Help needed regarding ILR

[philwafc]

Hi

My wife's spouse visa finishes on 30/12/11
She has failed her KOL test 3 times, the 3rd one today.

What are her options now, the next available test for her to take would be 21 December, but if she passed I think it would be too late to get her application in on time especially with the Christmas holidays as i'm assuming the UKBA staff won't be working over the festive period.

Is it best for her to get an application in for further leave to remain, as soon as possible?

Many thanks

[Obie]

Provided her leave is not expired, you could apply for FLR, or wait until she passes the test and apply for ILR.

Under the rules relating to ILR for spouse who have completed the 24month probation, she can apply even after her leave has expired, and it will not count against her. But if she is in employment, then applying for FLR will be the best option, or if she wishes to apply for Naturalisation shortly.

[philwafc]

I had no idea she could apply for ILR after her spouse visa has expired, I thought she would get in all kinds of trouble for that.
She isn't interested in applying for Naturalisation any time soon but she is employed. Would she be breaking rules then if she was working and applying for ILR after her visa had expired? If she was to apply for ILR this way would it be a straightforward application just as if her visa hadn't expired?

Many thanks

[philwafc]

My wife has decided she wants to do the test on 21 December and if she was to pass post it special delivery on the 22 and it would get there on the 23. Would it be down as received by the UKBA on the 23rd, i'm thinking they could mark it down as received at a later date and as her visa expires on the 28th she would be too late, so then i'm assuming she would be an overstayer?

The option I was thinking was apply for FLR but after downloading the form I see she needs to pass an English language test which she isn't going to be able to do before her visa expires. She could also fail her KOL again which would mean she would be too late then to apply for either.
Either way it looks to me she is going to have no legal immigration status by the end of the month. What is the worst that can happen, would she have to quit her job? Surely she can't be deported especially since we have a baby girl?

Could anyone advise on what do next

Thanks

[Obie]

You can by all means do that. However if application does not arrive before leave expires, she will not have a section 3C leave, which means she will be working illegally with out leave.

However this will not have an effect on ILR application.

She may be exempted from that requirement to obtain the English language test if she can show exceptional compassionate circumstance, why she could not obtain it, or show she has mental of physical difficulties preventing her from passing it.

In any event, applying after leave has expired will have little bearing on ILR, if she passes Life in the UK test.

Alternatively you could get her to do the English language test. It is less complex than KOL

[philwafc]

Thanks for the reply Obie.
So the downside to applying late for ILR would be she would have to quit her job.

Can she take the English language test for ILR instead of the KOL or is the the English Language test just for FLR?
If she fails her KOL again and we go for FLR is it also ok to go for FLR late?

For either of these how late can we apply and do we need to notify UBKA of a late application?

Sorry for the many questions and I hope i'm not repeating myself!
Your answers are appreciated Obie

[geriatrix]

Can she take the English language test for ILR instead of the KOL or is the the English Language test just for FLR?

No and Yes.

If she fails her KOL again and we go for FLR is it also ok to go for FLR late?

FLR application must be made in-time (i.e.- before current leave expires).

[Obie]

There is an ESOL course as opposed to test, which will exempt her from KOL test, but she will need to show progression from one level to another. The English test on its own will not be sufficient for the purpose of ILR.

[Casa]

Apply for FLR before her current visa expires and ask for Discretionary Leave.

[quantum1]

If you are applying by post the date of application is the date that it was posted on, not the date it was received. You could send it on the 30/28th and the application would still be in-time. You have given 2 expiry dates for your wife, so I am not sure which is the correct one.

[philwafc]

Yes we are using the FLR (O) form and asking for Discretionary leave, we think this is the safest option for now.
It's the 30th my wifes visa expires, no idea why I put 28th

[Obie]

I believe an application for DLR is the only option, but i find it dficult to see a caseworker issuing it when the only reason for seeking it is lack of English language test.
However this will ensure your wife does not make an invalid application, and ensures she gets section 3c rights until she passes the test and vary her leave.

It is imperative she passes it, or she can undertake ESOL course instead.

Great suggestion Casa.

[philwafc]

What would happen if they didn't issue Discretionary Leave then?
Surely they wouldn't ask her to leave the country especially with a baby daughter, I wouldn't think they could separate Mother and child...
If she did get Discretionary Leave how long would this last for? (2 years)
and could she apply for ILR while on this?

Also is really true that a valid application counts from the date you post the application and not when UKBA receive it? So as long as she posted it before her visa expires she would be fine. I've looked for confirmation on this on the UKBA website but cannot see anything regarding this.

Cheers