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'OUTSIDE IMMIGRATION RULES? Discreationary Leave to Remain In UK


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#1 Truegal

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Posted 16 September 2008 - 10:48 PM

Dear All,

I have decided to post this thread in here as there seems to be very limited information/ experiences of those of us that our spouses has passed away. I have noted with intrested that there are so many posts in reference to those asking querries about their beloved living spouses/fiances/family union . Also for beareaved spouses BUT only if you fall under the category of '2 yrs or 3 yrs spouse Visa' and you lose your dear one before end of that visa. That is you qualify apply for ILR straight away and not much is required when filling in the forms SET(O).

However, for those like myself who are bereaved, but falls outside the Immigration rules, which is 'discreationary Leave to Remain' as a result of article 8, there is very limited info, on here and on the IND website.

Intrestingly enough, I telephoned the HO today to enquire about the category and the appropriate forms to use for my application and to my surprise, the gentleman at HO said I should consinder FLR(O) if I am intending to extend my current 'Discreationary Leave' ( Limited Leave to Remain) or SET(O) if I am intending to settle in UK indefenitely, ( I got married 2004 and dear one passed away 2007 from cancer)

However, he said my application would be refered to a case worker as its 'outside immigration rules' , who would consinder my circumstances at the time of application. But he did say, as he is not sure, I should contact Immigration advisory service, which I did and to my Horror, you got to have an appointment for finance assessment and if one is not entitled to free advice, the fee is £70 for 1/2 hr or £141 for 1hr......

But I am sceptical , If they Know much more that their coullegues at the HO Enquiries :unsure:

Well looking at the forms FLR(O), any other 'purpse/reasons' not covered by other forms were if you - serious medical reason where treatment is not private.

For SET(O) There is the beareved partner (My wild guess is if you fall in the category of spouse Visa) and Also there is a section of any other purpose/reason not covered in the form.

I am dearly appealing to all fellow forum members , those with similar experiences or the expertise in the immigration area ( outside immigration rules) to please give an insight into this AREA, rather unpleasant but un avoidable because I am really confused and worried what do I do next.... :blush: :unsure: :glare:

Many thanks to all for taking the time!



#2 Ansar Ahmad

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Posted 17 September 2008 - 04:10 PM

Although Immigration Rules are laid down before the Parliament however, the English Courts are of the view that those rules are not the “final authority” to determine who is entitled to remain in the UK. As these rules further do not guarantee the protection of fundamental human rights, therefore, the concepts of “Outside Immigration Rules and Discretionary Leave” are still in place.

[b]Difference between DL based on marriage and Spouse LTE/LTR[/b]

There is a clear distinction between DL and 2 years spouse leave to enter/remain. The benefits and privileges attached to the said two types of leaves are also different; such as DL gets converted into ILR after 6 years whereas, spouse LTE/LTR changes into ILR in only 2 years time, nationality is achieved in less time by LTE/LTR holders, bereaved spouse provision is open to spouse LTE/LTR holder etc.

Legitimate Expectation

Spouse LTE/LTR holders are admitted into the UK with a view to settlement meaning thereby that they will be granted settlement after 2 years if applicable conditions are met. Whereas, DL holders are permitted/admitted to remain here only on the condition that their removal is inappropriate, under article 8 grounds, and their position would be reviewed/reassessed in 3 years time in order to determine whether they still qualify for further DL. If at review stage the humanitarian reason(s) vanishes, then the Home Office may require the applicant to leave the UK and apply for correct entry clearance from his/her country of origin. DL is not extended automatically.

It is the main characteristic of DL that it is revocable. The Home Office has full authority to curtail the DL if the relationship ends. (It is also mentioned in the IDI on asylum policy).

Where would your application stand, if made

With this background, when you claim that you should be granted settlement, it implies that you are saying that the provision of bereaved spouse be also applied in marriage based DL cases. Apparently, the rules/policies followed by the HO say that the DL would be curtailed as soon as the relationship ends. However, it is open to argue that the bereaved spouse criteria should also be made available to marriage based DL holders because bereaved spouse provision is based on high human values, dignity and honor. It deletes formal requirements of settlement as soon as the British/settled partner dies; it automatically presumes that the relationship would have never ended if the British/settled had survived, the couple would have met the requirements, however in DL cases, the HO apparently seems unable to apply this approach due to the sole ground that here leave is granted outside the rules and its extension is subject to a positive review.

In my view, you application would not be a baseless application, although there is a strong likelihood that you won’t get a positive decision at initial stages but there is still scope that you might get good results in the end.

Being a lawyer, it is however, my advice if there is no other option available to you to make an application for leave to remain in any other category or you have an adventurous nature, then go into this legal battle.

Home Office & IAS

Remember that the staffs at the Home Office do not give specific advice. They just offer you general advice. They rightly said that if you want to extend your DL, then you should apply on FLR(O) and if you want to apply for settlement then complete SET(O). (this is a general advice and don’t show their incompetence)

IAS is quite competent in their work. They will first assess you financially until you say that you are willing to pay.

#3 Truegal

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Posted 18 September 2008 - 11:09 AM

Although Immigration Rules are laid down before the Parliament however, the English Courts are of the view that those rules are not the "final authority" to determine who is entitled to remain in the UK. As these rules further do not guarantee the protection of fundamental human rights, therefore, the concepts of "Outside Immigration Rules and Discretionary Leave" are still in place.

[b]Difference between DL based on marriage and Spouse LTE/LTR[/b]

There is a clear distinction between DL and 2 years spouse leave to enter/remain. The benefits and privileges attached to the said two types of leaves are also different; such as DL gets converted into ILR after 6 years whereas, spouse LTE/LTR changes into ILR in only 2 years time, nationality is achieved in less time by LTE/LTR holders, bereaved spouse provision is open to spouse LTE/LTR holder etc.

Legitimate Expectation

Spouse LTE/LTR holders are admitted into the UK with a view to settlement meaning thereby that they will be granted settlement after 2 years if applicable conditions are met. Whereas, DL holders are permitted/admitted to remain here only on the condition that their removal is inappropriate, under article 8 grounds, and their position would be reviewed/reassessed in 3 years time in order to determine whether they still qualify for further DL. If at review stage the humanitarian reason(s) vanishes, then the Home Office may require the applicant to leave the UK and apply for correct entry clearance from his/her country of origin. DL is not extended automatically.

It is the main characteristic of DL that it is revocable. The Home Office has full authority to curtail the DL if the relationship ends. (It is also mentioned in the IDI on asylum policy).

Where would your application stand, if made

With this background, when you claim that you should be granted settlement, it implies that you are saying that the provision of bereaved spouse be also applied in marriage based DL cases. Apparently, the rules/policies followed by the HO say that the DL would be curtailed as soon as the relationship ends. However, it is open to argue that the bereaved spouse criteria should also be made available to marriage based DL holders because bereaved spouse provision is based on high human values, dignity and honor. It deletes formal requirements of settlement as soon as the British/settled partner dies; it automatically presumes that the relationship would have never ended if the British/settled had survived, the couple would have met the requirements, however in DL cases, the HO apparently seems unable to apply this approach due to the sole ground that here leave is granted outside the rules and its extension is subject to a positive review.

In my view, you application would not be a baseless application, although there is a strong likelihood that you won't get a positive decision at initial stages but there is still scope that you might get good results in the end.

Being a lawyer, it is however, my advice if there is no other option available to you to make an application for leave to remain in any other category or you have an adventurous nature, then go into this legal battle.

Home Office & IAS

Remember that the staffs at the Home Office do not give specific advice. They just offer you general advice. They rightly said that if you want to extend your DL, then you should apply on FLR(O) and if you want to apply for settlement then complete SET(O). (this is a general advice and don't show their incompetence)

IAS is quite competent in their work. They will first assess you financially until you say that you are willing to pay.


Thank you so much Ansar.

It has been really kind of you to give such a detailed reply, as it seems quit complex as it so far stands. I will make an appointment with the IAS and see what other options are there as, going back to my country of origin will not be the best option, after 9 years in UK and also owing to the changing rules, hence an in country application would be most ideal, hopefully in any other category.

Once again Thank you.
Truegal

#4 Ansar Ahmad

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Posted 18 September 2008 - 08:23 PM

you are welcome..if you don't mind share with us what the ias says to you

#5 Truegal

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Posted 29 October 2008 - 07:33 PM

you are welcome..if you don't mind share with us what the ias says to you


Hi ansar and all.

I spoke to the immigration advice service but no joy, did not even get past the intial financial assessment. ( they wanted a collective evidence of earning from both my partner and I).

I have a big querry though , owing to my situation as outlined above and switching to another category other than, UPV or spouse Visa as I would like to obtain status on my own right. I wonder if I could apply for tier 1 or 2, student, work permit as I am working fulltime and in health sector charitable organisation). CAN I SWITCH? If so, how do I go about it?

Has any one on here had a similar situation as I, and are there any success stories on here about switching categories?

I would really appreciate all your thoughts on this.....Please help?




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