Shortfall of 28 days before ILR Application

[willco]

Hi

I did NOT entered the UK within 3 months of EC.

Now I am short by 5 days to apply within the 28 days of 5 years from entry to the UK, before my visa expires.

I do not want to apply for another extension. ££££ I managed to book an appointment, but from the forum it seems that they will refuse my application and do not want to waste my money.

Will I be able to send a postal application? Will the 28 day rule be based on date of submission of application or date of decision ?

Anyone have similar experiences.

[cs95tdg]

You can certainly make a postal application. But whether or not it will be successful will depend on whether you meet the ILR residence requirement at the time/date the UKBA make a decision on it. I'm unable to make any specific suggestions/comments on your case with the limited information provided.
If you provide the following dates, that may help understand what the best course of action would be for you: Your ILR residence period immigration status/category, EC date, Date of First entry, Current LTR expiry date.

[Gagan1986]

Hi

I did NOT entered the UK within 3 months of EC.

Now I am short by 5 days to apply within the 28 days of 5 years from entry to the UK, before my visa expires.

I do not want to apply for another extension. ££££ I managed to book an appointment, but from the forum it seems that they will refuse my application and do not want to waste my money.

Will I be able to send a postal application? Will the 28 day rule be based on date of submission of application or date of decision ?

Anyone have similar experiences.

When you make a postal application they normally take the 'date application was posted' into consideration and that will be the time you need to be eligible. If you are purposely applying 5 days later you need to give a reason that why you couldn't make your application when your leave was valid. Just using those 5 days to make yourself eligible, I doubt that will be considered as a genuine reason

[cs95tdg]

There is no requirement to justify why a out-of-time application is being made (though its not entirely clear to me whether that's what the OP is suggesting). The following immigration rule (for PBS Economic Migrants) is what needs to be satisfied. If it isn't satisfied the application will simply be refused.

245AAA. General requirements for indefinite leave to remain
For the purposes of references in this Part to requirements for indefinite leave to remain, except for those in paragraphs 245BF, 245DF and 245EF:

(a) "continuous period of 5 years lawfully in the UK" means residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain;

(ii) the applicant has existing limited leave to enter or remain upon their departure and return except that where that leave expired no more than 28 days prior to a further application for entry clearance, that period and any period pending the determination of an application made within that 28 day period shall be disregarded; and

(iii) the applicant has any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period disregarded.

A key disadvantage of an out-of-time application is that the applicant will not have the right of appeal.

[willco]

Some more information

Entry Clearance: 12 Jan 2008 to 12 Jan 2010
Entered into UK: 17 Apr 2008
Tier 1 Extension Expiry: 17 March 2013

I did not enter the UK within 3 months. My visa will expire before I am within the 28 days before 5 years. I am about 4 days out.

I am not planning to make an out of time application. I intend to submit a postal application on 15th March 2013. By the time they start looking at my application I will be with the 28 day rule, as seeing other applicants are takings months and months for a decision.

I just hope for some clarification that the postal submission will get me within 28 days of the 5 years, and they will not calculate it based on the date of posting. I have read references that this was possible, but don't have any guidance to back it up.

Has anyone heard of any experiences where people have been refused or successful if they applied outside the 28 days and entered the UK after 3 months ?

[sh1981]

i understand your issue. you entered uk 3 months after your got your visa, right?

if thats true then they will hold your application until your 2 years complete (or 5 years or whatever your visa was valid for) and then they will process it.

in my case i was out of uk for 5 and a half months. i was on a 2 yr visa. by the time my 2 years would have completed, it would have been 2 months 15 days past visa expiry. i applied anyway, and they processed it.

[cs95tdg]

if thats true then they will hold your application until your 2 years complete (or 5 years or whatever your visa was valid for) and then they will process it.

Not quite true. There is no such thing as the UKBA keeping your application until you become eligible for ILR before processing it.

There is however the possibility that an applicant (who wasn't eligible on the date of the application) may become eligible for ILR by the time/date they make a decision on the application, due to delays in UKBA application processing times (for example due to the volume of applications they received). This is because the applicants lawful residence from their current LTR expiry date to ILR approval/decision date would be covered by S3C.

[willco]

There is however the possibility that an applicant (who wasn't eligible on the date of the application) may become eligible for ILR by the time/date they make a decision on the application, due to delays in UKBA application processing times (for example due to the volume of applications they received). This is because the applicants lawful residence from their current LTR expiry date to ILR approval/decision date would be covered by S3C.

I think this is what I want to hear. From what I see from the applicants in this forum, they will not be making a decision within 5 days of receipt of my application.

But would be good to hear if others have gone through this before.

[cs95tdg]

Some more information

Entry Clearance: 12 Jan 2008 to 12 Jan 2010
Entered into UK: 17 Apr 2008
Tier 1 Extension Expiry: 17 March 2013

I did not enter the UK within 3 months. My visa will expire before I am within the 28 days before 5 years. I am about 4 days out.

I am not planning to make an out of time application. I intend to submit a postal application on 15th March 2013. By the time they start looking at my application I will be with the 28 day rule, as seeing other applicants are takings months and months for a decision.

I just hope for some clarification that the postal submission will get me within 28 days of the 5 years, and they will not calculate it based on the date of posting. I have read references that this was possible, but don't have any guidance to back it up.

Looking at your dates, the earliest you would become eligible to apply for ILR would be on 20/03/2013. You have stated one option which should work, as its the date the decision is made that counts, especially when there are lengthly delays in postal application processing time. However the more clear-cut option IMO would be to apply for a Tier 1 G extension and then vary it to ILR, if a decision is not made on the T1G application by the time you become elgible for ILR. I don't have any explicit references for either of the options, but you may want to try using the search feature on this website to find others who have successfully varied their applications or applied early by post in the past.

[sh1981]

if thats true then they will hold your application until your 2 years complete (or 5 years or whatever your visa was valid for) and then they will process it.

Not quite true. There is no such thing as the UKBA keeping your application until you become eligible for ILR before processing it.

There is however the possibility that an applicant (who wasn't eligible on the date of the application) may become eligible for ILR by the time/date they make a decision on the application, due to delays in UKBA application processing times (for example due to the volume of applications they received). This is because the applicants lawful residence from their current LTR expiry date to ILR approval/decision date would be covered by S3C.

ukba does hold your app until your become eligible in many cases
read here http://www.ukba.homeoffice.gov.uk/visas ... ettlement/

. Provided you meet all the other requirements, we will put your application on hold until you have completed your 5 year qualifying period in the UK.

however if entry into uk took more than 3 months then they wont.

there is no such thing as DELAYS, ukba does not delay, its just assumed, and any assumption is not official.

[cs95tdg]

ukba does hold your app until your become eligible in many cases read here http://www.ukba.homeoffice.gov.uk/visas ... ettlement/

Provided you meet all the other requirements, we will put your application on hold until you have completed your 5 year qualifying period in the UK.

however if entry into uk took more than 3 months then they wont.

there is no such thing as DELAYS, ukba does not delay, its just assumed, and any assumption is not official.

Two points:
1) The reference you have provided is for those applying for ILR as the spouse of a settled person, which from what I can see, the OP is not.
2) As you & the reference states, what you say only applies if the applicant first entered the UK within 3 months of EC. This again the OP did not.

My response was provided in context of the OP's immigration background and not yours, as they are completely different routes to settlement (with different immigration rules). As far as delays go, it is a known fact that when making postal applications you will have a longer wait for approval because of the UKBA application processing times - See http://www.ukba.homeoffice.gov.uk/visas ... tingtimes/. That is not a assumption, but a fact published by the UKBA. While the waiting times have reduced in recent times, not everyone has had their applications decided in a timely manner.

[vinny]

Subject to the 3 month concession, if you apply for ILR earlier than 28 days before you qualify, then they may refuse.

However, if you qualify on the date of the decision and they refused, then their refusal may be contrary to case laws. Therefore, you should win on appeal.

It may be safer to initially apply for an extension first and vary the undecided application to ILR when you qualify.

Whichever application you choose to make, it's important to make a valid in-time application shortly before your leave expires to preserve your lawful status and the right of appeal.

[willco]

I just checked online and there were a few appointments availiable at Birmingham (Solihull). I grabbed one, last working day before my visa expires. So in Solihull, they will assess your application and you only pay if you are successful ? Is that correct ?

Has there been any cases where you are successful if you applied before ILR before the 28 days. ?

So now it looks like:

PEO Appointment: 15 March 2013
Visa Expiry: 17 March 2013
28 days before 5 years: 20 March 2013
5 years in UK: 17 april 2013

Should I chance it by taking a day off, and see if they will accept my application. If they refuse, I will just go to the post office and send it off. Do they have any descretion over this, or will they simply say they are unable to process it because I am oustide of the 28 days ?

[cs95tdg]

There is no harm in going to Solihull as they will not take payment unless you meet the basic requirements. But personally I believe they will tell you that you do not yet meet the residence requirement, and tell you the alternatives you have.

According to my understanding of the rules no discretion would be allowed when the fundamental 5 year residence requirement is not met. Do let us know how you get on though, if you do decide to make an in-person application.

[sh1981]

look as far as i remember, if you apply for ILR after the end of your visa...well i know about spouse visa so i can say it from its context that say if i was on spouse visa, and i took MORE than 3 months to enter uk and i apply for ILR at the end of my spouse visa...if they think i havent cvompl;eted my 2 yrs (or 5 yrs nowdays) then they will automatically make it an FLR application and give me extension on spouse visa. now if it takes 1 week for 2 yrs (or 5 yrs nowadays) to complete, then after that 1 week i can make another ILR application and it will go through.

in other words, make the ilr application, if it doesnt go through they will automatically give extension.

this is my opinion and i do remember reading about this.

[willco]

in other words, make the ilr application, if it doesnt go through they will automatically give extension.

this is my opinion and i do remember reading about this.

Good to know there are situations where they can be flexible.

I know this will be different from spouse visa. So, if I get refused for ILR, they could give me an extension (a different application) or will they inform me that I will have to leave the country.

Extensions are £1,500 whereas the ILR application is less than £1,000.

[cs95tdg]

So, if I get refused for ILR, they could give me an extension (a different application) or will they inform me that I will have to leave the country.

Extensions are £1,500 whereas the ILR application is less than £1,000

You appear to be worrying over something which doesn't warrant it. Several options have been suggested here, none of which will result in you being asked to leave the country. So just leave that thought aside and decide which route you want to take.

1) Make a in-time postal application for a extension of leave under your current immigration category (which I don't believe you have mentioned in this thread) and then vary it to ILR if they don't make a decision on that application by the time you qualify for ILR.
2) Make a in-time postal ILR application. With the understanding that even though you weren't eligible on the date of the application you will become eligible for ILR by the time/date the UKBA make a decision on the application. This is because the applicants lawful residence from their current LTR expiry date to ILR approval/decision date would be covered by S3C. But as vinny has pointed out, this application may initially be refused and be successful on appeal.
3) Make an in-time in-person PEO application to extend your current leave and then apply for ILR once you are eligible after that is granted. This will be a costly option as you will need to pay both the LTR and ILR application fees.

If you do not have urgent travel planned in the near future, then you may go for either option 1 or 2. Option 1 has been recommended as the safer one.

If on the other hand you do have urgent travel in the near future then you may go for option 3) with the intent of getting a same-day decision, if your case is straight-forward.

Note that even if you make an in-person ILR application at Solihull before you qualify, they will tell you what options you have. I.e. based on all evidence to do date, they will suggest the alternatives you have - such as one of the 3 options mentioned above. They cannot ask you to leave the country.

With all these facts in hand, the ultimate decision on what to do is yours.

[sh1981]

So, if I get refused for ILR, they could give me an extension (a different application) or will they inform me that I will have to leave the country.

Extensions are £1,500 whereas the ILR application is less than £1,000

You appear to be worrying over something which doesn't warrant it. Several options have been suggested here, none of which will result in you being asked to leave the country. So just leave that thought aside and decide which route you want to take.

1) Make a in-time postal application for a extension of leave under your current immigration category (which I don't believe you have mentioned in this thread) and then vary it to ILR if they don't make a decision on that application by the time you qualify for ILR.
2) Make a in-time postal ILR application. With the understanding that even though you weren't eligible on the date of the application you will become eligible for ILR by the time/date the UKBA make a decision on the application. This is because the applicants lawful residence from their current LTR expiry date to ILR approval/decision date would be covered by S3C. But as vinny has pointed out, this application may initially be refused and be successful on appeal.
3) Make an in-time in-person PEO application to extend your current leave and then apply for ILR once you are eligible after that is granted. This will be a costly option as you will need to pay both the LTR and ILR application fees.

If you do not have urgent travel planned in the near future, then you may go for either option 1 or 2. Option 1 has been recommended as the safer one.

If on the other hand you do have urgent travel in the near future then you may go for option 3) with the intent of getting a same-day decision, if your case is straight-forward.

Note that even if you make an in-person ILR application at Solihull before you qualify, they will tell you what options you have. I.e. based on all evidence to do date, they will suggest the alternatives you have - such as one of the 3 options mentioned above. They cannot ask you to leave the country.

With all these facts in hand, the ultimate decision on what to do is yours.

theres option 4 as well, you could make one of those ILR applciation that are like super premium or something, you give 5000 quid and they come to your house and take your pics and give you the visa right there unfortunately i think those who use it wouldnt come to forums like this lol

[mjunaid106]

So, if I get refused for ILR, they could give me an extension (a different application) or will they inform me that I will have to leave the country.

Extensions are £1,500 whereas the ILR application is less than £1,000

You appear to be worrying over something which doesn't warrant it. Several options have been suggested here, none of which will result in you being asked to leave the country. So just leave that thought aside and decide which route you want to take.

1) Make a in-time postal application for a extension of leave under your current immigration category (which I don't believe you have mentioned in this thread) and then vary it to ILR if they don't make a decision on that application by the time you qualify for ILR.
2) Make a in-time postal ILR application. With the understanding that even though you weren't eligible on the date of the application you will become eligible for ILR by the time/date the UKBA make a decision on the application. This is because the applicants lawful residence from their current LTR expiry date to ILR approval/decision date would be covered by S3C. But as vinny has pointed out, this application may initially be refused and be successful on appeal.
3) Make an in-time in-person PEO application to extend your current leave and then apply for ILR once you are eligible after that is granted. This will be a costly option as you will need to pay both the LTR and ILR application fees.

If you do not have urgent travel planned in the near future, then you may go for either option 1 or 2. Option 1 has been recommended as the safer one.

If on the other hand you do have urgent travel in the near future then you may go for option 3) with the intent of getting a same-day decision, if your case is straight-forward.

Note that even if you make an in-person ILR application at Solihull before you qualify, they will tell you what options you have. I.e. based on all evidence to do date, they will suggest the alternatives you have - such as one of the 3 options mentioned above. They cannot ask you to leave the country.

With all these facts in hand, the ultimate decision on what to do is yours.

Hi, Just to check here regarding option 1.

According to the document

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

"The application date remains the date of the original application and not the date of the variation.".

So I believe willco won't qualify for ILR even at that time since the application date would still be same. Am I right here?

[cs95tdg]

Hi, Just to check here regarding option 1.

According to the document

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

"The application date remains the date of the original application and not the date of the variation.".

So I believe willco won't qualify for ILR even at that time since the application date would still be same. Am I right here?

No, that's not correct. IMO, the intent of that statement is to highlight that even if an applicant varies an application after their former leave to remain expires (i.e. in this case, when they qualify for ILR), then they would still be covered by S3C until a decision is made on the varied application because the initial application was made in-time. I.e. the applicant would continue to have valid leave until a decision is reached and also the right of appeal. Reading the two sentences together makes a difference.

The application date remains the date of the original application and not the date of the variation. You will need to consider this when deciding if the applicant benefits from section 3C leave and determining the applicant’s appeal rights.

[vinny]

See also Urgent Help Required-ILR when delay in travel for 3 mon 1 da.

[willco]

Got my ILR approval letter today

Big thank you to this forum.

[vinny]

Congratulations!

[Tier 4]

Got my ILR approval letter today

Big thank you to this forum.

congrats willco, enjoy your freedom .

Did you submit any other application and then vary it? or you just straight away applied ILR without covering the shortfall of days?

Thanks

[willco]

For other applicants interested in my experience :

My application was SET(O).

I believe I was technically a few days short of the required time.

I did not apply in person, as there was a general feeling on the boards that I will be turned away. I did not want to test my luck and take a day off work to find out. Also, finding appointments at that time was a bit tricky.

Therefore I sent my application by post. There was some debate whether the required time was date of submission or the actual date of review/processing by the caseworker.

Well, if it takes them more than 6 months before they look at my application I didn't think they will be too strict on a few days if it was based on submission date. That's the risk I took.

I sent my application in and waited .... and waited. I did not put in a cover letter to bring to attention of this short fall and did not make any variations. Got my acknowledgment letter about week later and my biometerics not to long after that. So that was a good sign, that they didn't reject my application straight away.

Work did get a bit funny with my visa expiring and forced to take time off until the acknowledgement letter came through. Luckily it did not get lost in the mail.

Seven months later got the approval letter.

Fall back plans was appeal, but lucky I did not have to cross that bridge, and had no idea how that would of worked.

I did not want to apply for a visa extension paying £1,500 then apply for ILR £1,000 after that just for being a few days short. Although some people may have. I took the view it was when the caseworker looked at your application especially consider the backlog and waitiing period.

But it is up to the individual to take the risk, and they should get their own advice rather than go off my experience.

Good luck to the rest of you.