ILR Application do not qualify!

I have recieved a refusal letter for ILR yesterday, I applied under the 5 years spouse route

The reason for not considering my application for ILR is that I didn't complete yet the 60 months period under the 5 years route

immigration history:
arrived in the UK under tier-2 visa January 2012, then got married and
- On the 11 April 2014 I was granted Leave To Remain as spouse until 11 October 2016
- On the 14th September 2016 I was granted Leave to Remain until 10 April 2019 but when I received the biometric card I found that it is valid only until the 10 February 2019 (which is two months short)

I reported that mistake at that time to the Biometric Card team who has responded that they have referred this to the Case Worker to advise and they mentioned that I should receive a response from the Case Worker.

I did wait for a response from the Case worker but didn't receive any response, so I sent him a couple of letters but also didn't receive any response.

I see that the reason for not considering my application for ILR is that I didn't complete the 60 months period, I understand, but my biometric card will expire after just 58 months! and that was the reason for me applying earlier than I would under normal circumstances.

I can wait and re-apply for the ILR just before the 10 April 2019 (my current leave to remain end date) which should complete the required qualifying period, but the question is: if I stayed beyond the validity of my biometric card will I be considered as overstayer?

Should I chase the Home Office for issueing a revised BRP with the correct validity date? and how to do that?

The letter from the HO saying that they are treating now my application as limited leave to remain and I need to pay Health Surcharge by 1st February if I want it to be considered (otherwise it will be invalid) and that will put me under the 10 years route instead ….. I assume I should ignore that?

( If you do not pay the immigration health surcharge by the specified date, your application for limited leave to remain will be treated as invalid. This means that you will not be granted limited leave to remain and your application fee will not be refunded. However if you choose not to pay the immigration health surcharge you will still have leave to remain which was granted on 14 September 2016 and does not expire until 10 April 2019.
Your current leave to remain was granted under 5 year (60 month) partner route. If you pay the immigration health surcharge for this application it will place you in the 10 year (120 month) route to settlement. )

Your advice is much appreciated

How are you an overstayer?
You were aware you were had a valid visa till 10 April 19. The refusal letter confirms it.
Ho is aware ur leave is valid till 10 April 19.
You are aware there was a mistake on ur BRP and so were HO in a manner of speaking.
The advice is in the refusal letter. Do nothing!
Apply for ILR on the basis of 60 months no more than 28 days before ur valid visa expiry date.

Many thanks Aman90 for your response, you have confirmed what I was thinking of, I just don't want to mess with this and needed to hear from someone else.
Very disappointed with the HO's lack of response especially when there is a clear mistake from their side.

I'm thinking of sending a letter to the HO asking them not to treat my application as an application for limited leave to remain (I know that by not paying the Health Surcgarge it will be invalid anyway) and ask them to refund the application fee

Will this be a resonable request? anyone had any luck in getting a refund from the HO in similar cases before?

MSoliman1 wrote: ↑

Tue Jan 22, 2019 8:44 pm

Many thanks Aman90 for your response, you have confirmed what I was thinking of, I just don't want to mess with this and needed to hear from someone else.
Very disappointed with the HO's lack of response especially when there is a clear mistake from their side.

I'm thinking of sending a letter to the HO asking them not to treat my application as an application for limited leave to remain (I know that by not paying the Health Surcgarge it will be invalid anyway) and ask them to refund the application fee

Will this be a resonable request? anyone had any luck in getting a refund from the HO in similar cases before?

Perhaps...No harm in trying..if you raised it as a misunderstanding due to the date on the BRP. Its weak though as the requirement was clear and you knew you had valid leave. I think there is a complaint procedure and one of the moderators Vinny posted a link on it.
Ur BRP validity date was 10 Feb 19...was it one of those quick decision applications? I think if you had put in a standard service application near 10th Feb, by the time it would have been decided you would have been in ur 28 days qualifying period.

Yes, it was a Super-Priority application

Before I submit the application I had no clear confirmation from the HO about the exact expiry date of my leave, I had only the decision letter of 30 months and the biometric card with 28 months, so it was realy confusing and I didn't want to the risk of applying after the expiry of the biometric card....Anyway the recent letter from HO has confirmed the length of the leave.

I think the HO count the period based on the date of submitting the application - not the date of when they take the decision .... it seems that they are very strict on that.. lesson learned!

I hope no one here fall in the same mistake

MSoliman1 wrote: ↑

Wed Jan 23, 2019 8:49 pm

Yes, it was a Super-Priority application

Before I submit the application I had no clear confirmation from the HO about the exact expiry date of my leave, I had only the decision letter of 30 months and the biometric card with 28 months, so it was realy confusing and I didn't want to the risk of applying after the expiry of the biometric card....Anyway the recent letter from HO has confirmed the length of the leave.

I think the HO count the period based on the date of submitting the application - not the date of when they take the decision .... it seems that they are very strict on that.. lesson learned!

I hope no one here fall in the same mistake

Yes following the rules and the decision letter was more important than the BRP..

FYI
You would have had grounds to argue under this if it wasn’t a super priority application and had applied nearer to 10th Feb.

Page 9, caseworkers guidance for ILR.
Calculating the specified continuous period

Applicants can submit a settlement application up to 28 days before they would reach the end of the specified period.
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

https://assets.publishing.service.gov.u ... .0-EXT.pdf

As your 60 months completes in April, you are only eligible for ILR from 14th March 2019 onwards. I suggest to withdraw the ILR application and ignore the BRP validity date as you have a letter showing you indeed have valid leave until 10 April 2019. Just apply for ILR in March when eligible.

I wrote a letter to the HO complaining that I have applied for ILR before completing the 60 months qualifying period because of the wrong expiry date on the BRP, which is the HO mistake (and clarified that I have reported this error to the HO in 2016 but I didn’t receive any response), and I requested them to either re-consider my application for ILR or to re-fund the application fee

They sent me a response letter few days later (early February) saying that they will re-consider my application for ILR because the of the BRP expiry date error but they will not be able to grant ILR until I complete 5 years and they will keep my application on hold until then.

They sent me a decision letter dated the 18th March (25 days before completing the full 5 years qualifying period) with the ILR approval, the ILR BRP arrived few days later.
Many thanks for your help and valuable advices, I wish the best of luck to everyone here

MSoliman1 wrote: ↑

Sun Mar 31, 2019 8:08 pm

I wrote a letter to the HO complaining that I have applied for ILR before completing the 60 months qualifying period because of the wrong expiry date on the BRP, which is the HO mistake (and clarified that I have reported this error to the HO in 2016 but I didn’t receive any response), and I requested them to either re-consider my application for ILR or to re-fund the application fee

They sent me a response letter few days later (early February) saying that they will re-consider my application for ILR because the of the BRP expiry date error but they will not be able to grant ILR until I complete 5 years and they will keep my application on hold until then.

They sent me a decision letter dated the 18th March (25 days before completing the full 5 years qualifying period) with the ILR approval, the ILR BRP arrived few days later.
Many thanks for your help and valuable advices, I wish the best of luck to everyone here

MSoliman1 do you think you could share the letter you wrote? I am in a similar situation and a draft that was successful might be helpful

confusedduck wrote: ↑

Wed May 29, 2019 9:02 pm

MSoliman1 do you think you could share the letter you wrote? I am in a similar situation and a draft that was successful might be helpful

Your case is not the same or similar in anyway as this user whose visa validity was issued short by HO in error. Your case you applied too early by not completing almost 60 months on flrm. Your error was thinking tier 2 dependent time counted towards the 5 years, which it does not.

A letter to HO won't help your case unfortunately.