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UKSolicitorJA, Solicitor
Category: Immigration Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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My wife was granted 2 year spouse Visa (27 month) in 2011 before

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My wife was granted 2 year spouse Visa (27 month) in 2011 before rules changed in 9th July 2012, and it had expired on 3rd Feb. I believed after the Visa expiration provided she had met all the requirements she would have qualify for settlement. Recently we have made an application for an extension of stay as she had failed Life in UK test and they have refused on the grounds that because we have stated in additional information part that she has failed life in UK, otherwise she would have qualified for settlement. They have used this statement as a basis for refusal and stated that this reason i.e. extension so that she take life in UK to qualify for settlement is not covered under immigration rules.
They have refused: appendix FM, Paragraph 322. In addition to the grounds for refusal of extension of stay set out in parts 2-8 of these rules. The grounds on which leave to remain and variation of leave to enter or remain in the United Kingdom are to be refused.
(1) the fact that variation of leave to enter or remain is being sought for a purpose not covered by these rules.

They have stated that they have considered Article 8 of the European Convention on Human rights – with the rights to private and family life. It is stated that because we have indicated that we wish to have an extension of leave in the UK to complete life in UK test so that she can submit a SET (M) and apply for indefinite leave to remain in the UK. These circumstances are not considered exceptional enough to grant of leave outside the immigration rules. Therefore the application is refused under Paragraph D-LTRP 1.3 with reference to R-LTRP 1.1 (c) and (d), Paragraph 276CE with reference to paragraph 276ADE (1) (iii) - (vi) of HC 395 as amended.

I have noticed that we have applied for an extension using the wrong form (FLR (O)). Home office acknowledged that our application was invalid and asked us complete section 4 and 6 of FLR (FP) immediately- we complied but I believe this is also a wrong form as the new rules introduced in 9th July 2012 are not applying to us. Therefore, we were supposed to apply for an extension using FLR (M). If you read the guidance notes, it says we can use this form to apply for an extension if you have qualified for indefinite leave to remain but you do not met the language or Life in UK requirement. Please see the guidance notes, on second page, notes 2 qualifying for an extension of stay. -

What is the best option?
(A) Appeal
(B) Submit FLR (M)

Visa expired on 3 Feb, refusal it has been received on 9th March and deadline is 21st March. Do we have the right to resubmit the correct form – FLR (M)? or will the same rules apply? Even though guidance notes states that you can apply if you have failed Life in UK and you qualify for settlement.

I would appreciate some assistance. Many thanks.

Yes, you should have applied of form FLR(M), not FLR(O) which is why the application was refused.

As her original visa has now expired by more than 28 days, the situation has become more complicated.

I would suggest that she re-applies on form FLR(M) stating that she previously applied on the incorrect form and was wrongly advised by the Home Office to apply on form FLR(FP) when she should have been advised to apply on form FLR(M).

FLR(M) allows for extensions to sit the Life in the UK test.

I would expect discretion to be exercised in her favour as she has tried to comply with immigration rules by submitting an in time application albeit the incorrect one (FLR(O).

There is no point in appealing as the original refusal is correct, FLR(O) was the incorrect application.

Hope this helps
Customer: replied 4 years ago.

Thank you for your response.


Where can I can find such documents to show that we qualify under the old rule? I will need this as a proof, as it may not be common knowledge for every case officer. I believe if it was clear from the beginning the case worker would not have asked us to fill FLR FP, after we had already made a mistake with FLR O - it could be that the case worker thought we qualify under the 10 year route, hence the FLR (FP) .

When I apply again using FLR (M) I will need to indicate to the case worker that the application falls under the category of old rule - any immigration document to support this? Otherwise, they are not going to believe us without any proof.

Another issue- We have been given the right to appeal...but as you said there is no point. Can the refusal be postponed or temporary stopped until we apply using the correct form FLR M and what if the deadline for appeal passed without us making an appeal, as we will make application re-submission - what would happen to the refusal/appeal? The refusal will continue to stand? and what will be the consequences for not appealing?

Many thanks.

As soon as you lodge a fresh application on form FLR(M), no action can be taken against your wife until the new application is decided.

If no appeal is lodged, the FLR(O) application will simply show as refused (correctly) in the Home Office record of your wife's immigration history.

See here for proof that the old rules apply in your wife's case:

All the best
Customer: replied 4 years ago.

I am planning to lodge new fresh application using the FLR (M) immediately. Will I need to write a cover letter to explain the situation? what are your recommendations?


Another issue - Is it possible that the old rule might not apply to us because we are submitting FLR (M) when the Visa has already expired, and /28 days has passed?


Many thanks.

Yes, you should write a covering letter explaining everything and asking for discretion to be exercised favourably due to the previous incorrect advice and application.

I am of the opinion the old rules still apply as the original application was made under the old rules.

All the best -please leave feedback
Customer: replied 4 years ago.

Hi, Thanks your for your response.


I need some help to understand the paragraph below. I have read the immigration rules and I do not know how the caseworker has interpreted and applied the following paragraphs.



They have refusal is based on: appendix FM, Part 9, Paragraph 322. In addition to the grounds for refusal of extension of stay set out in Parts 2-8 of these rules. Does this mean the applicant is also refused according to immigration rules from Part 2, 3,4,5,6,7,8 ? I understand some of these part are not applicable


Does this mean we are also refused because we didn't meet the requirement of Part 2 - 8?


Please see immigration rules of Part 2-8 here -

Part 2 - seeking to remain as visitor (not applicable)

Part 3 - seeking to remain for studies (not applicable)

Part 4 - seeking to remain for placement (not applicable)

Part 5 - seeking to remain for employment (not applicable)

Part 6 - seeking to remain for business/self employment, investor etc (not applicable)

Part 7 - other (access to child, retired person,long residence, private life, HM Forces EEA Nationals and their families) .(not applicable)


Part 8 - seeking to remain as family member - I believe we meet the all the requirements of part 8.


I don't understand - how she can generalise the refusal without point to a specific paragraph of refusal or a reason. Is the caseworker allowed to user Part 9 of general refusal, paragraph 322 without first to systemically consider previous parts such part 8?


Even though we have used the wrong form, I feel that the paragraph below is incorrectly applied - what does it indicate?


Your application has been refused under paragraph D-LTRP 1.3 with reference R-LTRP 1.1 (c) and (d), paragraph 276CE with reference to paragraph 276ADE (1) (iii) - (vi) of HC 395 as amended.

Many thanks.
I am afraid I will have to opt out as you have not left any rating.
Customer: replied 4 years ago.
Relist: Incomplete answer.
The answer is incomplete as it does not explain the law it has been used. I still have doubts on the questions I have asked. I am not satisfied with the answer, thus I haven't provided any rating as yet.

Section R-LTRP of Appendix FM provides as follows:

1.1(b) "the applicant must have made a valid application for limited....leave to remain as a partner...."

In your wife's case, a valid application was not made as the incorrect form was used FLR(O) and the reason given for the extension was for her to pass the Life in the UK test.

I am afraid you are now relying on the discretion of the Home Office when submitting the out of time FLR(M) application and with respect, you are focusing too much on the technical rules when the Home Office is being asked to accept the FLR(M) application outside the rules.

Hope this helps. This is only a Q&A site and if you require specialist further assistance, you may wish to appoint a solicitor.

Hope this clarifies.

Customer: replied 4 years ago.

Hi, thank you for getting back.


I fully understand this is only Q&A site and it cannot be taken as a substitute for a solicitor consultation. I am trying to cover all the basis and to be clear, as I have already spoke to many solicitors - 90% have suggested to submit the form again (their fee to check the form is between £350-£800) 10% have advised to appeall (their fees is £1000 - £2500). The issue which it has arised here, as you have noticed yourself we have missed the 28 days window due to document request process, which it was based on wrongly advise. Here now we assume they might exercise discretion - it is 50/50. If they do not exercise the discretion and she didn't appeal she will face removal because she didn't appeal. Now, we have seen that the refusal is deemed to be correct given the incorrect form that was submitted - I am not a lawyer but I believe we can provide argument about how the application was handled due wrong advise, as we have complied immediately to their request not knowing it was wrong form, second the case worker as a trained immigration professional should have realise this and not make an assumption or decision on our behalf as she was under impression we fall under the 10 year route.


I wanted to understand a bit more about the technical area to be able to provide comprehensive argument to cover all the basis - The appeal is one stop warning to provide any other grounds. We have decided to submit the form and also to appeal, as appeal is the only thing that will legally allow her to stay in the country now that her visa has expired NOT to rely whether the caseworker might exercise discretion; if she does not it will be even more complex matter and they treat the case as an over stay.


I hope know you understand my reason to get technical.


I hope this will be my last question - is there a law, policies or procedures that you or anyone else is aware, that if you submit wrong form you will face a removal from the country?


Many thanks.

Submitting the wrong form means an incorrect application has been made which leads to refusal of further leave to remain as you saw in your wife's case.

The person refused leave to remain who does not leave the UK becomes an immigration offender eventually and therefore may be forcibly removed from the UK. This happens every day.

Hope this clarifies and I have a good feeling about your wife's case.
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