Immigrationboards.com

Hi,

I would appreciate people's advice on my situation, I am going to apply
for my ILR in Feb/Mar-2012 but not sure exactly when? I could not find
anything clear on UKBA website

My visa expiry on 15th Feb-2012 but I landed on 23rd March so 5 years
from date of landing expiring on 23rd March-2012, approx. 36 days
difference between these dates!!

If I apply 28 days before 15th Feb, do I get qualified?
If I apply 28 days before 23rd Mar, what about my legitimate stay after
visa expiry date (e.g.after 15th Feb!!)

Thanks

Because the gap in Visa expiry and landing is less than 90 days, that time can be counted towards the 5 years. You should apply 28 days before your visa expiry ie sometime in Jan 2012.

regards
SKT

if your landing date is less than 28 days from your visa issue date, it is the landing date that is taken into consideration, and your 5 years starts from that date.

if you go on the earlier date, the visa officer has every right to deny your visa and ask you to make a fresh application after the correct time.

zap wrote:Hi,

I would appreciate people's advice on my situation, I am going to apply
for my ILR in Feb/Mar-2012 but not sure exactly when? I could not find
anything clear on UKBA website

My visa expiry on 15th Feb-2012 but I landed on 23rd March so 5 years
from date of landing expiring on 23rd March-2012, approx. 36 days
difference between these dates!!

If I apply 28 days before 15th Feb, do I get qualified?
If I apply 28 days before 23rd Mar, what about my legitimate stay after
visa expiry date (e.g.after 15th Feb!!)

Thanks

The 90 days concession between the visa grant date and landing date is the discretion of the CW and not a Rule, so keep that in mind.

How do you define at the discretion of the CW? Are you suggesting that if your case is assigned to Bert (who inclines to leniency) rather than Ernie (who inclines to strict adherence to the rules), one might not be granted? The guidance says that it is permitted for this concession to be applied and I can't see under what circumstances it would not be, assuming the rest of the application met the rules.

Lucapooka wrote:How do you define at the discretion of the CW? Are you suggesting that if your case is assigned to Bert (who inclines to leniency) rather than Ernie (who inclines to strict adherence to the rules), one might not be granted? The guidance says that it is permitted for this concession to be applied and I can't see under what circumstances it would not be, assuming the rest of the application met the rules.

What does the guidance say? as far as i know it uses a word called "may" and that means discretion. if it was truly a rule shouldnt it say that the gap of 90 days will be ignored provided applicant meets all other applicable criteria!

From UKBA Site:

Applications that fall short of the five year continuous period
In some cases, applicants may have been granted five years continuous leave, but will not
have spent five years continuously in the UK before their current leave expires.
Caseworkers may count the period between entry clearance being granted and the date the
applicant entered the UK towards the five years, provided this period was not longer than
three months

This is a case of may be or may not be, nothing definite as xyz123 said.

No, there is nothing discretionary about this concession. You have to bear in mind that guidance notes are instructions to the caseworker; they are not information for the applicant offering speculations about how their application might be considered. May used here has the same significance as to be at liberty or have the power. This should not be confused with other uses of may that signify something that is not certain. For example: It may rain later and, if it does, you may use my umbrella is referring to something that might happen but if it does you have express permission to borrow my property.

Where is states caseworkers may count you can readily substitute the caseworker is permitted to count, has the power to count, is at liberty to count . Meaning he does not need to seek permission from a superior to perform this operation rather than, as you are suggesting, he might arbitrarily decide whether to do so or not. The former is in line with internal guidance giving instructions to caseworkers and the latter would be in line with general information for the applicant speculating on the outcome. Do you see the difference?

I have also checked with a very reputable solicitor firm. Lucapooka's interpretation is the correct one.

[quote="chosenaik"]I have also checked with a very reputable solicitor firm. Lucapooka's interpretation is the correct one.[/quote]

Thanks to all guys for your valuable thoughts, this has become an interesting
debate now, and I strongly believe this would definatenly help to other
people in boat. Does anyone have HO email id to send this enquiry to? I will
then check with HO only to to get certain answer. Thanks