ILR Eligibility – Skilled Worker + Global Talent with One month Overstay and one week Gap of Continuous residency

[roses_are_red]

Hi all,

I'm trying to determine if I'm eligible for ILR under the 3-year Global Talent route, and would really appreciate your thoughts. Here's a summary of my situation:

Immigration History:
I first entered the UK in June 2021 on a Skilled Worker visa (valid for 1 year).

Before it expired in June 2022, I applied for an ATAS certificate, which was required for extending my visa.

Not knowing I could apply without the ATAS, I delayed submitting my visa extension application and only completed it in start of August 2022, once I learned I could submit and later provide ATAS.

I eventually received the ATAS in October 2022, and my visa was granted in November 2022, that had a short validity period due to the processing delay.

On the same day I received the decision, I left the UK due to the end of my work contract.

From abroad, I applied for a Global Talent visa in December 2022, which was granted in January 2023, and I returned to the UK in February 2023.

Gaps:
First gap – Between the expiry of my Skilled Worker visa and the date I submitted my extension application (1 months).

Regarding this gap, the Home Office contacted me In September 2022 asking for :

1- For my ATAS certificate.

2- For an explanation about the gap between visa expiry and my application.

I responded that the delay was because I was waiting for ATAS and didn’t know I could apply without it. They didn’t reply, but later granted me the visa in Nov 2022.

Second gap – After my Skilled Worker visa extension expired in December 2022, I applied for a Global Talent visa from abroad about a week later after SW visa expired.

SAR & Application Notes:
I later requested my SAR from the Home Office. Under the Exit Checks Event History, they mention “Probable Overstayer” for the first gap. However, under the Global Talent visa eligibility requirement section, it states:
“No breach of UK immigration laws noted – No general grounds for refusal noted.”

This makes me doubtful whether I had my continuous residency clock reset or not. If this is not the case (my clock is intact), I'll be eligible to apply for ILR from now (as I have already 4 years of combined residency and I need only 3). If not, I would need to wait another six months to apply for ILR right, but more importantly, this will delay my citizenship application for a year and half, as I will loose my SW visa counting. Any advice on how I can confirm my continuous residency status would greatly be appreciated!

[zimba]

You overstayed between June 2022 and November 2022 as you did NOT have any lawful residence in the UK in that period and you were not under section 3C. The correct approach should have been leaving the UK before visa expiry in June 2022, getting ATAS and then applying to return. Staying in the UK and overstaying was a mistake.

Given you got a valid SKW visa in November 2022 and also applied for a new visa within 14 days of its expiry (so benefiting from Paragraph 39E), then you can count that whole period since November 2022 towards your 3 years under the GTV rules for ILR. So you will be eligible within 28 days of completing your 3 years, which will be early November 2025.

Your overstaying period could potentially have an adverse effect on your nationality application though in the future.

[roses_are_red]

You overstayed between June 2022 and November 2022 as you did NOT have any lawful residence in the UK in that period and you were not under section 3C. The correct approach should have been leaving the UK before visa expiry in June 2022, getting ATAS and then applying to return. Staying in the UK and overstaying was a mistake.

Given you got a valid SKW visa in November 2022 and also applied for a new visa within 14 days of its expiry (so benefiting from Paragraph 39E), then you can count that whole period since November 2022 towards your 3 years under the GTV rules for ILR. So you will be eligible within 28 days of completing your 3 years, which will be early November 2025.

Your overstaying period could potentially have an adverse effect on your nationality application though in the future.

Thanks for your response. You mentioned I overstayed from June to November 2022, but my visa expired in July 2022, and I submitted my new visa application in August 2022— after about a month of its expiry. I delayed applying because I was waiting for my ATAS certificate, which I had explained in email reply to HO in September.

Also, in my Global Talent visa approval, it is explicitly stated "No breach of immigration law." Shouldn't this suggest that the Home Office accepted the explanation and did not consider that delay as a breach?

Given this, does that mean the HO did not treat that period as overstaying under the immigration rules? Is there a formal way I can confirm whether I was officially recorded as an overstayer or not— to be able to decide what to do for my ILR or nationality applications? Do you think I should consult with an immigration firm?

[zimba]

You mentioned your visa expired in June 2022 above, that is why I said since June. If your visa expired in July 2022 then you were an overstayer between the expiry date of your visa between July 2022 and until you got a new visa approval. You made an out-of-time application meaning you applied one month into being an overstayer. UKVI normally does not accept an out-of-time application if it is more than 14 days of you becoming an overstayer, however they can exercise discretion if choose to. However, that does not mean that the period of overstaying magically becomes lawful because they accepted an out-of-time application. This is common knowledge.

You can request your immigration data by applying for an SAR: https://www.gov.uk/government/publicati ... mmigration

[roses_are_red]

You mentioned your visa expired in June 2022 above, that is why I said since June. If your visa expired in July 2022 then you were an overstayer between the expiry date of your visa between July 2022 and until you got a new visa approval. You made an out-of-time application meaning you applied one month into being an overstayer. UKVI normally does not accept an out-of-time application if it is more than 14 days of you becoming an overstayer, however they can exercise discretion if choose to. However, that does not mean that the period of overstaying magically becomes lawful because they accepted an out-of-time application. This is common knowledge.

You can request your immigration data by applying for an SAR: https://www.gov.uk/government/publicati ... mmigration

Sorry that was a typo then -- I did apply on July. I see your point on how the delay could affect my eligibility but I had a guess that they might have taken into account my ATAS application waiting. For the SAR, I've mentionned above in the main question that I requested previously my SAR from the Home Office, and that it's written “Probable Overstayer” under the Exit Checks Event History referring to the application delay gap. However, under the Global Talent visa eligibility requirement section, it states:
“No breach of UK immigration laws noted – No general grounds for refusal noted". That's why I'm wondering whether they may consider my clock as reset or not. Would you think it would be wise to consult a lawyer to discuss all of this?

[zimba]

You were an overstayer without any valid leave and just because the UKVI exercised discretion or the fact that you had an excuse, does not mean such a period magically turns into lawful residence. That is not how the immigration rules work. Also, just having a previous overstaying does not necessary becomes a ground for refusal under the GTV rules. UKVI has already taken your overstaying into account and chose to apply discretion. The fact that you got visa later does not change anything. No lawyer is going to tell you anything other than that as this is basic understanding of the immigration rules.

The submission or consideration of an application within the 14-day period set out in paragraph 39E does not mean the migrant’s previous permission and the conditions that were attached to that permission are either re-instated or extended. Therefore, an applicant without valid permission at the point they submit their application continues to be an overstayer from the point their permission expired and throughout the period their application is pending.
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.
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Discretion
Caseworkers may be able to exercise discretion under exceptional or compassionate circumstances where the application was submitted after the 14-day period set out in paragraph 39E. For example, where an individual was unable to apply to extend their stay in the UK due to a serious illness or a medical condition that went beyond 14- days.

If a caseworker decides to use discretion it must be authorised by a caseworker at Higher Executive Officer (HEO) grade or above.

In these circumstances a caseworker must grant permission under the rules, with the same duration and conditions as a normal grant of permission under the rules attached to it. The decision letter must be clear that permission is being granted because the migrant met all other requirements of the route, and the caseworker has accepted there were exceptional circumstances which prevented the applicant from making an in-time application.

I suggest reading the official guide on application from overstayers: https://www.gov.uk/government/publicati ... accessible

[roses_are_red]

You were an overstayer without any valid leave and just because the UKVI exercised discretion or the fact that you had an excuse, does not mean such a period magically turns into lawful residence. That is not how the immigration rules work. Also, just having a previous overstaying does not necessary becomes a ground for refusal under the GTV rules. UKVI has already taken your overstaying into account and chose to apply discretion. The fact that you got visa later does not change anything. No lawyer is going to tell you anything other than that as this is basic understanding of the immigration rules.

The submission or consideration of an application within the 14-day period set out in paragraph 39E does not mean the migrant’s previous permission and the conditions that were attached to that permission are either re-instated or extended. Therefore, an applicant without valid permission at the point they submit their application continues to be an overstayer from the point their permission expired and throughout the period their application is pending.
.
.
.
Discretion
Caseworkers may be able to exercise discretion under exceptional or compassionate circumstances where the application was submitted after the 14-day period set out in paragraph 39E. For example, where an individual was unable to apply to extend their stay in the UK due to a serious illness or a medical condition that went beyond 14- days.

If a caseworker decides to use discretion it must be authorised by a caseworker at Higher Executive Officer (HEO) grade or above.

In these circumstances a caseworker must grant permission under the rules, with the same duration and conditions as a normal grant of permission under the rules attached to it. The decision letter must be clear that permission is being granted because the migrant met all other requirements of the route, and the caseworker has accepted there were exceptional circumstances which prevented the applicant from making an in-time application.

I suggest reading the official guide on application from overstayers: https://www.gov.uk/government/publicati ... accessible

Ok, thanks again for the explanation. So based on this I guess I should wait until Nov before applying for ILR as you have said. Which will then mean I'll have to wait for 2 other years to apply for citizenship (instead of applying next year). Do you think my citizenship will be affected by this overstay record? if yes, could you explain how ?

[zimba]

Yes the suggestion is to apply in November. I actually believe the risk of this affecting your citizenship's 'good character' requirement is minimal due to recent changes to the nationality law.

Checkout the official guide: https://www.gov.uk/government/publicati ... n-breaches