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Urgent Help Required-ILR when delay in travel for 3 mon 1 da

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

go2khurram
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Urgent Help Required-ILR when delay in travel for 3 mon 1 da

Post by go2khurram » Thu Jan 31, 2013 2:58 pm

I will really appreciate, if some one can advise me on my under mentioned query. 

I am currently on Tier 1 General visa. My initial visa was HSMP. Here are details of my case;
 
 
HSMP Entry Clearance Date:  11th April 2008
Date of Initial Entry in UK: 12th July 2008
Extension (Tier 1) visa valid till:  11th April 2013
Number of Dependants: 4
 
Gap between EC date and Initial Entry:  3 months 1 day (92 days)

Time I will Spent in UK until my visa will be expire :   4 years and 9 month (from 12th July 2008 to 11th April 2013)

As I mentioned above, my gap between entry clearance date and initial entry is 92 days. This is just 2 days more than then limit mentioned in "Indefinite leave to remain - calculating continuous period in UK "

My question is ..Is there any way efore 28 days of expiry of my current visa can I apply for ILR?  Because the time i will spend in UK until the end of my current visa will be 4 year and 9 months and this is the exact requirement if someone enter within 90 days.  

Or i have to take another extension

Please advise...

wpilr_nov12
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Post by wpilr_nov12 » Thu Jan 31, 2013 3:06 pm

Your delay is 91 days, so technically you have EXCEEDED the 90 day grace period.

Maybe try your luck by booking PEO appointment at Solihull using your 5 yr qualifying period to start from EC date. Worst case - you will be asked to extend your current leave.
Please do not send me PM if I haven't sent you one yet.
My ILR, MN1 and kids PP stories.

go2khurram
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Post by go2khurram » Thu Jan 31, 2013 4:23 pm

wpilr_nov12 wrote:Your delay is 91 days, so technically you have EXCEEDED the 90 day grace period.

Maybe try your luck by booking PEO appointment at Solihull using your 5 yr qualifying period to start from EC date. Worst case - you will be asked to extend your current leave.
Thanks for your reply....
Are you suggesting to enter the EC Date where we suppose to enter the actual entry date in the SET(O) form...

cs95tdg
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Post by cs95tdg » Thu Jan 31, 2013 4:51 pm

I don't believe that's what's being suggested here, as you need to fill the form truthfully and clearly your passport visa vignette or BRP will state what your actual EC date was.

If I've understood wpilr_nov12 correctly, he is suggesting that you try an in-person application at Solihull PEO, to see if the CW will consider the time between EC & date of first entry towards your 5 year residence, even though your first entry doesn't exactly fit the 3 month late entry time period allowed according to the guidance. Unlike other PEO's they appear to assess your application before taking payment, so if you don't qualify then they will tell you beforehand and suggest what you should do. E.g. apply for a T1G extension or apply by post to cover the gap.

wpilr_nov12
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Post by wpilr_nov12 » Thu Jan 31, 2013 4:52 pm

go2khurram wrote: Thanks for your reply....
Are you suggesting to enter the EC Date where we suppose to enter the actual entry date in the SET(O) form...

NO.
Please do not send me PM if I haven't sent you one yet.
My ILR, MN1 and kids PP stories.

go2khurram
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Post by go2khurram » Thu Jan 31, 2013 4:57 pm

cs95tdg wrote:I don't believe that's what's being suggested here, as you need to fill the form truthfully and clearly your passport visa vignette or BRP will state what your actual EC date was.

If I've understood wpilr_nov12 correctly, he is suggesting that you try an in-person application at Solihull PEO, to see if the CW will consider the time between EC & date of first entry towards your 5 year residence, even though your first entry doesn't exactly fit the 3 month late entry time period allowed according to the guidance. Unlike other PEO's they appear to assess your application before taking payment, so if you don't qualify then they will tell you beforehand and suggest what you should do. E.g. apply for a T1G extension or apply by post to cover the gap.

Quick question can we apply by post to cover this gap...even apply post is not required that you have to qualify on the date of the application...i know it took 6 months if i apply by post so i will be qualify anyway on the day my case will be considers ...but as per rule can i apply by post before qualifying ...

wpilr_nov12
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Post by wpilr_nov12 » Thu Jan 31, 2013 5:00 pm

Thanks cs95tdg, I wish I was as eloquent (if that is the right word) as you are. And we have covered same mileage today.
Please do not send me PM if I haven't sent you one yet.
My ILR, MN1 and kids PP stories.

cs95tdg
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Post by cs95tdg » Thu Jan 31, 2013 7:53 pm

go2khurram wrote:even apply post is not required that you have to qualify on the date of the application...
No, it is the date that they actually consider your application that matters. As there is a delay in the length of time it takes to process postal applications, you could gain some time towards your 5 year residence by applying by post. In order to get this benefit, you would need to apply closer towards your T1G LTR expiry date. Note however that the exact time taken for processing a application may vary over time and is therefore a unknown. The key problem most people have with this approach is that they need to travel and hence cannot have their passport and BRP tied-up for that length of time. However if you have no overseas travel plans in the near future, this may be a suitable option for you.

A couple of facts: The UKBA only consider any application after submission of Biometrics. You will be covered by S3C from the date of expiry of your current LTR to the decision date if the UKBA don't make a decision on your application before your current LTR expires.

wpilr_2012, glad to help. And yes it appears that we have covered the same mileage today.

zahid.ali.anwar
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Post by zahid.ali.anwar » Fri Feb 01, 2013 2:57 am

I think the advice given by cs95tdg is best and must be considered at the time of taking any decision.

You are lucky that home office is taking six month while deciding postal applications. Otherwise, you might have to go for Tier 1 Entension and then ILR or may be tricky process of Variation of Leave.

There is no chance that you will get ILR through PEO even Solihull. I am discussing my personal experiance. It was once of the fellow sitting right next to me in PEO Solihull. He was 3 months and 10 days late. No mercy by case workers.

So best is postal application.
The question is... to be or not to be....

go2khurram
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Post by go2khurram » Fri Feb 01, 2013 10:58 am

cs95tdg wrote:
go2khurram wrote:even apply post is not required that you have to qualify on the date of the application...
No, it is the date that they actually consider your application that matters. As there is a delay in the length of time it takes to process postal applications, you could gain some time towards your 5 year residence by applying by post. In order to get this benefit, you would need to apply closer towards your T1G LTR expiry date. Note however that the exact time taken for processing a application may vary over time and is therefore a unknown. The key problem most people have with this approach is that they need to travel and hence cannot have their passport and BRP tied-up for that length of time. However if you have no overseas travel plans in the near future, this may be a suitable option for you.

A couple of facts: The UKBA only consider any application after submission of Biometrics. You will be covered by S3C from the date of expiry of your current LTR to the decision date if the UKBA don't make a decision on your application before your current LTR expires.

wpilr_2012, glad to help. And yes it appears that we have covered the same mileage today.
Thanks guys ..Much appreciate for your response and help … I can see a bit light at the end of tunnel now 

But worried again after reading this on ukba website………

“Please do not send us your application more than 28 days before you become eligible to apply. If you do, we may refuse your application with no refund of the application fee (if a fee is charged for your application type). However, you must make your application before your current permission to stay in the UK expires.”
http://www.ukba.homeoffice.gov.uk/visas ... ettlement/

Confused now…

cs95tdg
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Post by cs95tdg » Fri Feb 01, 2013 11:03 am

I'm not entirely sure why this particular piece of information would confuse you. If you intend to apply by post, you should apply closer to your current LTR expiry date anyway. I.e. not before 28 days of LTR expiry. So unless I'm missing something, this is a non issue for you.

Those applicants who apply in persion should not book an appointment for more than 28 days before the 5th anniversary of their residence (i.e. ILR eligibility date).

go2khurram
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Post by go2khurram » Fri Feb 01, 2013 3:43 pm

cs95tdg wrote:I'm not entirely sure why this particular piece of information would confuse you. If you intend to apply by post, you should apply closer to your current LTR expiry date anyway. I.e. not before 28 days of LTR expiry. So unless I'm missing something, this is a non issue for you.

Those applicants who apply in persion should not book an appointment for more than 28 days before the 5th anniversary of their residence (i.e. ILR eligibility date).
Thanks again for reply... The thing which confuse me is the world “date of application” in ILR-Calculating continuous period in UK. This is what mentioned in the guideline.
The specified continuous period is counted backwards from the date of the ILR application. For example, if the date of application is 11 November 2012, the consecutive periods would be as follows:
Year 1
11 November 2012
to 10 November 2011
Year 2
11 November 2011
to 10 November 2010
Year 3
11 November 2010
to 10 November 2009
Year 4
11 November 2009
to 10 November 2008
Year 5
11 November 2008
to 10 November 2007

Source: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

If the case work take the date of application as when the actual application was sent to HO then I will be in trouble but if the case worker calculate on day of decision then its absolutely fine .... I am not sure is there any guideline available for caseworker about the "date of application".

cs95tdg
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Post by cs95tdg » Fri Feb 01, 2013 3:52 pm

go2khurram wrote:If the case work take the date of application as when the actual application was sent to HO then I will be in trouble but if the case worker calculate on day of decision then its absolutely fine .... I am not sure is there any guideline available for caseworker about the "date of application".
Here you are now referring to your absences, which you haven't mentioned up until now. You appear to be suggesting that you have an excessive number of absences in your last year or more. You will need to elaborate further for anyone to be able to comment, as at the moment all I would be able to do is guess what additional aspects need to be considered. I.e. to determine the most suitable course of action (I.e. postal ILR application, T1G extension, or T1G extension and then ILR variation) you would need to share your application background in detail. E.g. absences. If you have additional complications such an excessive number of absences, you may very well need to go for a T1G extension, but I'm unable to comment on this, based on the information you have shared up until now.

go2khurram
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Post by go2khurram » Fri Feb 01, 2013 5:24 pm

cs95tdg wrote:
go2khurram wrote:If the case work take the date of application as when the actual application was sent to HO then I will be in trouble but if the case worker calculate on day of decision then its absolutely fine .... I am not sure is there any guideline available for caseworker about the "date of application".
Here you are now referring to your absences, which you haven't mentioned up until now. You appear to be suggesting that you have an excessive number of absences in your last year or more. You will need to elaborate further for anyone to be able to comment, as at the moment all I would be able to do is guess what additional aspects need to be considered. I.e. to determine the most suitable course of action (I.e. postal ILR application, T1G extension, or T1G extension and then ILR variation) you would need to share your application background in detail. E.g. absences. If you have additional complications such an excessive number of absences, you may very well need to go for a T1G extension, but I'm unable to comment on this, based on the information you have shared up until now.

Apologise for the confusion, the purpose of refereeing this section was to understand the definition of “date of ILR application”. In my case I have the only 1 issue which is gap between EC and initial entry ( as describe in initial post) . I have no absence more than 15 days and I was not out of country since last 18 months.

cs95tdg
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Post by cs95tdg » Fri Feb 01, 2013 6:14 pm

If what you say is true, then all I can say is that again the date of application is not significant. The reason is because, if you meet the annual absence threshold at the time/date of your postal application, there is no way you can exceed it after you post the application. I.e. because you will be present in the UK from that day onward.

Note that your late entry here will not be an absence as absences are counted from the time you first enter the UK. Your 5 year residency in this case begins from that date, as you entered more than 3 months after EC.

go2khurram
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Post by go2khurram » Tue Feb 05, 2013 10:49 am

cs95tdg wrote:If what you say is true, then all I can say is that again the date of application is not significant. The reason is because, if you meet the annual absence threshold at the time/date of your postal application, there is no way you can exceed it after you post the application. I.e. because you will be present in the UK from that day onward.

Note that your late entry here will not be an absence as absences are counted from the time you first enter the UK. Your 5 year residency in this case begins from that date, as you entered more than 3 months after EC.
Thanks again for your reply.
I also sent this question to settlement team and got the following response:
--------
Dear Sir,

I cannot provide immigration advice, but I can confirm that if an applicant has delayed their entry to the UK by more than 90 days, even if this was by only an additional 1 day, then it would be the date of entry to the UK that is considered the start of the continuous period for ILR.

It is true that applications submitted via post can take up to 6 months to decide, as per our service delivery standards, and the continuous period will be counted backwards from the date of application. If however whilst awaiting decision, the applicant has reached or exceed the required 5 year period, the application would not fall for refusal as they would be considered to have met the requirement.

It is up to the individual as to whether or not they decide to submit a postal application in such circumstances, as there is a chance that is would be decided before the 5 year continuous period had been reached.

Applicants who are granted a further extension of leave to remain can submit a settlement application as soon as they have completed the 5 year continuous period, and do not have to wait until their new period of leave expires.

I trust his answers your questions.

Regards

Ann

----
My question was:


Dear Sir,

It would highly appreciated if you could reply me on the below mentioned query.

I am currently on Tier 1 visa which is going to expire in Mid April 2013. Difference between my EC and Date of Entry in UK is 3 Months and 1 day.

I understand that there home office can disregard the 90 days late entry but as I mentioned my entry is 92 days late. In this case my understanding is that I cannot apply using the PEO same day service because caseworker might not disregard my addition 2 days late entry. Let me correct if I am wrong.

My question is, In this case can I apply for ILR using the postal service considering the fact that decision based on postal application will take few months and I will definitely be eligible at the time when my ILR application will be considered by the caseworker.

Or Do I need to apply for further extension? If so , If I apply for extension can I switch my application from Tier 1 (FLR) to ILR as soon as I qualify for the ILR and my application is still with the home office with the same application fee.

I hope you will provide me detail guideline regarding this.


Thanks
Khurram

go2khurram
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Post by go2khurram » Tue Feb 05, 2013 10:54 am

Do they perform any pre-check before sending the cases to biometric team or the actual case worker to check the eligibility of the application?

or in worst case scenario if they refuse the application (within 2 months time) will HO gives right of appeal or right to re-apply?

thanks

wpilr_nov12
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Post by wpilr_nov12 » Tue Feb 05, 2013 10:56 am

wpilr_nov12 wrote:Your delay is 91 days, so technically you have EXCEEDED the 90 day grace period.

Maybe try your luck by booking PEO appointment at Solihull using your 5 yr qualifying period to start from EC date. Worst case - you will be asked to extend your current leave.
Please do not send me PM if I haven't sent you one yet.
My ILR, MN1 and kids PP stories.

cs95tdg
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Post by cs95tdg » Tue Feb 05, 2013 11:44 am

go2khurram wrote:Do they perform any pre-check before sending the cases to biometric team or the actual case worker to check the eligibility of the application?

or in worst case scenario if they refuse the application (within 2 months time) will HO gives right of appeal or right to re-apply?
1) Applications are only assessed after biometric are done.
2) You will ge the right to appeal if your current LTR has expired on the date a decision is made to refuse your ILR. (i.e. if that happens)

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Post by go2khurram » Tue Feb 26, 2013 5:19 pm

thanks cs95tdg

vinny
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Post by vinny » Tue Feb 26, 2013 6:36 pm

You are just over the 3-month entry concession, if applicable (update Q4).

Option 1. You may apply by registered post for an extension shortly before leave expires. It's possible to vary (not withdraw) this application to ILR when you are eligible, if it's still undecided.
Applications wrote:A person who varies their application does not have to pay an additional fee unless the new ground they want to be considered under has a higher fee than their original application. In this case, they must pay the difference between the original fee and the new higher fee.

This means a valid variation will look like a new application. You must check CID to see if an earlier application exists. This will tell you whether the specified form is a variation of an existing application.
Option 2. You may apply by registered post for an ILR shortly before leave expires. If you are eligible on the date of the decision, then you should be ok.
Last edited by vinny on Wed Dec 04, 2013 10:04 pm, edited 3 times in total.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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go2khurram
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Post by go2khurram » Tue Feb 26, 2013 8:29 pm

vinny wrote:You are just over the 3-month entry concession.

Option 1. You may apply by registered post for an extension shortly before leave expires. It's possible to vary (not withdraw) this application to ILR when you are eligible, if it's still undecided.
Applications wrote:A person who varies their application does not have to pay an additional fee unless the new ground they want to be considered under has a higher fee than their original application. In this case, they must pay the difference between the original fee and the new higher fee.
Option 2. You may apply by registered post for an ILR shortly before leave expires. If you are eligible on the date of the decision, then you should be ok.

Thanks vinny for the brief reply.


Against Option 2, I have supplementary questions

a. On the decision date do I qualify before 28 days of 5 year completions or I have to have complete 5 years for qualification

b. In the worst case scenario like if the date of decision is before my eligibility then application will be refused, in that case is the HO will give me chance to submit another (FLR or IRL) application depending the time of refusal.

c. What are the acceptable tactics to buy time e.g payment by cheque, missing biometric appointment etc.

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Post by vinny » Tue Feb 26, 2013 9:31 pm

Do click on given links above for more details.

a. Technically, you will qualify when you successfully complete your qualifying period. However, the UKBA states that you may send your (valid) application for ILR no sooner than 28 days prior to the completion of your qualifying period.

b. I don't know.

c. Missing the biometrics appointment may make the application invalid.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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zahid.ali.anwar
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Post by zahid.ali.anwar » Tue Feb 26, 2013 10:39 pm

This is exactly, what I have told you. Stay calm and everything will be sorted. Just pray they don't change the process/rules at the very last minute.
vinny wrote:You are just over the 3-month entry concession.

Option 1. You may apply by registered post for an extension shortly before leave expires. It's possible to vary (not withdraw) this application to ILR when you are eligible, if it's still undecided.
Applications wrote:A person who varies their application does not have to pay an additional fee unless the new ground they want to be considered under has a higher fee than their original application. In this case, they must pay the difference between the original fee and the new higher fee.
Option 2. You may apply by registered post for an ILR shortly before leave expires. If you are eligible on the date of the decision, then you should be ok.
The question is... to be or not to be....

go2khurram
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Post by go2khurram » Tue Feb 26, 2013 11:09 pm

zahid.ali.anwar wrote:This is exactly, what I have told you. Stay calm and everything will be sorted. Just pray they don't change the process/rules at the very last minute.
vinny wrote:You are just over the 3-month entry concession.

Option 1. You may apply by registered post for an extension shortly before leave expires. It's possible to vary (not withdraw) this application to ILR when you are eligible, if it's still undecided.
Applications wrote:A person who varies their application does not have to pay an additional fee unless the new ground they want to be considered under has a higher fee than their original application. In this case, they must pay the difference between the original fee and the new higher fee.
Option 2. You may apply by registered post for an ILR shortly before leave expires. If you are eligible on the date of the decision, then you should be ok.

Thank you zahid bahi,

I believed what you said :)

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