Bad form

Using the wrong immigration application form can have far-reaching consequences.

I was recently instructed by a client whose application to remain in the UK with his British citizen partner had been refused.

The basis for the refusal was that he did not meet the requirements of Appendix FM of the Immigration Rules with reference to paragraph EX.1.

Paragraph EX.1. is a useful paragraph for many applicants. If you do not meet the minimum income requirement for a partner application, you can still be granted leave to remain in certain circumstances if you have a British citizen child, or if there would be “insurmountable obstacles” to you and your partner living together outside the UK.

Unfortunately, in my client’s case, EX.1. was no help. There were no “insurmountable obstacles” to him and his wife living together outside the UK, and they do not have any children.

Not only had the Home Office refused his application; they had also “certified” it as “clearly unfounded”. This meant that he could not appeal to the Tribunal. It also meant that his leave to remain in the UK finished on the date he received the decision, and could not be revived.

However, my client was puzzled by the refusal. He insisted he met the income requirements, and he had sent the correct evidence of his and his wife’s salary to the Home Office.

The problem turned out to be the form he had used. Applicants for leave to remain in the UK on the basis that they meet the minimum income and English language requirements are meant to apply under the “5-year route to settlement” using form FLR(M).

My client had applied on FLR(FP): this is the application form for people who are applying under the “10-year route”.

If you submit your application on form FLR(M) and you do not meet the income or language requirements under the Immigration Rules, the Home Office will automatically proceed to consider whether you meet the requirements of paragraph EX.1. or paragraphs GEN.3.1. or 3.2. (exceptional circumstances). However, if you submit your application on form FLR(FP), then your application will only be considered based on EX.1. and GEN.3.1./3.2. You can “trade down” but you can’t “trade up”.

The Home Office does have discretion under paragraph 34B of the Immigration Rules to notify an applicant if their application is invalid, which includes where they have used the “wrong” application form. However, the Home Office approach to applications for review in these cases indicates that they do not see use of FLR(FP) as “wrong”, but merely a matter of an applicant’s choice.

We applied for judicial review of the certification decision, on the basis that it would be the Tribunal could quite reasonably find that the refusal was a breach of my client’s Article 8 rights given that he met the substantive requirements of the Immigration Rules under the 5-year route. In the event, the Home Office agreed withdraw and remake their decision before the permission stage.

To some extent this problem in family applications should be cured by the use of the online application form, which asks applicants from both the old FLR(M) and FLR(FP) pathways explicitly whether an applicant can meet the financial requirement. However, applicants should be on their guard when selecting their online application pathway, as the implications of submitting the wrong form remain serious.



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