Awan-Legal : Hi
Awan-Legal : I can understand your concerns. Please note that the doctor's letter must also state that this is a long term/permanent condition which would prevent her from learning English. She does not need to return to Brazil and re-enter on a visit visa as this would mean that she would need to start all over again with the spouse application. I would advise as follows:
Awan-Legal : There are two options available to her. She can apply for a further two year extension on form FLR M on the basis that she is waiting for a
Awan-Legal : Doctors letter to claim exemption.
Awan-Legal : She can then 'vary' this application to a set m form (for indefinite leave as a spouse) once she has obtained the doctor's letter and pay the fee balance for a set m application.
Awan-Legal : Alternatively she can simply apply for the set m application and explain in a cover letter that you are waiting for the doctor's letter and to allow her time to obtain the same under Article 8 of the European Convention of Human Rights (her right to a private and family life) as she has been here for several years, has a British husband and children. Hopefully by the time a decision is made, she will have received the letter from the doctor.
Awan-Legal : It may also help if you can push the doctor to write the letter promptly on an urgent basis so that you can submit it with the application.
Awan-Legal : I would just warn you though that the UKBA can be quite strict with this requirement and so it is up to them whether to accept this letter as evidence of her inability to learn (from past experience). A solicitor or MP's letter to support this exemption would help.
If I apply on an FLR M and say I am waiting for the doctors letter etc will they not just refuse the visa?
Awan-Legal : If the Home Office do not accept that she is exempt from this requirement, then you can still request indefinite leave on human rights (as set out above), in particular as she is the carer of your British children.
Unfortunately the children are not my natural children and are Brazilian
Awan-Legal : Hopefully by the time a decision arrives (takes a few months at present), hopefully the doctor's letter may have arrived by then. I would try my best to get the doctor's letter first in any event before you make the application (most doctor's will provide a letter within one week or two which gives you enough time to obtain this before applying).
And if we cant get the doctors letter?
Awan-Legal : That is ok, the children have been here for about 7 years so would have developed strong family, private and educational ties in the UK which should help with the application. Also, your rights as a British citizen would be infringed if she were to leave the UK.
Awan-Legal : I would advise getting a lawyer to assist with your application in case it becomes complex.
Awan-Legal : Without the doctor's letter, you will be relying on human rights alone but as I said the UKBA and courts are very strict on the English requirement and so she is less likely to be granted indefinite leave to remain. She may instead be granted discretionary leave to remain for three years, have to obtain an extension of this for three years and then indefinite leave just before 6 years of discretionary leave. This will certainly elongate the process.
Awan-Legal : I hope that she would be able to obtain a doctor's letter though given that she has learning difficulties.
So if I apply for an extention and get a doctors letter to say I am waiting for a specialist to confirm her medical condition they will wait for us not just simply refuse a visa?
Awan-Legal : But if she wants to make another application for 2 years' FLR as a spouse she would still have to take the English Language "Speaking and Listening" test at A1 level. This is a very basic level which she should be able to pass hopefully as someone with limited or basic English skills. Does she communicate with you in English or Brazilian Portuguese? With an MPs letter or solicitors letter, they are more likely to wait although this is not guaranteed and it could still be refused.
she communicates with me in portugese i speak some portugese
if it is refused what should she do next?
Awan-Legal : You will need to appeal on human rights and hopefully she should get discretionary leave to remain.
excellent i think i have finished can i definately appeal i heard they may not always be a right of appeal if you are already in the country?
Awan-Legal : It is more likely than not that she will be given discretionary leave, given the length of time of your marriage in the UK and that there are children involved (albeit not British but living in the UK in family life nonetheless). There have been a few recent decisions by the higher courts which consider the best interests of children as a primary factor in remaining in the UK, which should really help your case.
Awan-Legal : There is always a human rights appeal available so yes you can!
thank you can i press accept
Awan-Legal : There is also a case being appealed against the Court of Appeal on the spouse English language requirement so that is one to watch out for, although the outcome could go either way let us hope it is in favour of your case.
Awan-Legal : Yes please. Thank you so much.
You have been really helpful thank you.
Awan-Legal : My pleasure, thanks and good luck. Please request me specifically if you have any further questions.