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Discussion Starter · #1 ·
Hi can anyone venture an answer to this:

What if you made a SET(M) application for indefinite leave to remain under the old rules ie before July 2012 (having completed 2 years probation) and met all the requirements except demonstrating 'adequate maintenance'. Therefore you were only granted limited leave to remain for 30 months instead of ILR.

What if one's finances now DO meet the maintenance requirement, can one then make another attempt at ILR rather than have to wait another 10 years for ILR. Would the application still be counted under the old rules before July 2012 where you don't have to prove over £18,600? i.e will the old paragraph 287 of the immigration rules still be the applicable one or the new appendix FM?

It is obviously a big risk to pay another £1500 unless one can be sure of getting ILR!

If anyone has any view this would be appreciated.
 

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If you and your partner have been grandfathered in under the "pre-July 9, 2012" rules, then you're in it to win it, so to speak... you can't be bumped out of that category (ie they can't change the rules on you by holding you to the post-July 9, 2012 rules).

So, yes, you can apply again for ILR at any time before the visa that you have expires.

I know this for a fact because when I went for my PEO appointment to get my initial FLR(M) visa after my wedding (I applied for entry clearance on 04 July '12 and got married in November '12), there was another couple at the PEO office who were going for ILR. Unfortunately, the wife had neglected to sit the Life in the UK test prior to the application.

She was subsequently granted another FLR(M) and told to go and sit the Life in the UK test and come back again to apply for ILR once she had proof of having passed the test. Expensive mistake, yes, but seeing as she had otherwise qualified for ILR (>2 years in the UK, met the income threshold etc), as soon as she met all of the conditions for applying for ILR she was welcome to apply again.
 

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Discussion Starter · #4 ·
Although the thing that concerns me is that the spouse visa was not extended ie for 2 years, but they granted 2.5 years not on a spouse visa but on Section Ex.1 of appendix FM. So I was wondering whether that means you fixed into the Appendix FM track now?
 

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In regards to the visa length, it was probably just an oversight on the part of the Home Office (since us pre-July 9 people are quickly being reduced in numbers and, as time goes by, the newer, longer length visas are the norm), and it's kind of moot if you're going for ILR.

As for the Appendices, I don't recall filling one of those in when I applied for ILR last year. I had to specify the income we were using to meet the threshold and also specify any other funds my husband was receiving, but I didn't have to complete any appendices. Have a look at page 23 of the application,.. it looks not unlike what the old FLR(M) applications looked like in regards to finances (i.e. it's geared to the old rules applicants and not the post-July 2012 applicants who are only half way to being eligible for ILR).


Good luck to you!
 

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Discussion Starter · #6 ·
Hi actually your last post and reference to the application form was useful as I noticed from the SET(M) form that is says on the first page:

"If your last grant of leave was not issued under Paragraph 281, 284, 295A or 295D under Part 8 of the Immigration Rules you MUST NOT apply using this form. If you have not had leave under one of these categories and apply using this form you will be refused indefinite leave to remain under the Immigration Rules."

Whereas the grant of leave before last was under the old Part 8, the "last grant of leave" was not as it was granted under the new post July 2012 rules. So they are saying in that case to use the new form which as you were saying asks you to show the £18,600.

So as I am thinking, perhaps once you have received a grant under the new rules, then that separates you from any eligibility under the old rules (and its easier requirements). Any thoughts? It's a tricky one, but thanks for your input WCCG. I would not have seen that warning otherwise.

If anyone else has any insights on this would really be appreciated.
 

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As long as you applied for entry clearance before 09 July 2012, you have nothing to worry about... all of your applications, including the one for ILR will be treated according to the rules that were in place on the date that you lodged your application for entry clearance, regardless of the rules that are in place on the day that you lodge a subsequent application.

When I applied for FLR(M) in November 12, the new rules were definitely in place but I was still cleared under the old rules. When I went for ILR, the same applied, in spite of the fact that the rules are how they are today.

The Home Office has exact records of when you've lodged an application, so they can trace back to see when you've applied in the past. When they look at your file, they'll see that you first applied before the rule change and as such, they will keep you on that track.

This is standard practice for the Home Office, as I've since seen similar date sensitive concessions given to other categories of immigration applicants.
 

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With all due respect, I don't think WCCG is right in this case. If an applicant, under the old rules, makes an unsuccessful application and subsequently receives leave under the new rules (30 months under FLR), any subsequent application will then be subject to the same rules. Her example of someone failing to take LITUK test isn't comparable, as the applicant was given an extension, not a new leave.
 

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Discussion Starter · #9 ·
Hi yes I think Joppa hit the nail on the head. What WCCG says is correct but only so far as your LAST grant remains under the old Part 8. However, as Joppa said if a subsequent grant is made under the new rules you are then diverted into that new system.

I think this is confirmed in the current part 8 of the immigration rules titled "Transitional provisions and interaction between Part 8, Appendix FM and Appendix FM-SE":

A277A is saying if you don't meet the old ILR requirements but DO meet the old LTR (limited leave) requirements you would still be granted under Part 8. So that would be like WCCG's example where the person didn't have their Life in the UK test. Although not eligible for ILR they still met the LTR requirement which only needed an ESOL level 1. Hence they could get continue to get granted under Part 8 (or an 'extension' as Joppa said). Hence their future ILR application would also still be under the old Part 8.

However A277B is saying that if you don't meet BOTH the old ILR and LTR then you will get a grant under the new rules. Unfortunately this will apply to my example of not having enough maintenance as this fails BOTH ILR and LTR (because the requirement for maintenance is the same for both ILR and LTR). Hence the reason for the grant under the new rules (in this case section. EX.1) and thus the 10 year route.

The only small saving grace is that it seems according to A277B (c) the 2 years already served on the spouse visa can be added on to the new grant and count towards the ILR total:

A277B (c)
if the applicant is granted leave under those provisions, the period of the applicant's continuous leave under Part 8 at the date of application will be counted towards the period of continuous leave which must be completed before the applicant can apply for indefinite leave to remain under paragraph 276B

So it seems that in my example you are 2 years into a 10 year journey, and must keep applying for LTR until the 10yr finish line. I think that is correct but if anyone thinks not I will appreciate any suggestions.

Thank you WCCG and Joppa for both your input and helping to solve this. At least £1500 will not be going to waste.
 

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I think you are on the 5-year route, so subtracting the two years you've already spent, you need 3 more years to be eligible for ILR. You do need to renew your leave for 6 months to bring your stay up to 5 years.
10-year route is for those under long residence.
 

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Discussion Starter · #11 ·
The refusal letter says "it has been concluded that you meet the requirements of R-LTRP.1.1.(a), (b) and (d) and EX.1. of Appendix FM and says "it would be appropriate to grant you LTR for 30 months thus entering a ten year route to settlement."

I just checked the Appendix FM and it says:
"D-LTRP.1.2. If the applicant meets the requirements in paragraph R-LTRP.1.1.(a), (b) and (d)
for limited leave to remain as a partner they will be granted leave to remain for a period not
exceeding 30 months...and they will be eligible to apply for settlement after a continuous period of at least 120 months with such leave, with limited leave as a partner under paragraph D- LTRP.1.1."

So it looks like it is 10 years. I think you would need to start earning above the threshold before you could get on the 5 year route.
 

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Yes, you are right. You didn't meet the financial requirement under the 5-year route.
 
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