered UK in March 2008 as my dependant in PSW Category and she had not left UK from that time.
We have 2 Kids born in UK and both have got their British Passport after I got my ILR in November 2012.
I applied for my wife in the June 2012 on Set(M) when her visa was about to expire, she got her biometric in oct/Nov 2012.
We got a letter from UKBA in early January 2013 asking us to fill the Income page on her Set (M) application which we did and we also send a copy of my Passport along with BRP and Approval letter.
We got another letter from UKBA in the end of January to send the Cohabitations documents from June 2010-June 2012 along with my Original Passport & BRP card.
We sent all the documents in the 1st week of February as requested and we also mentioned in the covering letter that my kids have been Naturalised and applied for british passport.

Now we have got a reply from UKBA on last Friday and they have refused my wife's application as she doesn't meet the requirements under
sec 287(a)(I), The letter mentions even though she was given extension to stay under sec 287(a)(I)(d) in relevant PBS category. It says she failed to obtain an extension of 2 yrs under Sec 281-286 of the immigration rules for a person Settled and present in UK.
It further states that they have considered the application very carefully and states my wife doesn't even qualify for Right in respect of Family/Private life.
She has been given a right to Appeal. Please advice me on this matter which is very important for my family.

[vinny]

She should have applied for FLR(M) under the transitional provisions.

[Ets]

What has to be done now if you can let know will be very helpful

[vinny]

She may appeal or apply again under the new rules.

When you had applied for ILR under Long residence, didn't you read Guide SET(O)? It clearly specify which application your wife should use:

Long residence in the UK.

The immigration rules for this category do not allow dependants. If you include applications by any depend-ants, they will be refused. Because of this, they should apply separately in their own right in one of the ways described below.

Dependants may apply in the long residence category if they have completed the qualifying period of 10 or 14 years. If you have a partner who does not qualify, they may apply for limited leave to remain as the part-ner of a person present and settled in the UK on form FLR(M). If they do that, they may include any children under 18 who are applying as their dependants.

Partners may also choose to apply on form FLR(M) even if they do qualify in the long residence category, as this option allows children under 18 to apply with them as dependants and the overall cost in terms of fees may be less.

If your only dependants are children under 18 and they do not qualify under the long residence rules, they may apply for indefinite leave to remain as a child of a per-son present and settled in the UK on form SET(F). Each child would have to apply and pay separately. Any child over 18 wanting to apply as your dependant would also have to apply and pay separately on SET(F).

However, it appears to be just a matter of making the wrong application. Perhaps they could have used discretion and granted her limited leave, as if she had made a FLR(M) application? Or asked her to vary her application to FLR(M) before refusing? Perhaps they couldn't because FLR(M) is subject to the English language requirements.

If she appeals, then she will probably fail under the immigration rules. However, given you and her British children, she may qualify under Human Rights.

Or she may make a new application, where EX1 may be applicable.

Also consider getting professional assistance.

[Ets]

Thank you very much Vinny for your reply.
I just wanted to ask as my wife's case stand refused at this moment, and she has few days to file her appeal. I just wanted to ask as you have mentioned to make a new application will that be accepted as her previous leave to remain has ran out in July 2012. Will her new FLR(M) application be accepted & successful if we make apply. And you have mentioned that FLR(M) is subjected to English language requirements can you tell me what will be the English language requirements to make an new application.
Can you please explain this bit a further as well from your previous reply.
Or she may make a new application, where EX1 may be applicable.

Thanks

[vinny]

Do click on the given links for more information.

Her leave is currently "treated as continuing" under Section 3C, while an appeal could be brought or pending.

The success of a future FLR(M) application will depend on whether or not she can now satisfy the current rules.

[vinny]

See also:

Appendix FM family members > Exception.

Chapter 8 - Appendix FM (family members) > Guidance on paragraph EX1 consideration of a child’s best interests under Appendix FM (Family Rules).

[Ets]

Hi All Guru's.
Thanks in Advance for your help & Guidance with my New Query for the same Issue.
I had filed my wife's appeal when it was refused in March 2013 and the hearing date was in Mid of August 2013 but the hearing was called off by UKBA and was assigned a new date of hearing on 03/01/2014. And today we have received the information from the Tribunal that UKBA has withdrawn the appeal and the tribunal has mentioned that the case has been referred to the Case worker for review.Can some please shed light on this as to what will be the possible outcome of my wife's SET(M) application filed in June 2012 as my dependant.

Many Thanks