ILR as partner REFUSED again!

[qiuyifan2000]

Just applied in person for my husband’ settlement after 5 years on spouse visa but wasn’t granted settlement due to financial requirements not met.

Our situation:
My husband (applicant) has been working with same employer for the past 3 years earning above £18,600. But he recently got redundant and is still looking for jobs. I was house-wife for many years but recently started to work soon after he lost his job. My salary also exceeds £18,600 but have not been working more than 6 months. We applied ILR under Category B, my annual salary meets Part 1 condition, and our combined employment income in the past 12 months exceeds £18,600 thus Part 2 condition met.

However, the case worker said I cannot use my husbands past income to satisfy Part 2 in Category B because he is now not working and they only consider one person at a time. Which means, they only looks at the past income of that person who is still in employment but hasn’t been with the same employee for long enough. As my husband is now not in employment, whatever he earned in the past is not relavent and cannot be included!!

I just feel it is so unfair to us. The guidance didn’t say we can’t do that and in the second paragraph of section 5.3.9 it says “The gross amount of salaried or non-salaried employment income of the applicant’s partner (in the UK or overseas) AND/OR the applicant (if they are in the UK with permission to work)”.

Home Office intodued this finincial requirements to ensure people can earn enough to maintain themselves without access to public funds. We have been and are still earning more than required level. But just because we switched work between ourselves, which is very normal, now we are sucked!!

Please advise!!

[vinny]

See also similar case (redundancy).

[S3TM]

When did you apply?

Can you appeal?

[qiuyifan2000]

See also similar case.

Hi. My husband is actually running his own business but hasn’t paid himself officially. As we thought he had met the requirements we didn’t include such information in the application. Can we still submit such information at this stage?

[qiuyifan2000]

See also similar case.

Hi. My husband is actually running his own business but hasn’t paid himself officially. As we thought he had met the requirements we didn’t include such information in the application. Can we still submit such information at this stage?

Forgot to mention his case is still pending as they offered him extension and is still waiting for his £500 NHS payment.

[vinny]

Which means, they only looks at the past income of that person who is still in employment but hasn’t been with the same employee for long enough. As my husband is now not in employment, whatever he earned in the past is not relavent and cannot be included!!

Appendix FM-SE is very complex. 13

...Where the person is in salaried employment in the UK at the date of application...

seems to be the problem here.

Hi. My husband is actually running his own business but hasn’t paid himself officially. As we thought he had met the requirements we didn’t include such information in the application. Can we still submit such information at this stage?

You have to read the Appendix carefully to see what’s acceptable. Do you have any cash savings for the preceding six months?

[qiuyifan2000]

Hi. My husband is actually running his own business but hasn’t paid himself officially. As we thought he had met the requirements we didn’t include such information in the application. Can we still submit such information at this stage?

Appendix FM-SE is very complex. You have to read it carefully to see what’s acceptable. Do you have any cash savings for the preceding six months?

No. We just bought a house and used up all our cash savings. The case worker has looked at all possible options for us on the day when we were at the premium centre. So on what grounds would he be able to give my husband extension?

[vinny]

Perhaps the observations (34, 35) also applies?

[qiuyifan2000]

My husband was granted 2.5 year limited leave to remain as unmarried partner on 16 October 2013. He was granted another 2.5 year in 2016.

On 16 October 2018, he applied for ILR under partner route and got refused due to financial requirements not met, and then was given 30 months leave to remain for family life.

Last week, after being able to meet the financial requirements, he applied for ILR again, and we just received the decision letter today saying he is NOT eligible for ILR because he was only granted 30 months leave to remain for family life which requires 120 months for ILR!

How stupid it is!!In the beginning of the letter, the officer already outlined my husband’s visa history, he should have know that my husband has already completed 5 years of residence as Partner by 16 October 2018!

What can we do now!? How can we appeal this decision? There is no information on the letter telling us how to appeal!

The letter is also asking him to pay another £1000 NHS surcharge in 10 days in exchange for 30 month limited leave to remain! Come on, we still have another 2 years visa in hand, why do we need to do that? Is our current visa still valid after this application, if we don’t pay for the ridiculous NHS surcharge?! We paid £3100 for super priority service and this is the level of service they provided!! How annoying it is!

[CR001]

As he was put on the FLR(FP) 10 year route, he doesn't qualify for ILR now. He will need either 10 years of any visa stay to qualify for ILR based on long residence on SET(LR) form OR 10 years on FLR(FP) route for ILR on Set(M).

He can again switch to the FLR(M) route, but this will likely reset his 5 year clock again too.

[qiuyifan2000]

Hi. I don’t understand, to qualify for ILR as partner, does he has to have a valid visa as partner? I can’t see any rules saying so! As long has he has completed the 5 year period as partner, he can apply for ILR anytime once he meets all the requirements, no matter what visa he is holding at the moment!

When last time he was given the leave to remain for family life, the case worker told he to come back in a few months time for ILR, when he meets the financial requirements.

[CR001]

Hi. I don’t understand, to qualify for ILR as partner, does he has to have a valid visa as partner? I can’t see any rules saying so! As long has he has completed the 5 year period as partner, he can apply for ILR anytime once he meets all the requirements, no matter what visa he is holding at the moment!

He failed to meet the ILR requirements on form SET(M) last year due to not meeting the financial requirement. HO could have refused outright with NO option for further leave to remain but as he didn't meet the income requirement, he was offered and put on the FLR(FP) 10 year Partner route, which requires 120 months (4 x 2.5 year visas) before he can apply for ILR.

Private Life is a 10 year route and he needs 10 year in this category to qualify for ILR.

https://www.gov.uk/government/publicati ... form-flrfp

private life in the UK (10 year route)

[qiuyifan2000]

Hi. What I still don’t understand is that, why once he is put under the 10 year route, he is not qualify for ILR as partner, though he has already completed his 5 years period as partner and meet all other requirements for leave to remain as partner? Could you give a definite immigration rule saying “you have to be holding a valid partner visa when you apply for ILR as partner”?

[CR001]

What did the letter state last year when they gave him further leave to remain?

[qiuyifan2000]

Thank you very much for your patience!

I can find out the letter issued last year later, but I don’t think it said anything that would prevent us applying for ILR today.

The case worker had a conversation with my husband las year, told me that he wasn’t eligible for ILR at that time because he lost his job and I had only started a new job 4 months ago. So he asked him to come back once I have been in my job for 6 months.

We waited till now, longer than 2 months, because we were busy. Now the system has changed we could not use Premium Servce again to see the same caseworker.

[qiuyifan2000]

How to attach an image?

The decision letter last year said:

I am writing to inform you that you have been granted a period of 30 months limited leave to remain on the ten year partner route under paragraphs D-LTRP1.2. of Appendix FM to the immigration Rules, as we are satisfied that you meet the requirements of paragraphs R-LTRP 1.1.(a),(b) and (d) of these rules. You may be eligible to apply for settlement after completing at least 10 years under this route.

[CR001]

So he has been switched to the 10 year route as he didn't meet the requirements under the flr m/set m.

He has to wait unfortunately or switch back to the 5 year route from scratch again.

Note that once he has 10 years residence on any and all visas, he can apply for ILR anyway on form Set LR.

[qiuyifan2000]

So why did the caseworker last year asked him to come back in 2 months time as soon as I have been in employment for 6 months?

[qiuyifan2000]

What can I do now? Do we have to pay for the additional NHS surcharge? If we don’t pay for the surcharge will it invalidate my husband’s current visa which has still got 2 years to go? He will be eligible for 10 year residency in 3 months time.

[bluebird12]

Not paying IHS surcharge should not invalidate your existing remaining 2 years LTR but obviously your ILR will be refused again as everyone has told you.

As you are aware now you can apply ILR on 10 years lawful long residency basis but remember some visitor visa etc might not count in 10 years residency so make sure after 3 months when you apply ILR again you do know that you meet all requirements and it is also a best thing to see a competent immigration advisor for consultation as well before you apply ILR as it could save you lot of money and time. Immigration rules are very complex and not every person know each and everything about them... good luck for you and I hope you get ILR this time ..

[qiuyifan2000]

Thank you! So basically we were just so “lucky” that were told wrong things by a caseworker last time!! Otherwise we could have just waited for another 3 months! £3100 waisted by that “luck”!

[qiuyifan2000]

At the moment the letter only gave us the option to extend 30 months under 10 year route. To my understanding, the previous 5 years time spent under the 5-year route cannot be added into the 10-year route, which means we still have nearly 10 years to go before settling under the 10-year route?

Can we ask the caseworker to switch to 5-year route again? As we have met all the 5-year requirements. Just to be on a safe side that if our 10-year residency application in 3 months time goes wrong somehow, we still have the option to settle after 5 years rather then 10 years!

[Casa]

At the moment the letter only gave us the option to extend 30 months under 10 year route. To my understanding, the previous 5 years time spent under the 5-year route cannot be added into the 10-year route, which means we still have nearly 10 years to go before settling under the 10-year route?

Can we ask the caseworker to switch to 5-year route again? As we have met all the 5-year requirements. Just to be on a safe side that if our 10-year residency application in 3 months time goes wrong somehow, we still have the option to settle after 5 years rather then 10 years!

All legal residence qualifies for ILR under long residence.

[qiuyifan2000]

Found the following wordings on page 58 of Appendix FM Section 1.0a, published on 19 December 2018:

“If the applicant has already completed 60 or 120 months in the UK with limited leave as a partner, they should be informed that, should the reason they do not meet the requirements for indefinite leave to remain be overcome, they will be eligible to make a further charged application for indefinite leave to remain at any time within the 30 month period of leave granted under paragraph D-LTRP.1.2. or D-ILRP.1.2. They do not need to wait until their leave expires if they become able to meet all the requirements. If not, they should make their next application no more than 28 days before their leave is due to expire, or within 28 days of completing the period of leave in the UK required for them to be eligible to apply for indefinite leave to remain.”

https://assets.publishing.service.gov.u ... pdf#page20

What would you think?

[bluebird12]

These above mentioned paragraphs do not apply to your circumstances as these are relevant if someone have not passed English language and life in the Uk Test etc But you were refused ILR correctly due to not meeting financial requirements and has been issued LTR on 10 years route.

Your best option at the moment to apply ILR on 10 years legal stay basis if you do meet all requirements.