ILR application timing issue

[Meremaid]

Hello - I am currently residing in the UK as the spouse of my husband, a British citizen. He was in the Royal Air Force when we met, married, and when I was granted a spouse visa.

I was initially approved and granted a spouse visa, entry clearance valid from 5 November 2014 until 5 August 2017. I arrived in the UK on 4 December 2014.

When I came to apply for Further Leave to Remain in 2017, I received a letter saying that because my husband was in the Royal Air Force at the time of my initial application, I should in fact have been granted a 5 year entry clearance, not a 2.5 year entry clearance. I was then granted an updated residence permit, valid from 16 April 2017 until 5 November 2019. I have a letter from the Home Office explaining this decision.

I am now preparing to apply for Indefinite Leave to Remain. However, I have been told that the earliest I can apply is 28 days before I reach 5 years in the UK. I reach 5 years on 4 December 2019, so the earliest date I can apply would be 6 November 2019. There is my predicament - my current visa expires 5 November 2019. This would make me an illegal overstayer if I applied on 6 November 2019, by one day

I entered legally, was issued incorrectly a 2.5 instead of a 5 year visa, then when this was updated based on my husband's military status, the new entry clearance permit I was given did not give me enough time to legally apply for Indefinite Leave to Remain within the 28 day window. I've heard that most people who receive a spouse visa are given "in excess" of 60 months, whereas I appear to have been granted 60 months entry exactly. I didn't even receive my visa in the post until a few weeks after the initial entry clearance date - by the time I received it, and booked a flight, it was early December. I could not have reasonably arrived any sooner, and yet now I am in a bind.

I have read online on an Army Families website that military spouses can apply for ILR even if they entered the UK a few months after their 60-month visa. They say for military families the calculation is 60 months since the entry clearance date, NOT 60 months from when we set foot in the UK. I can’t find this anywhere else to back it up. And my husband left the military over two years ago.

I am at a loss for how to proceed. I have a full-time job as a Social Worker, I have a 2 year old son, and am pregnant with our second child. I must have this resolved without disruption to our family life, and the deadline is fast approaching.

Please let me know if you could provide any advice in this situation. Thank you!

[zimba]

This is very common and easy to resolve. You apply and submit your application online before visa expiry and book your appointment for a date you are actually eligible for ILR. You do NOT become an overstayer given that the date of your application is the date of online submission which makes your application an in-time application. A pending in-time application will engage protection under Section 3C of the immigration act and automatically extends your legal stay until a decision is made on your application. Given the time spent under Section 3C is counted towards your lawful stay in the UK, this means you simply will be eligible on the day of decision even though you applied a bit earlier.

[Meremaid]

Wow, is it really that simple? Everyone on another board told me that I couldn’t apply before 28 days since I entered the UK. I assumed somehow my application would be denied or would just fail to submit if I submitted it online before the 28 day mark.

What is the 28 day rule for then? Can I apply online anytime then? Or is it still too early as it’s not yet been 5 years since my initial entry clearance? Would it be best to do it the day before or the day of my visa expiry?

Thank you massively for your reassurance....

[zimba]

There are rules and there are also concessions made by HO. For the start, there is no 28 days rule. It is simply a concession made by HO alongside other concessions for ILR applications. UKVI even makes this clear in one of their ILR guides (Note that this guide does not cover spouse route but these concessions are applied to all ILR applications nonetheless): indefinite-leave-to-remain/4-days-short ... l#p1794428
You can apply anytime however I suggest to apply on the last day of your visa and book your UKVCAS appointment any day later. You will be fine