Immigrationboards.com

Hi everyone,
I was a bit perplexed by the recent discussion regarding the 28 days rule so I emailed the settlement ops. The reply is below:


"I cannot provide advice on individual applications, but as you are aware, one of the requirements for settlement is that the applicant must have spent a continuous period of 5 years lawfully in the UK. The Secretary of State can apply discretion to disregard short absence during the 5 year period, to enable migrants to travel outside of the UK for the purpose of paid annual leave, or business. This discretion is also applied in cases where the migrant may have delayed their initial entry to the UK, provided this was for a period no longer than 3 months.

If applying for settlement at a PEO, the assessment of this requirement will be made on the day of the appointment, therefore, an applicant must ensure that they can meet the requirement on that day, taking into account any disregarded absences. The PEO appointment can be no earlier than the actual date that the applicant completes the 5 year period, regardless of the fact that they must make an application to extend their leave within 28 days of the expiry of their current leave.

In cases where the applicant has delayed their entry to the UK by less than 3 months (the delay can therefore be disregarded), and their PEO appointment is earlier than 5 years after their Entry Clearance date, they will not be allowed to submit their application, as they will be deemed not to have yet completed the 5 year period, and will be advised to submit a postal application.

A postal application for settlement can be submitted 28 days before the expiry of current leave, as the assessment of whether the applicant has met the 5 year requirement will take into account the period of time between the application being posted, and the date of decision.
I trust this answers your question, but if you have any further enquiries regarding your application, please contact the Immigration Enquiry Bureau 0870 606 7766."

So, I am being advised that I cannot submit my ILR application to the PEO before the actual anniversary of my entry clearance which seems to be completely and utterly at odds with the ILR guidance.

Gurus - your views will be much appreciated.

GG2011: this law is very clear and all the applicants I know have been benefiting from it these days.

Basically according to Modernized Guidance, if you entered the UK within 90 days of getting the Entry Clearance, you are eligible to apply for ILR 28 days before the 5th anniversary of your EC date (first visa stamp date).

I myself applied 28 days before the 5th anniversary of my EC date last month and the case worker didn’t even ask any question about it and granted me the ILR.

Thank you, the guidance seems to be clear enough, but even people on this board seem to disagree with each other on this particular topic!
I'll go for my appointment next week and will update everyone on my experience.

Also for further peace of mind, I and some more people on this forum sent an email to SettlementOpsPolicy@homeoffice.gsi.gov.uk and gave them all our dates and they replied us back the next day confirming that our understanding is correct and according to modernised guidance, we can actually apply for ILR 28 days before the 5th anniversary of our visas.

I have not seen a single applicant who benefited from this rule and had any issues at PEO.



Below is the template I used:

Respected Sir/Madam,

I am currently working in UK on Tier-1 General visa.

Please find below the dates of my visas and also the date I first entered UK.

HSMP: 22 May 2007 (valid until 22 May 2012)
Came to UK: 16 Jun 2007
Tier-1 General: 24 April 2009
Tier-1 Valid Until: 05 Jun 2012

As you would notice from the above dates, I entered UK within 90 days of getting HSMP Entry Clearance; and as per the ‘UKBA Modernised Guidance for Calculating Continuous Period in UK for ILR’ (please see the URL below); my understanding is that I will be eligible to apply for ILR/Settlement 28 days before my HSMP entry clearance start date.

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


Which in my case would be on or after 24th April 2012. (as I got entry clearance on 22 May 2007).

I would be really thankful to you, if you could please confirm that my understanding is correct and I am eligible to apply for ILR 28 days before the 5th anniversary of my HSMP entry clearance start date.


Regards,

I've done the same, and the reply I have is incomprehensible!

In my case I simply tried calling on 0870 606 7766 then option 4 and then option 3 , it took some time to connect but when connected I told each detail to the customer care representative and in return they were helpful and advised me the date on/after which I can apply for ILR.

Instead of long emails , please try calling them and clear your queries .

My experience is call me be on hold for 15-20 min so have patience.

Thanks
APS

Helpline person suggested 28 days from the entry date. Thoroughly confused now!

The reply which I and some other people on this forum got was very précised (and not an automated reply) and was addressed to us only.

I would suggest you send another email using the template I provided with your exact dates and see what you get.

Hi,
As Linkers stated, I too know few cases (including success stories posted on this forum) who got the ILR based on modernized Guidance.

I too got exactly same response from UKBA (same wording except my name!). To be honest it does not make any sense.

Modernized guide is an approved policy (probably passed by the Parliament) so more valid than these reply...I may be wrong..

Because this is law, answer should be simple..;
If the arrival is within 3 months of EC-Visa, then can we apply on or before 28 days from the 5th anniversary of EC date?

answer should be YES or NO...

Your understanding is correct Devb.

Yes, if the arrival is within 3 months of EC-Visa, then you can apply for ILR 28 days before from the 5th anniversary of EC date.

I applied at Solihull PEO, 27 days before completing my 5 year period and had no questions asked about the date I was applying on, but was granted ILR.

I have successfully obtained an ILR on the 2nd of May with my 5th year anniversary is on the 27th of May 2012, applied via PEO with no problems at all.

Dear GG2011

This is my email to UKBA on the subjected issue;

QUOTE:
Respected Sir or Madam,

I will really appreciate, if you 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;

Start Date of Entry Clearance(HSMP) : 05 Sep 2007
End Date of Entry Clearance(HSMP) : 05 Sep 2009

Entry in UK : 20 Oct 2007.

Start date of Residence Permit(Tier 1 General): 12 Sep 2009
End date of Residence Permit(Tier 1 General): 12 Sep 2012

Since I came after 28 days of my entry clearance date, my question is am I covered under Section 2.2 of Annex B on Settlement of Immigration Directorate Instructions. Which states;

2.2 Applications that fall short of the five year continuous period
In some cases, applicants may have been granted 5 years continuous leave, but will not have spent 5 years continuously in the UK before their current leave expires. Caseworkers may count the period between entry clearance being granted and the date the applicant entered the UK towards the 5 years, provided this period was not longer than 3 months.

If this is the case, am I be eligible to apply for settlement on OR after 08 Aug 2012 through Public Enquiry Office appointment? OR if there is any other date, please advise.

Do I need to to proof maintenance funds of £900 for main applicant and £600 for each dependant, as mentioned in the extension requirement of Tier 1 General?



Thanks,

UNQUOTE
This is there reply;

QUOTE
Dear Sir,

Section 2.2 of Annex B on Settlement of Immigration Directorate Instructions does apply in your case, however, if you apply at a PEO, the decision maker on the day will count the number of days spent in the UK from the date of the PEO appointment to the Entry Clearance date. If the applicant has not satisfied the 5 year requirement, their application should not be accepted at the PEO.

If you have not completed the 5 year requirement, you may wish to apply at the PEO to extend your leave, and can then make a later application for settlement at the PEO when you have met the requirement.

Alternatively a postal application will take into account the number of days since the application was submitted as counting towards the 5 year requirement. The SET(O) guidance which accompanies the form will tell you what evidence you need to submit along with your application. ·

If you have any further questions regarding your application, please contact the Immigration Enquiry Bureau 0870 606 7766.

UK Border Agency – Settlement Ops Policy Team
UNQUOTE

Hopefully this will clear your doubts. The question of maintenance funds was raised as one of the member on boards had been asked on his PEO appointment by the case worker about this.

This is a wonderfully vague piece of advice from the Home Office. It doesn't clarify anything, what it says is "we may or may not accept your application at PEO" if you entered late.

Logically, the SET(O) guidance states that you can apply 28 days before the end of your qualifying period. And the continuous stay guidance says the delay in entering may be counted towards that qualifying period, just as our holidays and business trips. But, no confirmation!

Anyway, thank you everyone. I'll post my experience next week.

Hi GG2011,

Have you noticed the bold sentence in this para:

In cases where the applicant has delayed their entry to the UK by less than 3 months (the delay can therefore be disregarded), and their PEO appointment is earlier than 5 years after their Entry Clearance date, they will not be allowed to submit their application, as they will be deemed not to have yet completed the 5 year period, and will be advised to submit a postal application.

That means you will not loose anything, if they think you don't satisfy 5 year criteria "you will not be allowed to submit the application". That means you will not loose your fee and you will still have a chance to submit application by post?

Is my understanding correct?

i have given up ringing UKBA call centre for advice. they are just trainee kids who says things differently.

why I am saying this?

I used to work at a call centre part time and made friends with some people who then starting working for UKBA call centre, and I know, how good they were with their product knowledge previously

Linkers:
may i just ask - did you apply for your original HSMP from outside the UK or from the UK?

GG2011: I got my HSMP from outside the UK.

Thank you. Stressed!!!

The information provided by the Settlement Ops team is incorrect as they seem to imply that one can not apply unless they have actually completed the qualifying period in UK. They even go a step further and suggest differentiation between the PEO applications and the Postal application. See the following from Specified application forms and procedures
The date of application is either:

 the date of posting for postal applications, or
 the date a public enquiry office accepts the application, if it is made in person, or
 the date it is delivered to the UK Border Agency if it is sent by courier.

When an application should be made

Applicants who need to meet a qualifying period for indefinite leave should not apply for further leave until they are within 28 days of completing the relevant qualifying period. This allows them to meet any required qualification periods for the continuous leave requirement. This is not a mandatory requirement of paragraph 34 of the Immigration Rules and you must not reject an application as invalid if the applicant submits it more than 28 days before they have completed the relevant qualifying period. For more information on applications for indefinite leave that have been submitted early, see related link: Early ILR applications.

Good Morning everyone,
Just an update - went to Croydon PEO yesterday, my application was accepted, I was told everything is fine, but of course, biometrics were down, so now i am eagerly awaiting call in the (hopefully) near future.

GG2011 wrote:Thank you. Stressed!!!

GG2011, i fall short of the criteria by 4 days as I entered the country 32 days after getting my first entry clearance, so am in the same situation as yOu. However when I called up the Ukba customer care I Was very clearly told that I can apply for a Peo appointment 28 days before my visa expires.

My appointment is tomorrow at Croydon. Will let you know what happens!

Hi sameergk!
My experience is that UKBA helpline is a total rubbish. You'll be fine, hope your appointment is early. I was not lucky with biometrics so my passport is held hostage now
On the plus side, the staff in Croydon office are very pleasant to deal with. Good Luck!

Thanks GG2011, my appointment is at 8.45 am so hopefully it should be alright . Sorry to hear about the delay, I hope you haven't planned any traveling the immediate future.

We're you asked for p60s?

Hi again sameergk,
Yes. I had a very efficient caseworker, who asked for all the standard things. P60s are needed to establish that you've complied with the terms of your previous leave, i.e. that you were economically active and paid your taxes, I don't think anyone cares much about the level of your actual earnings in the past.
Not every case worker asks for those, but it's useful to have them on you anyway, as well as the latest bank statement.