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UK_Lawyer
UK_Lawyer, Solicitor
Category: UK Immigration Law
Satisfied Customers: 2047
Experience:  I am a qualified solicitor and an expert in UK law.
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Hi, my wife and I both arrived in UK under HSMP in 2008. At

Resolved Question:

Hi, my wife and I both arrived in UK under HSMP in 2008. At the time we were not married so we had each applied and been granted HSMP visas separately. Six months after arriving in UK we got married and have been living together. in 2010 we applied for extension of our visas under Tier 1, and we were both granted the extension. Early this year after we both had spent five years in UK, I applied for ILR and included my wife as my dependant for settlement. We have received UKBA's decisions and although I have been granted ILR, my wife has been refused. Case worker has cited "vary leave" as reasons for refusals. Do you know what our options are at this moment?
Submitted: 10 months ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 10 months ago.
Hi thank you for your question. Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE so I can get credited for my time.

In 2010 when you both applied for an extension were you both the main applicant or did your wife apply as your dependent?

Kind regards
Customer: replied 10 months ago.

In 2010 we were both the main applicant. Although we indicated on our forms that we were married to each other.


 


The ILR application was the first application we were making with my wife as my dependant

Expert:  UK_Lawyer replied 10 months ago.
Thank you for your reply.

Could please state the full reasons for refusal?

Kind regards
Customer: replied 10 months ago.

Hi


I left the letter in the house...but I could get it one hour or so....and I will send the full reasons stated

Customer: replied 10 months ago.

Hi, the Refusal letter states:


We have considered your application on behalf of the Secretary of state, and your application has been refused

You arrived in UK on dd mm 2008 with entry clearance under HSMP valid until dd mm 2010. Before expiry of your leave to enter, you applied for further leave to remain as Tier 1 HS general migrant and on dd mm 2010 you were granted leave to remain as Tier 1 HS general migrate until dd mm 2013. On dd mm 2013, your spouse, xxxx applied for settlement in UK as a Tier 1 HS general migrant and included you as a dependant on his application

Paragraph 219E of the Immigration Rules states:

(c) The applicant must have, or have last been granted, leave as the partner of the Relevant Points Based Migrant who:

(i) has indefinite leave to remain as a Relevant Points Based System Migrant; or

(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or

(iii) has become a British Citizen when prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.

With reference o Paragraph 319E(c0 above, you were last granted leave to remain as a Tier 1 highly skilled general migrant. You have never been granted leave to remain as the partner of xxx, the Relevant Points Based System Migrant in this case.

In view of the above, it is considered that you have failed to demonstrate that you meet the requirements of Paragraph 319E of the Immigration riles. Your application for settlement in UK as a dependant spouse of XXXX, a points based system migrant is refused under paragraph 319E of the Immigration riles with reference to Paragraph 319E(c) of the Immigration rules.

On 09 July 2012, the Immigration Rules were amended to unify consideration of Articled 8 of the European Convention Human Rights under Immigration Rules. If you wish the UKBA to consider an application on this basis you must make a separate charged application using the appropriate specified firm and pay the appropriate fee

Careful consideration has been given to all the circumstances of your situation but there is no evidence that there are grounds for exercising discretion in your case.
Expert:  UK_Lawyer replied 10 months ago.
Thank you for your reply.


I think it is clear from the refusal letter that the reason for refusal was that your wife applied for indefinite leave to remain as your dependent. Because she had never been in the uk as your dependent she should have applied on her own basis and separately and not as a dependent.

Because you added her to the application form as your dependent the home office refused her visa because she has never been granted leave to remain in the uk as a dependent of you.

Your options are as follows :

1. If you have been granted indefinite leave to remain then I believe that you should appeal the decision of the home office and then ask the tribunal to consider the fact that you made a mistake by adding her as a dependent and that the fact is that your wife would have let the requirements for indefinite leave to remain if she had applied on her own.

2. If it has been less than 28 days since the refusal and your wife's tier 1 visa has expired you may wish to apply for indefinite leave to remain again for your wife and ask the home office to over look the fact that your wife is an overstayer. Please bare in mind that the application must be submitted within 28 days of refusal.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time. If however you feel that the answer does not cover all the points raised in your question please DO NOT rate my answer negatively I will be happy to answer further question until you are satisfied with my answer.

Kind regards

UK_Lawyer, Solicitor
Satisfied Customers: 2047
Experience: I am a qualified solicitor and an expert in UK law.
UK_Lawyer and 4 other UK Immigration Law Specialists are ready to help you
Customer: replied 10 months ago.

Hi


I need a clarification on one of the issues above,


 


Do we have an option to apply for limited further leave to remain under Family life (appendix FM - Family Members)?


 


In the refusal letter it mentions 'the Secretary of state has decided that you should be removed from the country by way of directions under section 47 (Removal: personal with statutorily extended leave)


 


Does this constitute a deportation order? Or does it still allow us to apply for Further leave to remain and to be treated under the less than 28 days since refusal exception?

Expert:  UK_Lawyer replied 10 months ago.
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Customer: replied 10 months ago.

Thank you, that answers my questions!!!

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