Query - 24 days shorter for 10 years Long Residency - ILR

[JaySam]

Hi guys what will happen if you are are 24 days shorter for 10 years long residency ILR....


1) Do you need extension to complete 10 years period ?

2) If you read guidances you are allowed to apply Upto 28 days earlier, but do you need to have a leave on your current visa which will cover whole 10 years period ?


For me this query is very important as this will help me make right decision for further .....

Thank you in advance

[vinny]

1. No extension required. You are allowed to apply by post for ILR up to 28 days prior to the completion of your qualifying period, subject to KOL, etc.

2. If you haven't completed your qualifying period, then you must have leave on the date of posting. If you submit a valid in-time application, then leave will automatically be extended under section 3C.

Keep copies of everything and proof of date of posting.

[JaySam]

Hi Vinny,

Thnx for you quick reply !


By the time I will apply I would have completed 9 years 11 months and 6 days, this is the exact continues period of time that I have as a proof for my Long residency ILR.

I have a consultation with a solicitor recently who have advice me against it as he have mention that you have to complete whole 10 year period. Also he have quoted a quite a few cases where even a 3 days short of completing 10 years have been rejected for ILR, even though they have applied 28 days prior to completion of qualifying period.

Any suggestions ?

[vinny]

Please give references to those cases. Were they prior to 20 July 2011?

By the time they decide on your application, you should have completed the 10 years. If you qualify on the date of decision, then you should be okay.

[JaySam]

I am just going by the word of solicitor, although i have asked him to provide the references about such cases.


So Basically I will be playing blind and it will all dependent upon the date of decision. They can't refuse me base upon the fact that I was 24 days short of completing 10 Year. Am I Right ?

[vinny]

I believe that if you make an in-time valid application for ILR and they decide after you complete your 10 years, then you won't be 24 days short. Your leave would have been extended under Section 3C. If you qualify on the date of decision, then you should be Ok according to AQ (Pakistan) v Secretary of State for the Home Department [2011] EWCA Civ 833 (20 July 2011).

Click on previous links for more info.

[Tier 4]

I am just going by the word of solicitor, although i have asked him to provide the references about such case

Well, you are making a mistake, vary the ground of application is more time consuming for case worker than short of few days.

[JaySam]

Hi Tier 4,

vary the ground of application is more time consuming for case worker than short of few days.

Please can you elaborate bit more on above quote Tier 4, I'm not able to get you point.

Thnx Vinney for the link, very helpful.

I haven't decided any thing yet, and just to clear when I say that I'am going by the word of solicitor I meant that I don't have a direct reference or know cases where this has happen (Refuse on Few days short).

I have not complete my research yet .....One Solicitor word is not enough I guess and I will make sure that I will do my research before reaching to any conclusion.

I do have the options to apply Tier 1 Extension, But I wanted to go for 10 Year ILR as this will save my time,money & more importantly hassle involve to prepare the case/document's for Tier 1 Extension.

But what I don't want the most is to get a refusal and lose a change to apply for Tier 1 Extension in order to qualify for 10 Year ILR as I think once you have applied under different category your current status or leave ceased to exits, Am I right ?

Also if they do refuse me (10 Year ILR),

Will I get a change to appeal ?

and

Can I still apply for Tier 1 Extension (After Refusal)?

Thank you guys in advance for listing to me.

[vinny]

I think once you have applied under different category your current status or leave ceased to exits, Am I right ?

Also if they do refuse me (10 Year ILR),

Will I get a change to appeal ?

If you made a valid in-time application, then your current status continues until a decision. If you are refused and have no leave remaining, except under Section 3C, then you will have the right of appeal.

[RANA-ALI]

Hi vinny , i m in a similar situation but i m more days shorter then jay
I ll be really grateful if u could answer my queries please ,
when we say "valid in-time application " on what basis/Marit CW decide whether its a valid or invalid application
Secondly if we make an early application will it still be consider as valid application?
And for long residency is it date of application which considers or the date of decision counts or is it the date when our file get allocated to a CW?
Kind regards
Ali

[vinny]

... valid...
...
Click on previous links for more info.

There are many reasons why applications are declared invalid. In fact, it is quite difficult to get absolutely everything right...

Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered.

I think that an application is in-time when it is (valid and) submitted before leave expires.
I think that it's the date of decision that will be important.

For reference:

Previous Long Residence Instructions:

An application for settlement which is considered by caseworkers more than 28 days before the applicant completes the required qualifying period for long residence should be refused on the basis that they have not completed the required period of leave in the UK. If the application is considered 28 days or less before the 10/14 years is completed and the applicant meets all the other criteria, ILR may be granted.

Current Long Residence instructions:

Applications received more than 28 days before the required qualifying period is completed

You must refuse applications received more than 28 days before the applicant completes the required qualifying period for long residence. This is because the applicant has not completed the required period of leave in the UK.
You must fully consider the case and mention any other reasons for refusal in addition to the applicant not spending enough time in the UK to complete the qualifying period. For example, all breaks in continuous residence.
Applicants who are refused under the long residence rules due to them submitting their application too early can re-apply once they have completed their qualifying leave or up to 28 days before this.

Applications received 28 days or less before the required qualifying period is completed

You can grant if an application if it is received 28 days or less before the applicant completes the required qualifying period, provided they meet all the other rules for long residence.

[aakkoo]

My case is almost similar to JaySam so instead of opening another thread i want to add my query to this thread.


1. I am 70 days short of completing 10 years long residency (7 Sept 2013). My Visa is till 30 June, after applying for HSMP Extension on 29 June and if application processing times takes long when i become eligible to vary my application to ILR.

2. If i vary my application to ILR will i still get the right of Appeal if for any reason my application get refused.

Will really appreciate for the valuable Info. Thx

[Tier 4]

Applicants who are refused under the long residence rules due to them submitting their application too early can re-apply once they have completed their qualifying leave or up to 28 days before this.

This is interesting, wish UKBA expanded on it little bit more.
Sounds like they will hold the application until applicant reach to its 10th anniversary and then they will ask him to re-apply.

[Tier 4]

i m more days shorter then jay
when we say "valid in-time application " on what basis/Marit CW decide whether its a valid or invalid application
Secondly if we make an early application will it still be consider as valid application?

Its by all means your call, however if you apply early then most chances are it will consider invalid, and probably you will be consider overstayed; as vinny explained above.

And for long residency is it date of application which considers or the date of decision counts or is it the date when our file get allocated to a CW?
Kind regards
Ali

Certainly the date of posting.

[Tier 4]

1. I am 70 days short of completing 10 years long residency (7 Sept 2013). My Visa is till 30 June, after applying for HSMP Extension on 29 June and if application processing times takes long when i become eligible to vary my application to ILR.

2. If i vary my application to ILR will i still get the right of Appeal if for any reason my application get refused.

Will really appreciate for the valuable Info. Thx

70 days is a long duration, you have to apply extension, and 28 days before your 10th Anniversary you can vary the grounds of application towards Long residence.

[Tier 4]

I am unfortunately same boat as well, unluckily 40 days short, even if I deduct 28 days out of 40 still 12 days short.

Guess my best shot is to apply for an extension and then vary grounds.

But my only worry is my Passport and my ICFN (the only important things) which I have to include with my first application and when I vary the grounds towards ILR caseworker has to locate them first which of course slow down the process of my ILR application.

[zak786]

My story is the same as posted earlier. 3 days short of 10 years Long Residence. I applied in August 2012 and still waiting for the decision. I had consulted 4 solicitors. 2 said I will get a refusal and 2 said I will be ok as I applied in time and the guidance allows me to apply 28 days or less before completing 10 years. It does not say that I should have a visa on the 10th anniversary or beyond. However on this forum everybody is of the view that I should be ok so lets see.

[Tier 4]

My story is the same as posted earlier. 3 days short of 10 years Long Residence. I applied in August 2012 and still waiting for the decision. I had consulted 4 solicitors. 2 said I will get a refusal and 2 said I will be ok as I applied in time and the guidance allows me to apply 28 days or less before completing 10 years. It does not say that I should have a visa on the 10th anniversary or beyond. However on this forum everybody is of the view that I should be ok so lets see.

Well, you were only 3 days short and you had a facility to apply 28 days in advance, don't know why on earth 2 solicitors told you about refusal. Unless you were short of 31 days?

[aakkoo]

I am unfortunately same boat as well, unluckily 40 days short, even if I deduct 28 days out of 40 still 12 days short.

Guess my best shot is to apply for an extension and then vary grounds.

But my only worry is my Passport and my ICFN (the only important things) which I have to include with my first application and when I vary the grounds towards ILR caseworker has to locate them first which of course slow down the process of my ILR application.

U will b alright bcoz there is 15 days to do the biometric so ur 12 days will b covered in that plus send a cheque rather than direct debit it will b take longer.

when u r sending ur application?

[RANA-ALI]

Thanks so much vinny and tier 4 for ur detailed answer , i really admire the way people help each other here ,
So in my case or any one who fall short of 10 years stay should really extend their stay first .
Is my understanding right?
As per vinny reply its the date of decision
And tier 4 is saying its date of posting, getting mix answers confusing me even more

[r4rashed]

As it is clear that 10 years long residence applications are kept for months after receiving and taking fees until caseworker looks at them. What if some one is short ,say for 70 days, would those days will be covered by 3c and caseworker will count 10 years till the date of decision or date of application was made??
Also if after months, say, that application is refused because of applying 70 days before completing 10 years, would it be safe to re-apply as soon as applicant gets back documents with refusal letter because he/she already completed 10 years during application was under consideration??

[vinny]

If you are short less than 28 days, then it should be okay to apply for ILR no more than 28 days before you qualify.

Else, (if you apply for ILR earlier than 28 days before you qualify, then) their current instructions tells them to refuse. However, if you qualify on the date of the decision, then their refusal may be contrary to case laws. Therefore, you should win on appeal. However, it may be safer to initially apply for an extension first and vary the undecided application to ILR when you qualify.

It's important to apply before your leave expires to preserve your lawful status and the right of appeal.

[r4rashed]

If you are short less than 28 days, then it should be okay to apply for ILR no more than 28 days before you qualify.

Else, (if you apply for ILR earlier than 28 days before you qualify, then) their current instructions tells them to refuse. However, if you qualify on the date of the decision, then their refusal may be contrary to case laws. Therefore, you should win on appeal. However, it may be safer to initially apply for an extension first and vary the undecided application to ILR when you qualify.
It's important to apply before your leave expires to preserve your lawful status and the right of appeal.

Thank you so much Vinny, I got my complete answer. God bless you.

[zak786]

My story is the same as posted earlier. 3 days short of 10 years Long Residence. I applied in August 2012 and still waiting for the decision. I had consulted 4 solicitors. 2 said I will get a refusal and 2 said I will be ok as I applied in time and the guidance allows me to apply 28 days or less before completing 10 years. It does not say that I should have a visa on the 10th anniversary or beyond. However on this forum everybody is of the view that I should be ok so lets see.

Well, you were only 3 days short and you had a facility to apply 28 days in advance, don't know why on earth 2 solicitors told you about refusal. Unless you were short of 31 days?

No it was 3 days short of actual 10 years. The solicitors who said it will get refused were of the opinion that applying 28 days or less only apply to those applicants who would have visa to complete 10 years. However the other 2 solicitors who said that I should be fine quoted the same section of the guidance in which it says applications received 28 days or less before the applicant completes 10 years may be granted ILR. One of the solicitors even said that he had clients who got ILR who's visa were short of 10 years but applied within 28 days of completing 10 years. However I have not heard of anyone first hand who was in my situation and got the ILR. I would request the members to come forward if they know some one who got ILR in our situation.

[Tier 4]

when u r sending ur application?

I am applying next year mate. However please do update yours experience of applying ILR, especially when you will vary the grounds of your first application.