ILR rejected due to 'early' application

Hi,

If anyone could help it would be much appreciated!

My wife is an American citizen who moved to the UK on May 29, 2012. We were married on September 21st, 2012 and then had a Leave to Remain visa granted on February 19 2013. After the time it took to process that visa, we decided to take the fast track for the ILR and booked our appointment for today. This was based on the advice given in the literature that came with the original visa that said, "... you must have completed a period of two years in the United Kingdom as the spouse." Bearing in mind the chronology of the events above, my wife would appear to qualify.

Nevertheless, our application has been rejected out of hand on the grounds that the two year period only began on the date her current visa was issued. The legal justification for this is apparently contained within the following paragraphs:

 "The requirements for indefinite leave to remain for the spouse or civil partner of a
person present and settled in the United Kingdom are that:
(i) (a) the applicant was admitted to the United Kingdom for a period not exceeding 27
months or given an extension of stay for a period of 2 years in accordance with
paragraphs 281 to 286 of these Rules and has completed a period of 2 years as the
spouse or civil partner of a person present and settled in the United Kingdom."

Please could someone explain whether they were right to reject her application, given that my wife does appear to meet the requirements outlined above. This appointment cost us £1500, and the only thing we managed to secure was the kindly assurance that we'll have the opportunity to pay that amount all over again in February. Right now, it feels as though we have been robbed!

Many thanks in advance for the advice.

Best regards,

Michael

Unfortunately, UKVI is correct.  The earliest you can apply is 28 days before the expiry of FLR(M).  If her FLR(M) was granted 19 Feb 2013, it should expire on 19 Feb 2015.  So in your case, the earliest you can apply will be 28 days before 19 Feb 2015.  So, you're looking at mid/late January next year.

Essentially, she was granted an extension of stay for 2 years on 19 Feb 2014, but has not completed that period of 2 years on her new visa at this point.

This is copied from the SET(M) guidance notes:

2. Qualifying For Indefinite Leave To Remain

To qualify for indefinite leave to remain in one of the categories for which you must use form SET(M), you must satisfy the requirements set out in Part 8 of the Immigration Rules, which are on our website.

One of the requirements is that you have to complete 2 years’ leave to enter or remain as the partner of the person named in your application. That period runs from

- the date on which you entered the UK with a visa in the relevant category; or, if you did not enter the UK with such a visa, from

- the date on which you were first granted leave to remain in the UK in the relevant category.

You would fall into the second category.

ETA:  Link here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/343324/SET_M__guidance_notes_08-14.pdf

Hi Aquila,

Thanks for clarifying that - much appreciated. Ouch, looks like it's an expensive lesson in paying attention to detail for us ...