Wife's application refused. need urgent advice.

[rodelaakash]

Hi

My wife came here in 2011 as my partner when I was on psw visa. Both of our visas were due to expire on 17 Dec 2012. I applied for Indifinite Leave on set (o) application form. My wife applied as my partner on FLR (O) application form according to my lawyer's advice.

I got my ILR on 10 June 2013. But my wife was refused on 25 November 2013. The reason that they stated was although they acknowledged that she is a wife of a settled person, as we have spent most of our life in our country, they don't see any insurmountable obstacle for her to go back to our country.

We appealed both first tier tribunal and upper tier tribunal. But we were refused in both occasions under the same basis. We refused the refusal from the upper tier tribunal for rehearing on 7 June 2014. Now my questions are:

1. Can we make a fresh in country application for her as my dependent on SET (M) application after lodging the appeal to High Court?

2. If we can what documents do we need?

3. If we cann't make a fresh application and we appeal against their decision to High Court what should be our grounds for appeal and how much chance we got to be successful?

4. How many days have we got to lodge the appeal from the day of refusal?

5. If the chance of winning the case in the High court is very slim and she decides to go back, how many days does she have to go back to my country?

Please advise.

[vinny]

FLR(O) seems illogical.

SET(M) will probably fail without first being granted FLR(M) or a spouse visa.

It may be possible to apply for FLR(M) (5 year route) within 28 days from 7 June 2014, after Section 3C lapses.

[rodelaakash]

Hi

Thank you very much for your quick reply. I really appreciate it from the core of my heart.

I am in big problem and my lawyer seems to let me down by advising me to apply for my wife in wrong application form.

Do you suggest me to apply for her in FLR (M) as fresh application straight away or appeal against the current decision to the High court and then make the fresh application?

What documents do I need to apply in FLR (M)?

[rodelaakash]

Hi

Thank you very much for your quick reply. I really appreciate it from the core of my heart.

I am in big problem and my lawyer seems to let me down by advising me to apply for my wife in wrong application form.

Do you suggest me to apply for her in FLR (M) as fresh application straight away or appeal against the current decision to the High court and then make the fresh application?

What documents do I need to apply in FLR (M)?

[rodelaakash]

My wife has been refused from first tier tribunal after applying for extension in FLR (O) application form. The last refusal we received was from upper tier tribunal on 7 June 2014.. Now can I make a fresh application for her in a FLR (M) application form?

If I can should I do it after I lodge the appeal to the High Court or straight away within 28 days of the refusal? Yhank you very much for your great work.

[Obie]

What was the reason for refusal?

Did your wife had a leave to remain prior to making her application.?

[vinny]

If the UT gave you permission to appeal to a higher court, then it's likely that Section 3C continues. Else, Section 3C would have lapsed when your appeal rights are exhausted.

You may make a fresh application only within 28 days after Section 3C lapses.

The documents required for FLR(M) are stated on the form.

[Obie]

If the UT gave you permission to appeal to a higher court, then it's likely that Section 3C continues. Else, Section 3C would have lapsed when your appeal rights are exhausted.

You may make a fresh application only within 28 days after Section 3C lapses.

The documents required for FLR(M) are stated on the form.

How could the upper tribunal have given him permission to appeal to the higher court?

It appears to me, that the Tribunal refused permission to appeal. A refusal of permission to appeal is an excluded decision, therefore he can only pursue a Cart JR.

If he had a substantive hearing, but his appeal was dismissed, however his case raises an important point of principle or practice, or there are other compelling reason for permission to be granted, then section 3(C ) will continue until the court of appeal has decided the case.

There is however no section 3(c) with Cart JR.

[Amber]

If the upper tribunal dismisses your appeal from the FTT, then you can apply to the UT for permission to leave to the Court of Appeal. Time limits are set out in 44 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

[rodelaakash]

What was the reason for refusal?

Did your wife had a leave to remain prior to making her application.?

My wife came here in April 2011 when she was about 23 years old. She made her application in Dec 2012. So they are saying as she has spent 23 years of her life in Bangladesh they don't see any insurmountable obstacle for her to go back. We can still maintain our relationship while she goes back to Bangladesh. Also now I think the reason for the refusal could be she applied on FLR (O) form which was supposed to be FLR (M).

[Obie]

What you are talking about is proportionality.
Which requirement of the rules did the tribunal say your wife did not meet, that resulted in them concluding that it is proportionate for you to return and settle in Bangladesh.

Did you have a hearing at the Upper Tribunal, which was subsequently dismissed, or you were not given permission to appeal to them?

[rodelaakash]

If the UT gave you permission to appeal to a higher court, then it's likely that Section 3C continues. Else, Section 3C would have lapsed when your appeal rights are exhausted.

You may make a fresh application only within 28 days after Section 3C lapses.

The documents required for FLR(M) are stated on the form.

Nothing was mentioned about the appeal in the refusal letter. So we just thought that our appeal rights are exhausted.

Do you think I can still appeal against the decision to high court? Should I lodge the appeal before applying for her in FLR (M) form? How do I lodge the appeal?

Sorry I am asking so many questions as my lawyer has let me down. He made my wife's application on FLR (O) form which was wrong and now he is saying my wife has to go back.

[Obie]

Did you have a hearing at the Upper Tribunal, or was permission refused, to appeal to the upper Tribunal.

[rodelaakash]

What you are talking about is proportionality.
Which requirement of the rules did the tribunal say your wife did not meet, that resulted in them concluding that it is proportionate for you to return and settle in Bangladesh.

Did you have a hearing at the Upper Tribunal, which was subsequently dismissed, or you were not given permission to appeal to them?

They didn't mention about any requirement that she did not meet. They are saying you don't have any children here, you have most of your family in Bangladesh, your husband has spent most of his life in his country so there is no insurmountable obstacle for you to return to my country.

I have received the refusal from the upper tribunal for rehearing. The actual hearing did not take place. I will write the exact thing that is mentioned in the refusal letter so you can understand.

"I do not consider tbat in addressing insurmountable obstacle the judge was doing anything different from the Court of Appeal in MF (Nigeria) or the tribunal I Ogundimu. Essentially and correctly the judge focused on the need to show difficulties beyond the level of mere hardship.

The judge did not fail to apply Chikwamba principles. The latter are intended to be applied in a fact sensitive way and in any event in the context of the case the judge was satisfied that the decision under appeal was proportionate irrespective of the avenue for further application from abroad.

In Article 8 jurisprudence the concept of precariousness encompasses both those without leave to remain and those whose leave is impermanent. The judge did not err in his use of that concept in this case."

[rodelaakash]

If the upper tribunal dismisses your appeal from the FTT, then you can apply to the UT for permission to leave to the Court of Appeal. Time limits are set out in 44 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Can I make a fresh application on FLR ( M ) application form? While I seek permission to leave to the Court of Appeal?

[Obie]

I dont think you can appeal to the court of appeal. It seems to me, that after the first tier tribunal dismissed your appeal, you applied for permission to appeal, and this was refused.

You cannot therefore appeal to the court of appeal. You can only apply to the high court for permission to Judicial review the Upper Tribunal refusal of permission to appeal.

Did your wife have a leave before the refusal.

If she does, and provided you meet the financial and accommodation requirement, you should apply before 28 days.

[rodelaakash]

I dont think you can appeal to the court of appeal. It seems to me, that after the first tier tribunal dismissed your appeal, you applied for permission to appeal, and this was refused.

You cannot therefore appeal to the court of appeal. You can only apply to the high court for permission to Judicial review the Upper Tribunal refusal of permission to appeal.

Did your wife have a leave before the refusal.

If she does, and provided you meet the financial and accommodation requirement, you should apply before 28 days.

Thank you very much for your reply. She had visa when she applied for extension on 14 December 2012. Since then we got the first refusal on 25 November 2013. We appealed first tier tribunal and upper tier tribunal. The final refusal we got was for rehearing to upper tier tribunal on 7 June 2014.

[Obie]

I believe the advise you received has been extremely poor.

It appear to me, that your wife applied for Leave at a time when you were not settled. So they would have refused.

Your lawyer should have varied the application once you had secured ILR and use form FLR(M).

However when you appealed, the judge ought to have engaged Appendix FM, and state what requirement you failed to meet, before dealing with proportionality.

You are entitled to raise appendix FM and section 85(3) allow you to raise those grounds at the tribunal.

Some thing went terrible wrong somewhere. I am not exactly sure what your rep was thinking or doing.

[rodelaakash]

I believe the advise you received has been extremely poor.

It appear to me, that your wife applied for Leave at a time when you were not settled. So they would have refused.

Your lawyer should have varied the application once you had secured ILR and use form FLR(M).

However when you appealed, the judge ought to have engaged Appendix FM, and state what requirement you failed to meet, before dealing with proportionality.

You are entitled to raise appendix FM and section 85(3) allow you to raise those grounds at the tribunal.

Some thing went terrible wrong somewhere. I am not exactly sure what your rep was thinking or doing.

Thanks again. So should I raise appendix FM and Section 85 ( 3 ) when I appeal to the High Court for judicial review? Should I make the fresh application after I lodge the appeal to high court?

[Obie]

Perhaps I am a bit too technical. I dont think you have a grasp of the advise I gave you, perhaps you should seek a competent adviser to assess the merit of your case.

There is no section 3C right. Your wife should apply within 28 days or she will be considered as an overstayer. I hope you earn up to 18600 annually.

[rodelaakash]

Perhaps I am a bit too technical. I dont think you have a grasp of the advise I gave you, perhaps you should seek a competent adviser to assess the merit of your case.

There is no section 3C right. Your wife should apply within 28 days or she will be considered as an overstayer. I hope you earn up to 18600 annually.

The problem is to find a competent advisor. I thought my lawyer was very much competent. Anyway I earn that amount annually. I will lodge the appeal for Judicial review in High court and apply for her in FLR ( M ) application in 28 days.

Can I use premium service ( sameday service) for this application?

[Amber]

Judicial review is to decide whether or not the public body, in this case Home Office acted ultra vires, outside the scope of their powers. You made an incorrect application, if your advisor failed to amend that at any given point the application rightly failed. Judicial review for a grant of private life leave would be immaterial for you. Moreover, at the tribunal your advisor should have asked for consideration of FLR(M) under Part 8 of the immigration rules, due to transitional protection at that point. We've sadly seen this on numerous occasions on here.

A claim for FLR(M) should be made, A1 English and Financial Requirement.

[Obie]

I think I figured what happened.

When they made the FLR (O) application the guy's visa was on the verge of expiring and the same was the case for the wife.

There is therefore no way FLR(M) would have been appropriate, as the spouse was not present and settled , or a British at the time of the application.

Then his application was approved in June. I believe the UKBA was expecting a competent adviser to Vary the application, by filing FLR(M) and sending his passport showing she was the spouse of a person present and settled. They gave them 5 months to do this, which is an awful long time by UKBA's standard, but this was not done.

Now the lawyer had a second bite of the cherry, by raising these issues on appeal, provided of course the wife met all the conditions in Appendix FM, but it appears this was not done. It appears that both application and appeal was not advanced on the basis that the applicants sponsor was now present and settled. It is understandable at time of application, but they had a significantly long period between June and November and appeal to put things right.

[Amber]

Even though the long residence applicant had not been settled, the PBS dep could have applied for FLR(M) by post asking for the application to be placed on hold until the long residence applicant (the spouse) had been granted ILR. This is the normal procedure and would have avoided any problems. An FLR(O) application was erroneous and even more so since it was never varied. This has happened numerous times (a lot) with so-called competent advisors/solicitors.

[rodelaakash]

I think I figured what happened.

When they made the FLR (O) application the guy's visa was on the verge of expiring and the same was the case for the wife.

There is therefore no way FLR(M) would have been appropriate, as the spouse was not present and settled , or a British at the time of the application.

Then his application was approved in June. I believe the UKBA was expecting a competent adviser to Vary the application, by filing FLR(M) and sending his passport showing she was the spouse of a person present and settled. They gave them 5 months to do this, which is an awful long time by UKBA's standard, but this was not done.

Now the lawyer had a second bite of the cherry, by raising these issues on appeal, provided of course the wife met all the conditions in Appendix FM, but it appears this was not done. It appears that both application and appeal was not advanced on the basis that the applicants sponsor was now present and settled. It is understandable at time of application, but they had a significantly long period between June and November and appeal to put things right.

I know now one of my friend who was in the same situation as mine. He applied on SET(O) and FLR (M) for his wife accompanied with a cover letter requesting the Home Office to consider her application after his application was considered. Both of their application were successful.