Discretionary Leave - Can ILR be applied for, which form?

[Frankie7]

Hi There All

Brilliant work going on here.

Situation, Im a UK citizen, fiance joined me in UK from Pakistan in March 2009. Application was straight forward.

Registered marriage in July 2009.
initial 6 month Spouse visa was to September 2009 (no public funds stiuplated, non claimed).
Applied for extension on form FLR(M) and 2 year extension granted to Oct 2011 (no public funds stiuplated, non claimed).

She started ESOl course in September 2011 (eraliest she could get onto an established one) and the exam was in December 2011, so she was short of the English language qualification at the point of application so we requested extended stay on FLR(M).
She passed her ESOL Test in Dec 2011, which has a validity of two years.

She was given Discretionary Leave to remain til November 2014, outside of the rules. becuase she had not met the English language requirement and was assessed on Human rights act and that she had made an in time application, shown documentation that relationship is subsiting and financed without public funds. On the BRP in the passport it states 'limited leave to remain'and the accompanying letter conditions states she if free to take a job and there is no mention about restriction of Public funds or in the BRP.

We had son in July 2012, for which the application for Child Benefit is in my Wife's name and is paid into my bank acocount. We dont claim any other benefits at all.

To make use of the English qualification before it expires is she able to apply for ILR seeing as she has been in UK since 2009 and completed at 2 years - twice. Even if she had come in the UK in 2011 it would now be time to apply for her ILR?? - If so what form do we use?

Or does she have to wait until Nov 2014 and even so then which form to we use?
Thanks
Frankie.

[Amber]

Usually one on DLR has to wait 6 years (two 3 year DLR) however, follow this thread as earlier ILR may be possible.

[Frankie7]

Hi Amber.

Thanks, that is just exactly my wife's case - The Notice of Decision is 'Variation of Leave or Refusal to Vary Leave' and states the application has been refused. But discretionary leave granted and no right to appeal.

I recall notes at the time, i think in SET M saying if you needed more time to pass the english requiremnet or more time on your relationship and dint want ILR then to apply using FLR (M) which is what she did. Thinking it would be just a question or reappying for ILR when all her things were in order ie the the English test.

Can it be clarified if she is ok to receive child benefit for our son as there is no restriction on the BRP or the letters that came with it on public funds. I just put it in het name as the mother, otherise there was no reason why I couldnt have claimed in. I /We are not entitled or claiming anything else.

thanks
Frankie.

[Frankie7]

Came across this to answer my own question but would also prefer someone here of knowldge of DLR or under DLR and has claimed benefits no problem.

I hope the child benefit point will be a sticking point for her - could have so easily pyt my name down and wish I had done now.

Still it doesnt say anything about public fund recourse whatsoever on the BRP, unlike the previous one.

http://www.rightsnet.org.uk/forums/viewthread/3035/

.

[Amber]

Under the old (pre July 2012) DLR you can claim public funds with no adverse affect.

[Frankie7]

Thank God for that !!!

So what happend after 2012, does it state no public funds on DLRs?

thanks again.

[Amber]

After July 2012 there is no DLR but rather family life leave, a 10 year route to settlement with no recourse to public funds, unless, for an exception.

[Frankie7]

thanks again - reading the above and the link to the other post has given me lots of hope.

Frankie

[Frankie7]

Ok - been doing a lot of reading all evening online and came across this (text below) and want to know if this is applicable to my wife and it it will negate all discussed before?


[April 2013 Immigration Directorate Instructions
Section Contents
Chapter 8 – Family Members
Section 1- Spouses

This guidance applies to:
- Applications made before 9 July 2012 which were not decided before that date
- Applications made by persons who were granted entry clearance or limited leave to remain under Part 8 of the Rules before 9 July 2012 and that leave is still extant where this is a requirement of Part 8
- Applications made by spouses of full-time members of HM forces
- Applications made on or after 9 July 2012 by a spouse who was given leave to enter for a period of up to 27 months because he or she did not meet the Knowledge of Life requirement and had not applied for ILR before that date.
Any other applications made after 9 July 2012 should be considered under the partner guidance:


3.1. Key points
Switching into the route
On 1 October 2004, Command Paper 6339 introduced a requirement preventing switching into the marriage category by a person who only has leave which was granted outside the Immigration Rules. Grants of discretionary leave are outside the Immigration Rules. Therefore 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 into leave to remain on the basis of that relationship. Provided the relationship continues to exist they can seek to remain in the UK until they have completed 6 years‟ discretionary leave (in 2 periods of 3 years‟ stay) and then apply for settlement. Or, at a time of their choosing, they can leave the United Kingdom and apply for entry clearance from abroad.]



Just trying to get my head around that, (it's late !), does that not apply to me/wife case as she had limited leave to remain as aspouse by marriage and then got discretionary leave - whereas this is talking about (hopefully) someone who has Discretionary leave only and wants to switch into marriage?

thanks
Frankie

[Amber]

I believe your interpretation is correct. Moreover., I can't seem to locate the statement of changes they're referring to in the guidance.

[Frankie7]

Last question hopefully - before I actually apply for wife using form SET(M).

Just want to check on the various paragraphs.

On the Notice of Decision it states:
Variation of Leave or Refusal to Vary Leave Paragraph 286 with reference to 284(ix)(a) of HC 395 (as amended)

and in the details it states 'Further more the Secretary of State is not satisfied that you meet any of the other requirements of paragraph 284(ix) HC 385'. However your application has been assessed under te statutes of the human rights act.

These are the only references listed.


On then Form SET(M) it states :
If your last grant of leave was not issued under Paragraph 281, 284, 295A or 295D under Part 8 of the Immigration Rules you MUST NOT apply using this form. If you have not had leave under one of these categories and apply using this form you will be refused indefinite leave to remain under the Immigration Rules.

So seeing as after her 6month fiance period, she had 2 years limited leave to remain via FLR(M) as a spouse, then applied again for 2 years on FLR(M)(due to ESOL delay) but got 3 years Discretionary leave instead.

Can someone please help me match up the paragraphs to understamd if form SET(M) is the correct one or other?

many thanks Frankie.

[vinny]

There is a risk.

[Amber]

You take a risk in applying for SET(M) as the other user is, if you can afford to potentially lose the fee then it's really up to you.

[Frankie7]

so is basically the SET(M) form telling me not be apply on it?

Also im surprised that there isn't a confirmed case already done of what Naveen and my wife's poistion is, would have thought it would be a common issue.

thanks again. both.

frankie.

[Amber]

You need to find out if an immigration rule specifically prohibits it. It really doesn't matter if the guidance does as the rules outweigh guidance.

[Frankie7]

Thanks Amber.

also I have found this on web:

'The 'no switching' rule came in on HC 538:

People who are in the UK as visitors or students for less than 6 months cannot switch to married status (they have to leave and apply for a marriage visa to return). This does not apply to unmarried partners [Para 14 of the new rules specifically inserts this requirement into para 284 (spouses) of the existing rules, but NOT into para 295D (unmarried partners)].


Quote from the the November 2008 IDI on spouses:

Quote
3.1. Key points
As stated above all of the relevant provisions must be referred to when considering applications for leave to remain in this category, but in general caseworkers need to be satisfied that:
-
the applicant has limited leave to remain in the United Kingdom in accordance with the Immigration Rules, other than limited leave to enter for 6 months or less (unless the leave in question is limited leave to enter as a fiancé(e), in which case 6 months is acceptable) and has contracted a valid marriage, which is recognised in this country, to a person who is present and settled here;
-
the marriage is subsisting and that the couple intend living together permanently as husband and wife.

The "no switching" into marriage provision prevents those given limited leave to enter the United Kingdom for 6 months or less, e.g. visitors and short term students, from switching into the marriage category. It does not apply to those given leave to enter the United Kingdom for 6 months as a fiancé(e). Neither does it apply to those who have been granted an extension of stay in the United Kingdom of six months or less at the end of their initial period of leave.

On 1 October 2004, Command Paper 6339 introduced a requirement preventing switching into the marriage category by a person who only has leave which was granted outside the Immigration Rules. Grants of discretionary leave are outside the Immigration Rules. Therefore 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 into leave to remain on the basis of that relationship. Provided the relationship continues to exist they can seek to remain in the UK until they have completed 6 years’ discretionary leave (in 2 periods of 3 years’ stay) and then apply for settlement. Or, at a time of their choosing, they can leave the United Kingdom and apply for entry clearance from abroad.

Where an application is made out-of-time or is submitted by an illegal entrant, refer to local instructions for advice.'


Again I hope my wife falls out of this switching case as he was an unmarried partner with initial 6months leave and not a visitor.

[Amber]

I'd you actually find the statement of changes that it's referring to?

[Frankie7]

Hi Amber,

is this the document that you could not locate earlier?

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

there is some refernece to paragraph 287 on the last but one page.

thx
F

[Amber]

I saw that, but it didn't say what is in the guidance, did it? Therefore, the rules outweigh the guidance.

[Frankie7]

thankyou for your patience, i don't even know what I am asking anymore, too much stuff going around in my head and the anxiety and trying to work too.

Bottom line i'm going to apply by end of this week on Set M for wife, worst case scenario I lose £1000.

[Amber]

As long as you understand that then that's fine. I would include a detailed cover letter as per the other user explaining that you have completed the 2 years as required by law and that SET(M) does not require extant leave.

[Frankie7]

yes I have made quite a few notes thanks to you guys and will be doing a detailed letter this week. The money doesn't bother me, it's the principle.

[Amber]

I'll see if I can get a response from the settlement policy team for you to see how they would treat such an application.

[Frankie7]

oh ok, that's great. thanks

[Amber]

You should have no issue with the application.

Dear Sir/Madam,

Thank you for your email query which has been passed to myself to deal with.

I can confirm that if a person has completed 2 years as the spouse of a settled person, and they met all of the requirements of the settlement rules other than having KoLL, then they would have been granted discretionary leave prior to 9 July 2012.

I can also confirm that where a person has only been granted discretionary leave because they did not have KoLL, once this person has gained KoLL and can still meet all the other requirements of the rules, they will be eligible to re-apply for settlement as the spouse of a settled person should they wish.

I trust this clarifies the position.

Kind Regards,

Karen.

Karen Joynt | Family Migration Operational Policy | Immigration and Border Policy Directorate | Home Office