Discretionary leave extension, application not considered!

[ginoT]

sorry I've been away so long! hope you are all well. So I'm back with more problems since my last major post

my wife's request to extend her Discretionary Leave visa was not accepted/not considered: the reasons given were that the application was seen as invalid due to the following:

1 - You submitted an HPDL application form, which is used following the refusal of asylum (she was granted DL as my spouse, I'm a UK national)

2 - the appropriate fee must be paid.

ok, to start with no fee is required for DL so not sure how to answer that. For the first reason not sure what other form we can apply on. Their own website says that the HPDL form should be used if you want to extend your discretionary leave visa which is exactly what we want to do!

what should we do?

ps: she can't switch to a spouse visa in-country on DL and she can't apply for IDL until she's completed a 6 year stint on DL (she's just finished her first 3years, thus the request to extend for another 3 years)

[geriatrix]

FLR(O) is the form to use to apply for discretionary leave in your wife's case.

Form HDPL starts with the following statement:

Application for an extension of stay in the United Kingdom or settlement in accordance with the Home Office policies on Humanitarian Protection or Discretionary Leave by a person who, following refusal of asylum, was granted one of the following:
• Less than four years Exceptional Leave • Humanitarian Protection •
Discretionary Leave

Haven't read your long (linked) post but I don't think your wife has ever applied for leave under Humanitarian Protection or claimed asylum.

What is the expiry date of DL issued to her?

[ginoT]

thanks. Did see FLR(O) but wouldn't she be switching in that case? The Immigration Directorate Instructions 2011 says switching isn't allowed into the marriage category:

those persons granted discretionary leave who apply on or after 1 October 2004 on the basis of a marriage, or the establishment of a partnership with someone present and settled here, cannot seek to switch

she was granted DL on the basis of a marriage. In the home office letter she received at the time she got the DL they explained that at the end of the first 3years she could request an extension for another 3 years at which point she would able to apply for IDL

last off, the updated updated 2012 IMMIGRATION DIRECTORATE INSTRUCTIONS FAMILY MEMBERS – TRANSITIONAL ARRANGEMENTS 6.7.12, section 2.2, a request for an extension of 3 year Discretionary Leave to bring to a total of 6 years is acceptable. No other suggestion is made for those on Discretionary Leave given for family members:

2.2 Individuals 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 to be dealt with under that policy through to settlement if they qualify for it (normally after accruing six years of 3 Discretionary Leave unless Discretionary Leave has been granted because the individual is excluded from a grant of asylum or humanitarian protection, in which case 10 years leave is usually required), subject to the individual meeting the new criminality thresholds as set out in Appendix FM (paragraphs S-EC and SLTR).

I understand what you're saying about DL being for asylum (which doesn't fit with her) but that was the case when then issued her DL 3 years ago & that didn't stop them issuing it.

[geriatrix]

Your wife was granted DL when she applied for FLR(M) .. on the basis of her marriage to you but failing to meet the specified immigration requirements (e.g. - in time application). It was a policy then to grant DL instead when FLR(M) application failed to meet the specified immigration requirements but there were grounds to apply discretion. (e.g. - Articles 8, as in your wife's case).

Had the intention been (of anyone) to apply for DL in the first place at the time (knowing that one does not meet the immigration requirements but may be granted leave under discretion), one would have used FLR(O) form only.

Other purposes/reasons not covered by other application forms

is what she was supposed to apply under, and the form to be used is FLR(O).

Form HPDL is only meant for the two categories, as is clearly mentioned on the form itself.
HPDL stands for "Humanitarian Protection Discretionary Leave". Not meant to be used for applying for discretionary leave under some other circumstances.

[ginoT]

ok I get where you're coming from, but do you understand my point?

She's on DL already. HPDL is to be used to extend an existing DL visa. UKBA's own Immigration Directorate Instructions say that DL can be used for family members excluding cases where it applies to asylum or humanitarian protection.

And even if I ignore my points above, and go with FLR(O) it does explain to me the validity of the original DL visa that was granted (in the sense that she wasn't seeking asylum or humanitarian protection). So are you saying the first DL was issued incorrectly?

And there's my switching comment..

We can't afford to talk to up here coz her visa ran out last week (while the HPDL application was being considered) and now we're in that 28 days period of grace thing.. So we need to 100% sure of what we're doing

[ginoT]

hmmm - think I'm beginning to understand you. are you saying that FLR(O) gives you a DL visa?

and how can I be sure that FLR(O) isn't classed as switching?

[ginoT]

ok just to complicate matters, it seems that we need to reference Discretionary Leave rules before 9 July 2012 as this would applicable to us. So the current website guidance is not applicable.

The FLR(O) has a nice fee attached to it. Having spent a ton of money so far I'm loathe to give UKBA anymore than necessary of my hard earned cash especially when their own policy isn't clear cut

[geriatrix]

The FLR(O) and SET(O) forms specifically allow for applications for purposes not covered by any other application form, whether specified or not. This means all applications for leave outside the rules, including discretionary leave on the grounds of non-protection based claims under Article 3 or claims made on the basis of Article 8 of the European Convention on Human Rights, should be made on one of those forms.

FLR(O) for limited leave to remain (extension).
SET(O) for indefinite leave to remain (settlement).

[k_alibaba]

My family been granted 3 years Discretionary Leave in 2010 in appeal (son Article 3 and family in Article 8 )
How can I apply for extension on flr o?
What documents to send in support ?

I will be very grateful for your help and advice.
Thanks

[vinny]

1. Probably safest for wife and daughter to remain on DL for at least six years. Extend using FLR(O).

2. When eligible for ILR use SET(O).

3. No.

[Amber]

Also remember that your wife is entitled to public funds too under the old DLR. I assume DLA has been claimed for the child and CA for the Mother if she's not working? Also, child benefit and tax credits (with additional amounts for disability).

[k_alibaba]

Also remember that your wife is entitled to public funds too under the old DLR. I assume DLA has been claimed for the child and CA for the Mother if she's not working? Also, child benefit and tax credits (with additional amounts for disability).

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Thanks Amber and Vinny.
Yes we don't have any restrictions for using public funds but we rather kept it to minimal level.

She used to get DLA for my son and child Benefits until I got my ILR.
But after my ILR I transferred these benefits on my name and my son is British National now.
We didn't applied for tax credits or any income based benefits also we both work.
The confusion in my mind is, if because of me and my son's settlement will make any variation in my wife n daughter's DL extension.

[Amber]

She should be granted a further 3 years. You should claim all the benefits you are entitled to claim.

[k_alibaba]

She should be granted a further 3 years. You should claim all the benefits you are entitled to claim.

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Thanks