ILR - 5yr partner route 60 months confusion

[tier1mig]

Dear All,

First of all thanks in advance for responding to my queries.

I first made entry to UK through Tier1 visa on Oct2010 for 2 weeks, later I entered UK for good on Mar2011. My wife got ILR through Workpermit & HSMP on Dec2011. She received British passport during Jan2013.
We got married on Jul2012, I have applied for spouse/partner leave to remain visa and residence permit was issued on 19-Sep-12, expiring 19-03-2015. Post 2.5 years I have applied for another extension and residence permit was issued on 09-03-2015 expiring 03-09-2017. I have booked appointment for ILR settlement visa on 18-Aug-17. I have few queries which am struggling to get answer, am sure similar queries would have been answered but appreciate if you can respond below queries.

1. I have booked appointment to apply for ILR through SET(M) application, in my case is it right application form to submit for ILR

2. Am i eligible to apply ILR on 18th Aug, I wont be completing 60 months until 18th Sep 2017, am i eligible to apply for ILR on 18th Aug if not when is the earliest I can apply? I am confused with 28 days prior to completion, is 28 days to be considered prior to visa expiry or prior to 60 months completion.

3. I have been outside UK from 22Feb13 till 29May13 (96 days, more than 90 days) & 16-oct14 till 26Nov14 (44 days), other than that I had been outside UK for holidays not more than 2 weeks. I understand applicant shouldnt stay more than 180 days outside UK on a single year. Hope I dont have issues with regards to lenght of stay in UK.

Note : I dont have iissues on income/accomadation.

Thanks a lot

[CR001]

1. I have booked appointment to apply for ILR through SET(M) application, in my case is it right application form to submit for ILR

Yes Set(M)

2. Am i eligible to apply ILR on 18th Aug, I wont be completing 60 months until 18th Sep 2017, am i eligible to apply for ILR on 18th Aug if not when is the earliest I can apply? I am confused with 28 days prior to completion, is 28 days to be considered prior to visa expiry or prior to 60 months completion.

You can apply within 28 days before reaching 5 years/60 months.

3. I have been outside UK from 22Feb13 till 29May13 (96 days, more than 90 days) & 16-oct14 till 26Nov14 (44 days), other than that I had been outside UK for holidays not more than 2 weeks. I understand applicant shouldnt stay more than 180 days outside UK on a single year. Hope I dont have issues with regards to lenght of stay in UK.

There is NO absence limit for a spouse visa applicant. 180 days per 12 month cycle is ONLY for PBS main visa holders and ILR long residence.

[tier1mig]

Thanks a lot for quick response. Does 28 days apply from 1) 18Sep17(my first visa was issued on 19Sep12) or 2) visa expiry date which is 03-Sep17?

If option 1 is valid, then I cant apply for ILR before 22Aug17. Please confirm

[CR001]

If you switched within the UK to a spouse visa, it is counted from the date your visa was issued/valid from date.

If you applied from outside the UK, your qualifying 5 year residence is counted from the date you entered the UK.

[tier1mig]

Thank you CROO1, its certainly helpful

[tier1mig]

Dear Admin,

thanks for your response. After my conversation with UKBA customer representative I was informed that I should apply for third extension of FLR(M) visa as my current visa doesnt cover 60 months qualifying period.
First FLR(M) visa date 19-Sep-12 till 19-Mar-2015, second FLR(M) visa validity is 09-Mar-15 till 3-Sep-17.
I was also informed by UKBA that I should have not applied through premium visa, had i applied through postal they would have given visa with issue date as 19-Mar-15 instead of 9-Mar-15.

Though i applied through premium, I am surprised to see that second FLR(M) visa was issued from 09-Mar-15 till 03-Sep-17 still fell short of 6 days as FLR(M) should have not been issued for less than 2.5 years.

I spoke to multiple customer representative of UKBA, most of them agree that UKBA should have issued visa to naturally cover 60 months period as I applied both the visa within UK.

I am really confused and not sure about my next action as my premium appointment for ILR is scheduled on 18-Aug-17.

I really appreciate if you can help me on this

[CR001]

And once again, the call centre has given out incorrect information.

First FLR(M) visa date 19-Sep-12 till 19-Mar-2015, second FLR(M) visa validity is 09-Mar-15 till 3-Sep-17.

I was also informed by UKBA that I should have not applied through premium visa, had i applied through postal they would have given visa with issue date as 19-Mar-15 instead of 9-Mar-15.

Absolute nonsense. The visa start date is always the date the visa is approved, whether by post or in person. If you had applied by post and received approved in May, the visa start date would have been May and NOT March.

You can apply for ILR within 28 days of reaching the 5 years residence. You do not have to have a valid visa up to and including the end of the qualifying period. Your visa must be valid on the date you apply for ILR.

18th August is too soon, you won't meet the requirement. You cannot apply any earlier than 22nd or 23rd August. You need to change your appointment.

Though i applied through premium, I am surprised to see that second FLR(M) visa was issued from 09-Mar-15 till 03-Sep-17 still fell short of 6 days as FLR(M) should have not been issued for less than 2.5 years.

You should have raised this issue as an error at the time with HO.

[tier1mig]

Thanks a lot for your reply.
I have gone through UKBA website, it clearly states that I should complete 60 months qualifying period on same visa. In my case I am falling short of 16 days. Sorry for asking same question again

I have discussed my case with solicitor, she has given two options.

1. Apply for ILR straightaway through postal around 1st Sep even if you fall short of 60 months of completion of qualifying period, UKBA may issue ILR. She claims that UKBA should have given second BRP covering total of 60 months qualifying period.

Possible results a) if Caseworker understands logic, ILR will be used b) if caseworker is rigid he may refuse ILR and ask to apply for FLRM, in this case I will be losing £2200 paid for ILR, again pay amount for FLR(M) and move to ILR later.

2. Apply for FLRM visa through postal(to cover 16 days) on 1st/2nd Sep, wait for 20 days (UKBA would have not made any decision by then) and send ILR application to them. In this case UKBA would write letter back to me saying they cant process two application at the same time and they will ask me about which application to proceed. If I ask them to proceed with ILR, they would refund FLRM fees and proceed with ILR application. I have few questions here a) I would have already sent passport, BRP document to them along with first application. How can they accept second application without proper documents. My solicitor claims that she will prepare letter explaining situation.

What shall i do if i go for option 2 myself instead of going through solictor?

[tier1mig]

First of all thanks a lot for taking your time and responding to queries,

2. Apply for FLRM visa through postal(to cover 16 days) on 1st/2nd Sep, wait for 20 days (UKBA would have not made any decision by then) and send ILR application to them. In this case UKBA would write letter back to me saying they cant process two application at the same time and they will ask me about which application to proceed. If I ask them to proceed with ILR, they would refund FLRM fees and proceed with ILR application. I have few questions here a) I would have already sent passport, BRP document to them along with first application. How can they accept second application without proper documents. My solicitor claims that she will prepare letter explaining situation.

Is the above option called as Varying application, looking into multiple messages/cases in forum I am contemplating to go for varying application.

I can apply for FLRM extension visa application through postal on 2nd Sep with "Bank Draft" for fees. On 20th Sep17 send varying application for ILR with proper covering letter. Is it right way of doing it?

I was looking into 3C leave, got confused with one of statements.
"A person will have section 3C leave if:
• they have limited leave to enter or remain in the UK
• they apply to the Secretary of State for variation of that leave
• the application for variation is made before the leave expires
• the leave expires without the application for variation having been decided
• the application for variation is neither decided nor withdrawn "

It says application for variation ismade before the leave expires, Can someone explain a bit more on this. In my case can I apply for varying application.

[CR001]

Did you read my response at all? You DO NOT have to have valid leave upto and including the full 60 months. Friday, 18th is too soon for you to apply and you now risk not being able to change your appointment to next week.

And once again, the call centre has given out incorrect information.

First FLR(M) visa date 19-Sep-12 till 19-Mar-2015, second FLR(M) visa validity is 09-Mar-15 till 3-Sep-17.

I was also informed by UKBA that I should have not applied through premium visa, had i applied through postal they would have given visa with issue date as 19-Mar-15 instead of 9-Mar-15.

Absolute nonsense. The visa start date is always the date the visa is approved, whether by post or in person. If you had applied by post and received approved in May, the visa start date would have been May and NOT March.

You can apply for ILR within 28 days of reaching the 5 years residence. You do not have to have a valid visa up to and including the end of the qualifying period. Your visa must be valid on the date you apply for ILR.

18th August is too soon, you won't meet the requirement. You cannot apply any earlier than 22nd or 23rd August. You need to change your appointment.

Though i applied through premium, I am surprised to see that second FLR(M) visa was issued from 09-Mar-15 till 03-Sep-17 still fell short of 6 days as FLR(M) should have not been issued for less than 2.5 years.

You should have raised this issue as an error at the time with HO.

[tier1mig]

Dear Moderator,

I have gone through your post earlier, indeed information was certainly helpful. In between my solicitor has given different information saying that ILR might approved only by luck if case worker understands the situation. Since my current visa falling short of 16 days for 60 months qualifying period few caseworker might approve the case, others might reject it. This has created confusion hence I started asking more questions in the same thread.

She was suggesting to apply for FLRM first through postal on 2nd sep & after 18 days(20th Sep) apply for variation by then you will have valid 60 months qualifying period.

Honestly I am confused as you can understand that time and money is involved here. Please dont think I am disregarding messages, am trying to understand best option. I am sure many would have been in similar situation like mine.

[tier1mig]

I have already cancelled appointment scheduled for 18th. If i am applying for ILR directly(instead of varying application from FLRM to SETM)Shall i go for premium appointment on 22nd Aug or send it thorough postal mail. which option would be best. If i send through postal(with bank draft) on 2nd Sep, it might take couple of weeks for case worker to pick the case, would this allow to complete full qualifying period when they take the case?

[CR001]

Your solicitor is wrong. Many people have applied like this. HO know the rules.

Anytime after 22nd or 23rd in person should be fine if this is within 28 days before anniversary of the date of entry to the UK.

[tier1mig]

Hi,

I have few more questions related to SETM application.

In Appendix FM-SE it states that "12A. Where the financial requirement the applicant must meet under Appendix FM relates to adequate maintenance, paragraphs 2 to 12 apply only to the extent and in the manner specified by this paragraph. Where such a financial requirement applies, the applicant must provide the following evidence:" I reckon I dont fall under this category as my current salary is already exceeding minimum income threshold. I am applying as single applicant with no dependents. I have permanent employment since 5Sep16.

2. I will be providing tenancy agreement & planning to provide rent book. Do i need to provide how much I am paying for council tax etc.

Thanks