Set M-ILR - Appendix FM 5-year partner route (Super Priority Sevice)

[kixxo]

I applied for ILR on 29th June 2024 using using the super priority service. I did my Biometrics today 5th July 2024 at am. At about 1pm today i got email from the UKVI saying

Your application has been rejected as invalid and will not be considered.
The reasons for this decision are:
You currently have not accrued 5 years continuous leave under the Appendix FM 5-year route. You have extant leave until 10th August 2024.
Refund of Fees If you have paid an application fee you will receive a refund, minus a £25 admin fee, for each person included in the application.

However i am a bit confused at the decision as i was first granted leave to remain under the family route 2nd July 2019 and my eligibility to apply for ILR is 2nd July 2024 (Taking into consideration i have not spent anytime outside the UK in this period)

To my understanding i can apply for the ILR 28 days before my 5 years eligibility which is 2nd July 2024 and exactly what i have done.

Please any advise how i can proceed with this as i don't want to be paying another super priority fees and biometrics fees as i believe i have done the right thing, also please advise if i have the wrong understanding

[CR001]

What is your exact immigration history and visas granted, ie flr fp parent, flr fp partner, flr m, flr private life.

There are many routes but have different rules and they can't be combined to make 5 years for ilr.

What was your immigrartion status before your were granted leave to remain in 2019?

[kixxo]

Hi, I was first on a study visa which was then switched to spouse Visa 2nd July 2019 FLR M (Partner Route)

I have only been on this route since it was granted 2nd July 2019 and expired 02/01/2022 and renewed 14/01/2022 which is due to expire 10/08/2024.

Before the spouse route i was on study visa from when i moved to the UK Sep 2012 to July 2019.

Let me know if you require any more specific details

[kixxo]

I renewed in 2022 under same partner route.

[zimba]

The most common reason I have seen for an application to be rejected as invalid is when the applicants either selected an incorrect route when applying on the ILR form or applied using a totally incorrect form.

Are you sure you are under the 5-year partner route ?
Do you have your previous decision letters?

You do satisfy the lawful residence requirement for ILR under the 5-year route and even if you did not, failing to satisfy such requirement leads to a refusal and not rejection (refusal and rejected as invalid are NOT the same things).

The validity requirements are defined here: https://assets.publishing.service.gov.u ... ations.pdf

[kixxo]

I am 100% under the 5 year partner route and i have both decision letters from 2nd july 2019 and 14th jan 2022.

Am very confused at the caseworkers calculation or understanding of my eligibility to apply for ILR under SET M

[zimba]

I am 100% under the 5 year partner route and i have both decision letters from 2nd july 2019 and 14th jan 2022.

Am very confused at the caseworkers calculation or understanding of my eligibility to apply for ILR under SET M

What are the paragraphs you were granted leave under ? Please paste the decisions here

[kixxo]

Letter from 2nd July 2019

GRANT OF LEAVE TO REMAIN FIVE YEAR PARTNER ROUTE
On 24 May 2018 you submitted an application for limited leave to remain as a partner route. I am writing to inform you that you have been granted a period of 30 months limited leave to remain under paragraph D-LTRP1.1. 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 (c) of these Rules. You may be eligible to apply for settlement after completing at least 5 years under this route.
For further information please see the relevant rules on our website:

Email from 14th Jan 2022

Your application under the Partner (FLR M)
route of the Immigration Rules has been
successful.
You have been granted permission to stay in the UK until 10 Aug
2024
This notice sets out all of the conditions of your permission to stay
in the UK so please read it carefully.
You will receive your Biometric Residence Permit (BRP) by courier
within 7 working days.

[MrGamgee]

Could this be because you applied before completing 5 years on the 5 year route?

This is what the SET(M) form says:

Use this form to apply to settle in the UK as a current spouse or partner of a person present and settled in the UK or as a parent of a child present and settled in the UK and you have spent 5 years with permission to qualify for settlement.

Use a different form if you have spent 10 years with permission to qualify for settlement.

You should only use this form if your:

current leave to remain is as the partner of a British citizen, settled person, or person with refugee leave or humanitarian protection and that leave is on the 5 year route and you have completed at least 5 years with leave on that route.
current leave to remain is as the parent of a child present and settled in the UK on the 5 year route and you have completed at least 5 years with leave on that route.

Also, this is what Appendix FM says regarding the 5 year route eligibility:

E-ILRP.1.3. (1) Subject to subparagraph (2), the applicant must, at the date of application, have completed a period of continuous residence in the UK of at least 5 years (60 months) with the following:

(a) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1; or
(b) limited leave to remain as a partner granted under paragraph D-LTRP.1.1; or
(c) a combination of leave under (a) and (b).

Based on the above, it would seem that they can make a decision to refuse an application for not completing exactly 5 years before the date of application?

Although I'm not sure why it was rejected as invalid, as this is what Appendix FM says:

GEN.1.15. Where, pursuant to paragraph D-ILRP.1.2., D-ILRP.1.3., D-ILRPT.1.2. or D-ILRPT.1.3., a person who has made an application for indefinite leave to remain under this Appendix does not meet the requirements for indefinite leave to remain, but the Secretary of State believes they may qualify for limited leave to remain under this Appendix or under Appendix Private Life:

(a) the Secretary of State will instead treat the application for indefinite leave to remain as an application for limited leave to remain; and
(b) the Secretary of State will notify the applicant in writing of any requirement to pay an immigration health charge under the Immigration (Health Charge) Order 2015 in relation to that application for limited leave to remain; and
(c) if any requested immigration health charge is not paid, the application for limited leave to remain will be invalid and will not be considered and the Secretary of State will not refund any fee paid in respect of the application for indefinite leave to remain.

[kixxo]

Am confused and not sure how to go about this because am having a feeling the refund will take very long and will not be refunded the super priority fees.

I believe I applied in the time frame which is 28 day’s before the 5 years anniversary. Any advice anyone how to proceed with this?

[zimba]

This is a clear case of the home office incorrectly invalidating an application for allegedly failing a 'validity' requirement by quoting a failure of an 'eligibility' requirement. This sometimes happens but the good news is that when the home office recognises this error, your application remains valid and can go ahead again. You should send a pre-action protocol (PAP) letter to the Home Office and ask the Home Office to reconsider its rejection decision within 14 days, citing their error for incorrectly rejecting the application as invalid.

See: https://www.gov.uk/government/publicati ... ial-review

[kixxo]

Thanks for your response.

I have today sent them a Pre-protocol action letter for invalidating my application as it unlawful and unreasonable as i meet all the requirements of the immigration rules for a grant on Indefinite leave to remain under Appendix FM 5 years partner route.

I have asked them to withdraw the decision to invalidate my application and the application should be considered promptly and also Refund the Super Priority service i paid in line with the secretary of states policy on the basis that my application was straightforward and was not decided within 24 hours

[zimba]

Well, you met the 'validity' requirements, so they were wrong to reject your application as invalid on 'validity' grounds. Your application was not considered and so the 'eligibility' requirements were not supposed to be evaluated at all unless the application was assumed to be valid (and that did not happen)

[MrGamgee]

If the OP hasn't heard back for a while after the PAP, given that they have extant leave, can they also re-apply before their expiry as well to ensure they are not overstaying while addressing the error?