Confusing ILR refusal....

[ironryon]

Hi Everyone....Hoping someone might be able to shine some light on a refusal letter we got for our ILR application.  What I thought was going to be a straight forward application.  The situation is my wife has been in the UK for 5 years.  First came here in 2012 on a spouse visa for 33 months, had 5 months in Thailand in 2013, extended her visa in 2015 with an FLR (M) for another 30 months.  In 2015 we spent 6 weeks in Thailand and not long after that my wife brought her daughter to the UK on a family visa.

 

So the ILR we just applied for was for both of them.  Everything in the application from my side and their was quite simple really.  Nothing complex.  Life in the UK test and B1 passed first time.

 

Anyway...getting to the refusal...I've attached the two main pages.  The other pages talk about how my wife can have a limited leave to remain of 30 days instead IF she pays £1000 NHS surcharge in the next 10 days.

 

Where it describes the reason she does not qualify for ILR it says she was granted leave to remain on the basis of family life under Appendix FM....it then later says she must have completed a continuous period of 60 months...slightly later on it says she has only been previously granted one period of leave to remain on the basis of family life under R-LTRP.1.1.(a), (b) and (d).

 

This is the part that confuses me the most because as I see it her spouse visa plus her FLR (M) visa were for 60 months plus and they are more than one period of leave to remain.  Her daughter however, was granted leave to remain on a family visa for one period.  Could it be then that theyve made a mistake mixing up the daughters visa with her mums and made a decision on that....OR am I missing something?

 

Any help and advice would be greatly appreciated.  

Thanks very much!

 

 

 

 

[rasg]

I saw this on a different forum but it didn't have the refusal notice.

 

I maybe wrong but I think you originally applied for FLR too early. The 33 month initial marriage visa allows three months to sort thing out in Thailand and make the move to the UK.

 

FLR was applied for almost two months before the marriage visa ran out. The two visas actually run concurrently by almost two months.

 

Because they only count the 30 months for the marriage visa, as far as I can, see your wife hasn't been in the UK for the full five years.

 

She is a month or so short and the reason ILR has been refused.

 

No doubt wiser people will chip and confirm what I have said. Or not.

[ironryon]

Hi rasg

 

I remember thinking that when we did the one day service to get the FLR.  We got cut short because they started the FLR (M) visa from that day and not from when the Spouse visa ran out.

 

What I keep getting drawn to in the rejection letter tho isnt that - its the part which says 

 

"As you has only previously  been granted one period of leave to remain on the basis of your family life under R-LTRP.1.1.(a), (b) and (d) you do not meet the above requirements...."

 

What is family life under R-LTRP1.1.(a), (b) and (d)? 

[rockingrobin]

1 hour ago, ironryon said:

Hi rasg

 

I remember thinking that when we did the one day service to get the FLR.  We got cut short because they started the FLR (M) visa from that day and not from when the Spouse visa ran out.

 

What I keep getting drawn to in the rejection letter tho isnt that - its the part which says 

 

"As you has only previously  been granted one period of leave to remain on the basis of your family life under R-LTRP.1.1.(a), (b) and (d) you do not meet the above requirements...."

 

What is family life under R-LTRP1.1.(a), (b) and (d)? 

From this site

https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members

 

The R-LTRP , is conditions to be satisfied for limited leave to remain

[rasg]

1 hour ago, ironryon said:

I remember thinking that when we did the one day service to get the FLR.  We got cut short because they started the FLR (M) visa from that day and not from when the Spouse visa ran out.

We didn't pay for the premium service and I submitted my wif'e first FLR two days before her visa was due to expire specifically to prevent something like this happening. (I'd read about it somewhere.) My wife came to the UK on a Fiancée visa that lasts for six months and they don't include the six months of that visa to make up the five years. I will do the same next April to make sure that my wife fulfills the five year requirement.

 

In your shoes I would contact a company like Thai Visa Express (the sponsors of this forum) and ask them. It will probably be free for the consultation. They will give you a definitive answer. I would also pay the NHS surcharge to get the new FLR they are offering and then argue with them afterwards. They've doubled it the last few weeks.

 

 

Edited March 3, 2018 by rasg

[rockingrobin]

1 hour ago, rasg said:

We didn't pay for the premium service and I submitted my wif'e first FLR two days before her visa was due to expire specifically to prevent something like this happening. (I'd read about it somewhere.) My wife came to the UK on a Fiancée visa that lasts for six months and they don't include the six months of that visa to make up the five years. I will do the same next April to make sure that my wife fulfills the five year requirement.

 

In your shoes I would contact a company like Thai Visa Express (the sponsors of this forum) and ask them. It will probably be free for the consultation. They will give you a definitive answer. I would also pay the NHS surcharge to get the new FLR they are offering and then argue with them afterwards. They've doubled it the last few weeks.

 

 

The last paragraph of the letter is confusing.

It states that the last permission was granted under conditions R-LTRP 1.1 (a),(b) and (d). and this requires a continuous period of 60 months.

 

I may be reading this incorrectly, but  does this not require 120 months and the 60 month period is for (a) to (c)

[Fish Head Soup]

They count the time the visa holder has actually spent in the country, not the time the visa has been held. If the visa holder was given permission to remain in the UK for 33 months and spent 5 months of that time outside of the UK and then was given a further 30 months to remain in the UK and spent a further 5 weeks outside the UK then they have obviously not spent the required 60 months in the country for ILR.

 

 

[TCA]

If the applicant has entered the UK on a marriage visa I'm unsure as to when the clock starts on the 60 months, but on a normal spouse visa the earliest you can apply for ILR is initial entry date to UK + 5 years - 28 days.

 

As far as I know time spent outside the UK is excluded, although if it is considerable (like 5 months), then at the very least questions would be asked as to whether the person was genuinely settled in the UK.

Edited March 4, 2018 by TCA

[RAZZELL]

On 03/03/2018 at 9:49 AM, rasg said:

We didn't pay for the premium service and I submitted my wif'e first FLR two days before her visa was due to expire specifically to prevent something like this happening. (I'd read about it somewhere.) My wife came to the UK on a Fiancée visa that lasts for six months and they don't include the six months of that visa to make up the five years. I will do the same next April to make sure that my wife fulfills the five year requirement.

 

In your shoes I would contact a company like Thai Visa Express (the sponsors of this forum) and ask them. It will probably be free for the consultation. They will give you a definitive answer. I would also pay the NHS surcharge to get the new FLR they are offering and then argue with them afterwards. They've doubled it the last few weeks.

 

 

Are you sure?

 

Admittedly, my wife did hers a fews years ago but it was 100% included.

 

RAZZ

[rasg]

1 hour ago, RAZZELL said:

Are you sure?

 

Admittedly, my wife did hers a fews years ago but it was 100% included.

That's what I was told, not that she needs to include that six months. 2 FLRs of 30 months each add up to five years.

[RAZZELL]

8 hours ago, rasg said:

That's what I was told, not that she needs to include that six months. 2 FLRs of 30 months each add up to five years.

When my wife did her FLR, ILR, the period was only 3 years to citizenship.

 

The clock "started ticking" on here first legal visit to the UK.

 

So her first visit visa and her fiancee visa were both included.

 

RAZZ

[saakura]

Getting a thai PR seems easier than this ILR 

[RAZZELL]

Just now, saakura said:

Getting a thai PR seems easier than this ILR 

It was all relatively painless to be honest.

 

3 years and a bit and my wife had a British passport.

 

RAZZ

[Fish Head Soup]

6 hours ago, RAZZELL said:

When my wife did her FLR, ILR, the period was only 3 years to citizenship.

 

The clock "started ticking" on here first legal visit to the UK.

 

So her first visit visa and her fiancee visa were both included.

 

RAZZ

The rules changed in 2012.

[fbf]

It looks to me like you applied too early, and that the FLR application when granted didn't add onto the end of the initial leave to enter.

 

As others mentioned above, the time your wife was in the UK is significant for ILR - it must add up to 60 months. Because it took 1 month for her to enter the UK but you applied for FLR near the very start of the overlap, the time in the UK didn't quite add up to the total months covered by the visa applications.

 

Leave to enter: 2nd November 2012 - 2nd August 2015 (2 years, 9 months)

Actual entry: 3rd December 2012

Further Leave to Remain: 7th May 2015 to 5th December 2017 (2 years, 6 months, minus 2 days*)

 

(* not sure why, maybe application date was 5th May 2015? probably immaterial)

 

Did your wife submit her ILR application before 3rd December 2017? If so, I think that would be the problem - 60 months didn't elapse since your wife entered the UK. Had it been submitted on 4th or 5th December I suspect it might have been approved - but I'm not 100% sure here. If so, then ideally the FLR application would have been submitted a bit closer to 2nd August 2015 to give more leeway in December 2017.

 

As far as I can find out, the time outside of the UK isn't necessarily a problem - the latest evidence I can find is here: https://www.whatdotheyknow.com/request/absence_from_uk_on_spouse_visa. I don't think the days outside the UK are counted in the 60 months; part of normal life in the UK is the occasional trip abroad.

 

 

Edited March 11, 2018 by fbf

[ironryon]

Update and good news (although a bit tainted by the messing around and cost of a lawyer) - my wife and her daughter have been given ILR visas this week! 

After our immigration lawyer sent a letter to the agent working on our application, around 6 n half weeks ago we heard nothing back from the home office...and then out of the blue this week we had a courier deliver their ILR biometric residence permit cards.
Seems our guess was right that a mistake had been made. I say guess because we didnt receive an explanation about whats happened. No apology...no return of passports and supporting documents..just the two cards. Our immigration lawyer said it's very rare that they admit to mistakes so I wont be holding my breath for one. Hopefully we will get our passports back soon

[Fish Head Soup]

3 hours ago, ironryon said:

Seems our guess was right that a mistake had been made. I say guess because we didnt receive an explanation about whats happened. No apology...no return of passports and supporting documents..just the two cards. Our immigration lawyer said it's very rare that they admit to mistakes so I wont be holding my breath for one. Hopefully we will get our passports back soon

They didn't make a mistake. Your wife had not met the residency requirements under the continuous residence rule due to the amount of days absent from the country. It looks like the case has been reassessed by a supervisor and she has been given discretion for the absence. This doesn't make the original refusal decision wrong.

[7by7]

21 hours ago, Fish Head Soup said:

They didn't make a mistake. Your wife had not met the residency requirements under the continuous residence rule due to the amount of days absent from the country. It looks like the case has been reassessed by a supervisor and she has been given discretion for the absence. This doesn't make the original refusal decision wrong.

 Members may find the Home Office guidance to staff Indefinite leave to remain: calculating continuous period in UK interesting.

 

However, one important, nay vital, point to note is that this does not apply to those on the five year family route; e.g. spouses of British nationals and their dependent children. See page 4 "Categories covered by this guidance."

 

There is, in fact, no fixed maximum amount of time those following the 5 year family route can spend outside the UK during their 5 year qualifying period stated in the immigration rules. However, applicants do need to show that they are UK residents and have been for the entire 5 years; which may be difficult to do if more time has been spent out of the UK than in. Unless they have an acceptable reason, such as their British partner being a Crown servant temporarily stationed overseas (immigration rules para 26A).

 

On ‎21‎/‎04‎/‎2018 at 9:34 AM, ironryon said:

Update and good news (although a bit tainted by the messing around and cost of a lawyer) - my wife and her daughter have been given ILR visas this week!

I don't know the full story, only what has been posted here, but it seems to me that your wife and daughter were originally refused because, as others have said, they had not lived in the UK for 60 months when they applied. They now have, so it seems that UKVI have seen sense and now granted their ILR rather than go through an appeal or make them apply again. 

 

Unusual? Possibly; but not the first time I have known this to happen. when, as in your wife and her daughter's case, the shortfall was only a few weeks.

 

[Fish Head Soup]

Very interesting 7by7.

 

I guess for anyone on this route (my wife is one of them) this is the part to take note of;

 

Quote

Under paragraph 6 of the Immigration Rules “intention to live together permanently with the other” or “intend to live together permanently” means an intention to live together, evidenced by a clear commitment from both parties that they will live together permanently in the UK immediately following the outcome of the application in question or as soon as circumstances permit thereafter.

The applicant and their partner must intend to live together permanently in the UK. Each case must be judged on its merits.

In applications for further limited leave to remain or for indefinite leave to remain in the UK as a partner, where there have been limited periods of time spent outside the UK, this must be for good reasons and the reasons must be consistent with the intention to live together permanently in the UK. Good reasons could include time spent overseas in connection with the applicant’s or their partner’s employment, holidays, training or study.

If the applicant, their partner or both have spent the majority of the period overseas, there may be reason to doubt that the couple intend to live together permanently in the UK. Each case must be judged on its merits, taking into account reasons for travel, length of absence and whether the applicant and partner traveled and lived together during the time spent outside the UK. These factors will need to be considered against the requirements of the Rules.

But as you correctly stated there is technically no limit of absence which to me is very interesting as I was always made to believe that there was a set time written somewhere in the rules.

 

Thanks for the correction.

[7by7]

13 minutes ago, Fish Head Soup said:

But as you correctly stated there is technically no limit of absence which to me is very interesting as I was always made to believe that there was a set time written somewhere in the rules.

 

Thanks for the correction.

You're welcome.

 

As I said, for most categories there is a set time limit written into the rules; but not for family members on the five year route.

 

Instead, as the guidance you quote says, each case will be treated on it's own merits, taking into account such factors as the reason for, frequency and length of each absence and whether or not the applicant was travelling with or to join their British partner.

 

For example, annual holidays of up to a month to the applicant's home country, accompanied by their partner or not, should not be a problem.

Edited April 22, 2018 by 7by7
Addendum

[TCA]

On 22/04/2018 at 10:59 AM, 7by7 said:

 Members may find the Home Office guidance to staff Indefinite leave to remain: calculating continuous period in UK interesting.

My wife's ILR application is due soon and I stumbled across the document linked above by 7by7 when searching for official confirmation of the ability to apply for ILR 28 days before the end of the continuous period.

 

What I didn't know (and I think it says) is that you can include the period between the initial entry visa being granted and the actual entry date to the UK.

 

From p.8 of the document:

 

Period between the issue of entry clearance and entering the UK

The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the continuous 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry. If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation.

 

And the bit I was looking for from p.9 of the document:

 

Calculating the specified continuous period

Applicants can submit a settlement application up to 28 days before they would reach the end of the specified period. You must calculate the relevant qualifying period by counting backward from whichever of the following is most beneficial to the applicant:
• the date of application
• the date of decision
• any date up to 28 days after the date of application

 

My wife's entry clearance visa was issued on 28/5/13 and she entered the UK on 12/6/13. I was going with the entry date + 5 years = 12/6/18 - 28 days = 15/5/18 as the earliest date to apply.

 

On reading the above I reckon she could actually apply on 30/4/18! Anyone care to give a view on the above or anyone actually submitted an ILR application on the shorter timeline? I'm very wary given the OP's experience but would gladly get this application out the way sooner rather than later. 

Edited April 23, 2018 by TCA

[Fish Head Soup]

2 hours ago, TCA said:

On reading the above I reckon she could actually apply on 30/4/18! Anyone care to give a view on the above

I read it as the same.

[7by7]

12 hours ago, TCA said:

My wife's ILR application is due soon and I stumbled across the document linked above by 7by7 when searching for official confirmation of the ability to apply for ILR 28 days before the end of the continuous period.

 What you must consider, TCA, is what I said when I linked to that document:-

 

On ‎22‎/‎04‎/‎2018 at 10:59 AM, 7by7 said:

However, one important, nay vital, point to note is that this does not apply to those on the five year family route; e.g. spouses of British nationals and their dependent children. See page 4 "Categories covered by this guidance."

 

 So DO NOT ASSUME THAT ANYTHING IN THAT DOCUMENT APPLIES TO YOUR WIFE BECAUSE NONE OF IT DOES!

 

For clarity.

Quote

Categories covered by this guidance
 
This section tells you which categories of leave are covered by this guidance.
 
The following categories are covered by this guidance:
 
• representative of an overseas business  (paragraph 150 of the Immigration Rules) • UK ancestry (paragraph 192) • retired person of independent means (paragraph 269) • domestic workers in private households (paragraph 159G)  • the following sub-categories of the points-based system: o Tier 2 (General) (paragraph 245HF) o Tier 2 (Sportsperson) (paragraph 245HF) o Tier 2 (Minister of religion) (paragraph 245HG) o Tier 2 (Intra-company transfers) (ICT) granted under the rules in place before 6 April 2010 (paragraph 245GF) o Tier 5 (International agreement) – private servants in diplomatic households granted entry under rules in place before 6 April 2012 only (paragraph 245 ZS) • PBS dependent partners (paragraph 319E) and PBS dependent children (paragraph 319J)
 
It covers the following routes which allow accelerated settlement:
 
• Tier 1 (Entrepreneur) (paragraph 245DF) • Tier 1 (Investor) (paragraph 245EF) • Tier 1 (Exceptional talent) (paragraph 245BF)
 
It also covers the following categories that are now closed for entry to the UK and extension of leave:
 
• airport-based operational staff of overseas-owned airlines (paragraph 184) • highly-skilled migrant programme (paragraph 135G) • Tier 1 (General) (paragraph 245CD)

As you can see, family members applying under appendix FM, such as your wife, are NOT on that list.

 

I don't have the time for a 100% thorough search, but after a reasonably complete one cannot find any official reference to the 'can apply 28 days early' convention for family members. Though I do know of many who have done this, both under the rules extant before July 2012 and under the current rules. But they have always counted back 28 days from the fifth, or under the old rules second, anniversary of their first entering the UK as a spouse or partner or their first FLR if they entered as a fiance.

 

Your choice, but I would not risk a refusal such as the OP's wife's merely for the sake of applying 28 days earlier than this.

 

[TCA]

2 hours ago, 7by7 said:

As you can see, family members applying under appendix FM, such as your wife, are NOT on that list.

 

Your choice, but I would not risk a refusal such as the OP's wife's merely for the sake of applying 28 days earlier than this.

 

Thanks 7by7. I completely glossed over the applicable categories for the document. In light of no concrete evidence for the "28 days before" rule, we might as well wait until the 5 year anniversary of UK entry.

 

I was putting the cart before the horse and thinking ahead to the UK citizenship application my wife will make, which for some odd reason requires the applicant to have been physically present in the UK on the date exactly 3 years before the Home Office receives the application. That could be an issue depending on how long the settlement visa application takes, but things will take however long they they'll take, so I'll revert to one step at a time.

[7by7]

7 hours ago, TCA said:

I was putting the cart before the horse and thinking ahead to the UK citizenship application my wife will make, which for some odd reason requires the applicant to have been physically present in the UK on the date exactly 3 years before the Home Office receives the application. That could be an issue depending on how long the settlement visa application takes, but things will take however long they they'll take, so I'll revert to one step at a time

 Indeed; as you say one of the requirements for naturalisation by the spouse or civil partner of a British citizen is that the applicant was both physically and legally present in the UK on the exact date three years prior to applying. 

 

The type of visa or leave to enter or remain they held at that time doesn't matter; so under the old two year rule it was possible for someone who was in the UK as a visitor three years prior to apply as soon as they received their ILR. Of course, now that it takes 5 years to get ILR that, is unlikely to happen.

 

There is also a maximum time naturalisation applicants are allowed out of the UK during their residential qualifying period; and many  people get confused over this and think it applies to ILR as well. 

 

For the spouse or civil partner of a British citizen it is that during the previous three years they have spent a maximum of 270 days out of the UK, with no more than 90 days in the final year.

 

There is flexibility in this and absences of 300 days in total and/or 100 days in the final year are usually ignored. Longer absences may be allowed depending upon the reason, e.g. accompanying a British spouse in Crown service who was stationed overseas.

 

So, although there is no set maximum time allowed out of the UK for ILR, it is worth keeping an eye on this in case one wishes to apply for British citizenship once one has ILR.

 

Remember, that as it now takes at least 5 years for a spouse or civil partner to obtain ILR, they can, provided all the requirements are met, apply for naturalisation as soon as they receive their ILR.

 

However, the residential qualifying period for all others, including unmarried partners, is 5 years not three and they must also have held ILR for at least 12 months before they can apply.

 

See Become a British citizen for more.

[Fish Head Soup]

^Thanks.

[TCA]

19 hours ago, 7by7 said:

Indeed; as you say one of the requirements for naturalisation by the spouse or civil partner of a British citizen is that the applicant was both physically and legally present in the UK on the exact date three years prior to applying.

We'll just have to play the above by ear and see when (hopefully) ILR is granted. I had a quick look at form MN1 and the guidelines document for child citizenship applications and it looks a potential minefield. Didn't look very user-friendly for the case of a stepdaughter not born in the UK, but I'll cross that bridge (/mountain) when I come to it. 

[7by7]

@TCA,

As I'm sure you know, children under 18 cannot be naturalised as British, they are instead registered as such. The rules and requirements for this can be confusing.

 

Assuming that she is living in the UK with her mother then your stepdaughter, as mine did, will almost certainly come under a Registration at the Home Secretary’s discretion – Section 3(1) application (see page 14 of the guide).

Quote

Children born abroad to parents who are applying for British citizenship
 
Where one or both parents are applying for British citizenship they may apply for one or more children who are not automatically British at birth (see “Automatic acquisition of British citizenship” above) to be registered as British citizens as part of a “family application”. Children in this category will be considered at the Home Secretary’s discretion and will usually be registered only if both the parents are granted or already hold British citizenship, or if one parent holds British citizenship and the other is settled in the UK.

Do not worry about "(Children) will usually be registered only if both the parents are granted or already hold British citizenship, or if one parent holds British citizenship and the other is settled in the UK." As your wife presumably has sole responsibility, or the girls father is dead, only the mother counts.

 

Mother and child should apply together then, unless there are highly unusual circumstances, like my wife and step daughter, and all other similar cases of which I am aware over the last 18 years, if the mother's application succeeds then the daughter's will as well.

[TCA]

16 hours ago, 7by7 said:

As your wife presumably has sole responsibility, or the girls father is dead, only the mother counts.

 

Mother and child should apply together then, unless there are highly unusual circumstances, like my wife and step daughter, and all other similar cases of which I am aware over the last 18 years, if the mother's application succeeds then the daughter's will as well.

Thank you 7by7. The father went AWOL shortly after my stepdaughter was born (whereabouts still unknown), so all UK visa applications to date have included my wife has having sole responsibility.

 

Thanks for the heads-up on the category for application. Both applications will be made at the same time. The child won't have been in the UK for 3 years at that stage but presumably that isn't an issue given the discretionary nature in which citizenship would be granted. I'll double-check though.    

[7by7]

10 hours ago, TCA said:

The child won't have been in the UK for 3 years at that stage but presumably that isn't an issue given the discretionary nature in which citizenship would be granted. I'll double-check though.    

It wont be an issue; there is no minimum UK residency period for child registration under section 3(1). No LitUK test or English languge requiement either.