1 day short of ILR- date of variation question

hereorthere · Post by **hereorthere** » Thu Nov 22, 2018 4:37 pm

Hi all,

My husband is short literally 1 day on his Tier 2 dependent visa to apply for ILR (thank you Home Office)- even when using the 28 day rule. As he needs to travel for work, a postal application is not an option and we will need to apply for a Tier 2 extension with a variation to ILR to cover the 1 day gap.
My question is around what is the earliest date that he can vary the application. I am going under the assumption that with the new system, the date of application is the date of online submission.

The relevant dates are:

Date of initial visa issue: 12 February 2014
Date of entry to UK: 15 February 2014
5 year qualifying period ends: 12 February 2019 (from visa issue)
Date of eligibility for ILR (using 28 day rule): 15 January 2019
Date of visa expiry: 14 January 2019

The Home office states in the guidance for varying applications that "where an application is varied, the application date remains the date of the original application". This becomes an issue for varying the application because it then seems to me as if the 28 day period cannot be used to calculate
the qualifying period. This is because the guidance on the qualifying period states:

"You must calculate the relevant qualifying period by counting backward from whichever of the following is most beneficial to the applicant:
• the date of application
• the date of decision
• any date up to 28 days after the date of application"

So, in our case, if we applied for Tier 2 extension on 13 January 2019 and then varied the application on 15 January 2019 and the application was decided the same day, my husband would not be eligible under any of the three categories above, since the calculated qualifying periods would be:

• 5 years prior to the date of application - this would be 13 January 2014, before the initial visa issue
• 5 years prior to the date of decision - this would be 15 January 2014, again before the initial visa issue
• 5 years prior to any date up to 28 days after the date of application - this would be 10 February 2014 (using 13 January 2019 as the application date), once again before the initial visa issue

It seems from this that our only option is to wait until 12 February 2019 to vary the application and forget about the 28 day period, so that the decision date falls a full 5 years after the initial visa issue date. Is this correct thinking, or have I misunderstood the guidance?

Thanks for any help you can give.

vinny · Post by **vinny** » Thu Nov 22, 2018 11:26 pm

Currently, he is apparently ineligible to vary his application at a Premium Service Centre. Not sure if this will still be the case with the new System at that time.

vinny · Post by **vinny** » Thu Nov 22, 2018 11:35 pm

What if he applies for ILR shortly before his leave expires and makes an appointment for the decision after 12 Feb 2019?

hereorthere · Post by **hereorthere** » Fri Nov 23, 2018 9:55 am

vinny wrote: ↑
Thu Nov 22, 2018 11:35 pm
What if he applies for ILR shortly before his leave expires and makes an appointment for the decision after 12 Feb 2019?

The date of application under the new system is the date of online submission, so he will not be able to apply before his leave expires as he will not yet be eligible for ILR (it will be at best 29 days before the qualifying period ends).

hereorthere · Post by **hereorthere** » Fri Nov 23, 2018 10:49 am

Sorry I misread your response Vinny. I think that might work- thank you!

SAMISPOUSAL · Post by **SAMISPOUSAL** » Sat Nov 24, 2018 10:34 am

OP hereorthere writes this about tier 2 ILR

Date of initial visa issue: 12 February 2014
Date of entry to UK: 15 February 2014
5 year qualifying period ends: 12 February 2019 (from visa issue)
Date of eligibility for ILR (using 28 day rule): 15 January 2019
Date of visa expiry: 14 January 2019

My question is this

how and why did this happen ?
if you were given entry visa on 12 02 14 then that must have expired on 12 11 14 ( am i correct ) ?
and if your current visa expires on 14 01 19 then that means you applied for FLR on 14 09 16 ( is that correct)? but you were not eligible to apply for FLR on that date it should have been October so you were a COMPLETE ONE MONTH too early ? is that correct ?
so what can we all learn from this sad sorry case ?
when you get your FLR do your calculations and plan out your ILR application date ?
what could you have done to avoid this problem ?
has anyone else avoided this calculation problem by being vigilent in preparing beforehand ?

SAMISPOUSAL · Post by **SAMISPOUSAL** » Sat Nov 24, 2018 10:43 am

hereorthere

entry clearance visa plus FLR should have taken you to almost at the end of March 2019 ?

CR001 · Post by **CR001** » Sat Nov 24, 2018 11:00 am

SAMISPOUSAL wrote: ↑
Sat Nov 24, 2018 10:43 am
hereorthere

entry clearance visa plus FLR should have taken you to almost at the end of March 2019 ?

The users husband is on a tier 2 dependent visa not a spouse settlement visa. PBS dependents can only get visa validity at the same time and for the same period/duration as the main pbs visa holder.

The rules are not the same as for FLR spouse visa.

whateverever · Post by **whateverever** » Sun Apr 07, 2019 7:19 am

hereorthere wrote: ↑
Fri Nov 23, 2018 10:49 am
Sorry I misread your response Vinny. I think that might work- thank you!

did you applied earlier and received ilr ?

omoba911 · Post by **omoba911** » Mon Apr 22, 2019 9:53 am

hereorthere wrote: ↑
Thu Nov 22, 2018 4:37 pm
Hi all,

My husband is short literally 1 day on his Tier 2 dependent visa to apply for ILR (thank you Home Office)- even when using the 28 day rule. As he needs to travel for work, a postal application is not an option and we will need to apply for a Tier 2 extension with a variation to ILR to cover the 1 day gap.
My question is around what is the earliest date that he can vary the application. I am going under the assumption that with the new system, the date of application is the date of online submission.

The relevant dates are:

Date of initial visa issue: 12 February 2014
Date of entry to UK: 15 February 2014
5 year qualifying period ends: 12 February 2019 (from visa issue)
Date of eligibility for ILR (using 28 day rule): 15 January 2019
Date of visa expiry: 14 January 2019

The Home office states in the guidance for varying applications that "where an application is varied, the application date remains the date of the original application". This becomes an issue for varying the application because it then seems to me as if the 28 day period cannot be used to calculate
the qualifying period. This is because the guidance on the qualifying period states:

"You must calculate the relevant qualifying period by counting backward from whichever of the following is most beneficial to the applicant:
• the date of application
• the date of decision
• any date up to 28 days after the date of application"

So, in our case, if we applied for Tier 2 extension on 13 January 2019 and then varied the application on 15 January 2019 and the application was decided the same day, my husband would not be eligible under any of the three categories above, since the calculated qualifying periods would be:

• 5 years prior to the date of application - this would be 13 January 2014, before the initial visa issue
• 5 years prior to the date of decision - this would be 15 January 2014, again before the initial visa issue
• 5 years prior to any date up to 28 days after the date of application - this would be 10 February 2014 (using 13 January 2019 as the application date), once again before the initial visa issue

It seems from this that our only option is to wait until 12 February 2019 to vary the application and forget about the 28 day period, so that the decision date falls a full 5 years after the initial visa issue date. Is this correct thinking, or have I misunderstood the guidance?

Thanks for any help you can give.

How did you manage to resolve this issue. My spouse is having same issue, we are 3 days short.

Pleae advise what you did

compiler2000 · Post by **compiler2000** » Thu Jun 06, 2019 7:13 pm

Did you finally apply for ILR ?

YSphar · Post by **YSphar** » Sun Jun 09, 2019 12:37 pm

I am in a similar situation and would love to know the outcome.
My situation: indefinite-leave-to-remain/legitimately ... 82900.html

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1 day short of ILR- date of variation question

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