ILR Tier-2 General route: questions on the application date

[wlshJ]

Hello folks,

First of all may I say that people sharing their useful experience and devoting invaluable time on forums like these is much appreciated. I also have to apologise that perhaps what I am going to ask below might be deemed redundant or trivial or both. However, I do believe I have tried sufficiently hard to find answers to some of my questions but have had no convincing answers yet. With this disclaimer in place, following are my specific question.

Aim: I intend to apply for an ILR through a Tier-2 (General) route- no dependant, I am an Indian national and its just me !

History: My first leave to remain under a Tier-2 category was granted on the 11-August-2012 (this is the date on my biometric card.) I used a standard postal service to apply for this visa and was granted my leave within the UK. I have been sponsored on a Tier-2 (General) visa category since then (with change of employers though, but no break between any consecutive leaves to remain and all subsequent applications were made within the UK through a premium service.) My current leave to remain is valid until August 2018.

My questions are as follows (hope they not too convoluted):

(1) In my assessment I attain my milestone of five years of continuous residence on the 12-August-2017. The reason I am bit sceptic about this is because although my leave to remain under a Tier-2 category was granted on the 11-08-2012, I started my employment from 01-10-2012. The reason was, I was a PhD student (Tier-4) when I made my first Tier-2 visa application. I was still finishing my PhD (had my viva in Sept 2012). My Tier-4 visa was valid between 09-09-2009 and 13-01-2013. But since my Tier -2 visa application was successful, I am guessing Tier-2 leave to remain ‘superseded’ my then existing Tier-4 leave. But I am not sure, I need some advice on this. I find it bit tricky because technically I was sponsored w.e.f. 11-08-2012, but I only started my full-time employment from 01-10-2012.

(2) If more experienced forum members think that my above argument holds and taking into account the fact that one is allowed to make an ILR application 28 days in advance before finishing the 5 years of continuous residence, then is it safe to submit an application around 20th July 2017 ?

(3) Do folks think that the period between 11-08-2012 and 01-10-2012 could count towards (a) `gap’ in employment or (b) absences from the UK ? If (a), then since the actual number of days is still less than 60 days does my point in (2) above hold ? If (b) then would these days count towards my `absences’ from the UK (This would be funny though, as I was in the UK for most of this period except for a holiday between 13-09-2012 and 30-09-2012 to celebrate my viva !) If (b) holds, and I were to include the period between 11-08-2012 and 01-10-2012 as absences, then it would shoot the total number of leaves in period between (20-07-2013 and 21-07-2012) to 84, which is still below the cutoff of 180 days


(4) What is a little ambiguous is the definition of continuous period (as quoted from page page 6 of https://www.gov.uk/government/uploads/s ... -v15.0.pdf)

`` The continuous period requirement is the minimum amount of time which a migrant must spend in employment or being active in the UK economy before being eligible to qualify for ILR.’’

If the above strictly holds then I would only attain 5 years of continuous employment (this is the key word, I think) on the 02-10-2017 ? Any thoughts on this please.

I would greatly appreciate advice/thoughts on the points above. Happy to dig more specific information if needed to address my above points.

Thanks very much.

wlshJ

[marcnath]

I would go look at the actual law, which is what should be the final determinant.

The law (Section 245HF. Requirements for indefinite leave to remain as a Tier 2 (General) Migrant or Tier 2 (Sportsperson) Migrant) seems to say
"The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 2 (General) Migrant"

Also, The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. So, if you had only entered the country on 1/10/12 and taken up the job then, as long as your total absence was under 180 days, you could have counted the qualifying period from 11/8/12.

Logic would dictate that a similar argument could be made for your case - if you meet the 180 day threshold treating the days between grant and employment as "absence".

But UKVI is not always logical

[wlshJ]

Thanks for your inputs, Marcnath ! I agree with your reasoning too (also, because it suits me !)
However, its a lot of money at stake and I don't want to earn a badge of refusal tbh.
I have called the Home office twice, and at both instances they seem to suggest that my 5 year qualifying period should be reached on the 12th August 2017 (-28 days). But, they also make it abundantly clear that whether or not I meet the eligibility criterion for an ILR is on my discretion. I don't want to get into a situation where the case worker becomes a deal breaker. There are some obvious cracks and ambiguities in the guidelines, I will wait to see what others have to say on this.

[wlshJ]

Hello board members,

I wondered if someone else has any more thoughts regarding my query above. I would be very much thankful for your thoughts on this. I am more than happy to clarify further if something is not clear in my question above.


Thanks for your help.

[marcnath]

Hello board members,

I wondered if someone else has any more thoughts regarding my query above. I would be very much thankful for your thoughts on this. I am more than happy to clarify further if something is not clear in my question above.


Thanks for your help.

The difference is just over a month and a half. You will satisfy the condition anyway by the time the decision is made.

Is there any reason why you may not just as well wait for the latter date and so eliminate any doubts ?

[wlshJ]

Fair point ! Yes, you are correct that I am could wait for little longer to avoid the confusion. In my defence, its a mix of personal and professional reasons that I wanted to settle my immigration status as soon as possible..changing jobs would be easier for one. But if there is no way around then thats it.

Thanks.

[secret.simon]

(3) Do folks think that the period between 11-08-2012 and 01-10-2012 could count towards (a) `gap’ in employment or (b) absences from the UK ?

It is not (b) as you were not absent from the UK. As you are a non-EEA citizen, it is straightforward to reconcile the visa stamps in your passport with your listed absences.

Following marcnath, I will also quote from the Immigration Rules directly, rather than from the guidance.

(b) Except for periods when the applicant had leave as a Tier 1 (General) Migrant, a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, a Tier 1 (Exceptional Talent) Migrant or a highly skilled migrant, the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant,..., to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor.

It is a tricky paragraph to interpret. Prima facie, it requires five years of employment and therefore you should only become eligible after 1-10-2017. It also talks of excusing any breaks in employment not exceeding 60 days. I am not convinced that the end of your PhD can be considered an end of employment.

Therefore I would counsel you to apply 28 days before 1-10-2017. May I also compliment you on the structured approach of your initial post. It was clear to follow and easy to advise on as all relevant information was provided.

The law (Section 245HF. Requirements for indefinite leave to remain as a Tier 2 (General) Migrant or Tier 2 (Sportsperson) Migrant) seems to say "The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 2 (General) Migrant"

The quotation is not complete. Reproducing the same for the sake of completeness.

(b) The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 2 (General) Migrant or Tier 2 (Sportsperson) Migrant, in any combination of the following categories:

• (i) as a Tier 1 Migrant, other than a Tier 1 (Post Study Work) Migrant or a Tier 1 (Graduate Entrepreneur) Migrant,
  (ii) as a Tier 2 (General) Migrant, a Tier 2 (Minister of Religion) Migrant or a Tier 2 (Sportsperson) Migrant,
  (iii) as a Tier 2 (Intra-Company Transfer) Migrant, provided the continuous period of 5 years spent lawfully in the UK includes a period of leave as:
  • (1) a Tier 2 (Intra-Company Transfer) Migrant granted under the Rules in place before 6 April 2010, or
    (2) a Work Permit Holder, provided that the work permit was granted because the applicant was the subject of an Intra-Company Transfer,
  (iv) as a Representative of an Overseas Business,
  (v) as a Highly Skilled Migrant, or
  (vi) as a Work Permit Holder.

[wlshJ]

Hello secret.simon,


thanks a lot for your comments. Yes, I am beginning to get convinced that I would need 5-years of continuous employment to qualify to apply for an ILR through a Tier-2 route.

Ohh..thanks for your kind words

[paradoxical]

Actually I am in a quite similar situation and I had almost concluded that the 5 years qualifying period would start from the date of Tier 2 visa granted and not from the start of employment. However, in my case, the wait is not as long as yours and I am, like you, keen to do the ILR as soon as I can.

In my case, I got my Tier 2 visa from 27th July 2012, but my job employment date was 13th August 2012. I switched visa within UK from student visa to Tier 2 after PhD as well. I have my appointment on 6th July but if the qualifying period is actually from the date of job (and not Tier 2), then I must reschedule it! ..
The reason I had concluded that the qualifying period starts from the start of Tier 2 visa (and not job start date which would be after tier 2 visa issue date) comes directly from the SET(O) guidance notes..

https://www.gov.uk/government/uploads/s ... -04-17.pdf
Under Section 5 ('When to apply'), on page 4, it says:
There is a qualifying period to complete in most of the categories on this form. It runs either from
the date on which you entered the UK with a visa in the relevant category; or, if you did not enter the UK with such a visa, from
the date on which you were first granted permission to remain in the UK in the relevant category

Based on this, I believe it is making it clear that the start date is from the date of getting the Tier 2 visa. What do you reckon based on this?

[wlshJ]

Hey !

I see, it does seem to suggest what are you saying is `correct'. I am a complete novice when it comes to interpreting immigration rules/laws, but as quoted earlier by more senior members of this forum that one should go back to the law rather than the guidelines. As you could see from above post, my impression is that the law seems to be pointing towards 5-years of continuous employment to make one eligible for an ILR. Having said that, I must repeat I am also a newbie in these issues. Perhaps someone else wants to weigh in ? I will wait in anticipation.

[secret.simon]

The SET(O) form cover a range of possible routes, both PBS and non-PBS, leading to ILR. That is why the form states, as you mentioned,

https://www.gov.uk/government/uploads/s ... -04-17.pdf
Under Section 5 ('When to apply'), on page 4, it says:
There is a qualifying period to complete in most of the categories on this form.
It runs either from the date on which you entered the UK with a visa in the relevant category; or,
if you did not enter the UK with such a visa, from the date on which you were first granted permission to remain in the UK in the relevant category

You can see from my quote from the Immigration Rules that the requirement for employment does not apply to SET(O) applications from a person on most Tier 1 routes and it presumably also does not apply to a person on the non-PBS Ancestry route or PBS dependents. The guidance note is generic in nature. The Rules are much more precise, sometimes almost surgically so, and I would be guided by them than the guidance.

Generally, if there is a broad interpretation and a narrower interpretation of a rule, assume the narrower one and aim towards it, as the narrower interpretation would be a part of the broad interpretation and therefore you are protected either way. But worth noting that I am neither a lawyer nor an immigration advisor.

[paradoxical]

Generally, if there is a broad interpretation and a narrower interpretation of a rule, assume the narrower one and aim towards it, as the narrower interpretation would be a part of the broad interpretation and therefore you are protected either way. But worth noting that I am neither a lawyer nor an immigration advisor.

Thank you for this and this becomes all the more important when you really do not want to leave any doubt (at least from your end) given the time and the fee of the application. I understand that we should go to actual rules rather than guidance but just one bit from Tier 2 Visa Policy guidance (so now we know that it is specifically about Tier 2):
The document is here:
https://www.gov.uk/government/uploads/s ... _04_17.pdf
In this document, on page 58 , clause 252:
You can apply for settlement under Tier 2 once you have reached 5 years continuous
leave in the United Kingdom.
And then on page 59, clause 256:
Your qualifying period can include time from the date your initial application (for entry
clearance or leave to remain) was approved.
Taken clause 252, and 256 together, it would suggest that we can indeed count the period starting from Tier 2 visa issue date. Or you wouldn't conclude this yet?

[secret.simon]

In this document, on page 58 , clause 252:You can apply for settlement under Tier 2 once you have reached 5 years continuousleave in the United Kingdom.

See Clause 253, the one that immediately follows and restricts Clause 252. I have also addressed exactly this point by quoting Immigration Rule 245HF(b) in my first post in this thread.
[quote=""secret.simon"]

The law (Section 245HF. Requirements for indefinite leave to remain as a Tier 2 (General) Migrant or Tier 2 (Sportsperson) Migrant) seems to say "The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 2 (General) Migrant"

The quotation is not complete. Reproducing the same for the sake of completeness.

(b) The applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 2 (General) Migrant or Tier 2 (Sportsperson) Migrant, in any combination of the following categories:

• (i) as a Tier 1 Migrant, other than a Tier 1 (Post Study Work) Migrant or a Tier 1 (Graduate Entrepreneur) Migrant,
  (ii) as a Tier 2 (General) Migrant, a Tier 2 (Minister of Religion) Migrant or a Tier 2 (Sportsperson) Migrant,
  (iii) as a Tier 2 (Intra-Company Transfer) Migrant, provided the continuous period of 5 years spent lawfully in the UK includes a period of leave as:
  • (1) a Tier 2 (Intra-Company Transfer) Migrant granted under the Rules in place before 6 April 2010, or
    (2) a Work Permit Holder, provided that the work permit was granted because the applicant was the subject of an Intra-Company Transfer,
  (iv) as a Representative of an Overseas Business,
  (v) as a Highly Skilled Migrant, or
  (vi) as a Work Permit Holder.

[/quote]

Essentially, you can not combine Tier 4 leave with another leave, except under the provisions of Long Residence. You can combine most Tier 1 & 2 leave and leave under some pre-PBS categories.

[paradoxical]

Essentially, you can not combine Tier 4 leave with another leave, except under the provisions of Long Residence. You can combine most Tier 1 & 2 leave and leave under some pre-PBS categories.

Thank you very much. That clears it for me, it is not worth taking risk over this hoping that the caseworker will interpret it differently. I will reschedule..
Thanks Secret.Simon for your insights and OP for bringing this up in the first place. If it wasn't for this post, I would have gone with my originally scheduled date (which may or may not have been fine in the end )..
if we could wait for so many years, then we can wait for another few days too

[wlshJ]

Yes, I agree with your line of arguments secret.simon. I have one last questions (hopefully). Its with reference to my point (3) in my initial post above. I think I am convinced that in my case the earliest I could submit an application for an ILR would be 01-10-2012 (-28 days). However, there is one thing which is bothering me if I choose to apply 28 days before the start date of my actual employment. As I mentioned earlier that I took a short trip to India between 13-09-2012 and 30-09-2012 (returning to the UK on 01-10-2012). I can manage to gather letters of absences from my previous employers testifying my paid annual leaves and work related leaves (since 01-10-2012), except for the above period where loosely speaking I was in a `transition period' from a student phase to employment phase (don't even know if such a terminology exists !) Any thoughts on this ? In other words what I am meaning to ask is if I would need a `third party' (my former PhD supervisor) to testify the above trip or I could draft my own letter for this. If you think this could again be in an unknown territory then I might have to wait until Oct. to submit my application.

Also, could I quickly clarify that the day of departure (from the UK) and day of arrival (to the UK) do not count towards the total number of absences from the UK and the total number of allowed absences should not exceed 180 days in any of the five years of qualifying period.

Thanks very for your time and help.

[wlshJ]

Hello people !

Wondered if more experienced forum members have any thoughts on my last point above ?

Thanks a lot.

[wlshJ]

Hello again !

It might be seen as pestering, but I was curious to know if someone with a better understanding of the immigration rules than me has any thoughts on my last point above.

For the sake of brevity and clarity, I will try to summarise my specific query again.

My question is as follows:

My Tier-2 General was first granted on 11-08-2012 (in the UK) but started my employment from 01-10-2012. I was still a student between this period.
As agreed above, my five year qualifying period begins from 01-10-2012.
I am thinking of applying for an ILR on (say) 04-09-2017 (27 days before 01-10-2017). I have official letters testifying all the UK absences w.e.f. 01-10-2012, but I was away on a holiday between 13-09-2012 and 01-10-2012. I am curious to know if it would be suffice to self-validate this holiday ? If not, I don't know who can testify this trip for me--primarily because my employment (not sponsorship) only came into force from 01-10-2012 and I was a student on a Tier-4 when my leave to remain under Tier-2 was first approved.

I don't know if I have made my point clear enough.

Thanks.

[iworker]

IMO
you dont need a letter to show anything for this short holiday.
you could apply for ilr 28 days before 11-08.
like i said, the above is IMO

[wlshJ]

Hello people,

apologies if this seems as a redundant post but I have done my homework (to some extent) and could not find conclusive answers to my questions and this is why this post.

I am appearing for an ILR premium service appointment on the 06-10-2017. I am currently on a Tier-2 General visa and claiming my qualification through this route. My leave to remain under this category was first granted on 11-08-2012 (within the UK, I was on a Tier-4 visa since 09-09-2009)

My questions:
(1) I wanted to know if the date of application would be the date of submitting the application in person ?

If so, am I correct in the calculation of my qualifying period as follows

Year 1: 6-Oct-2017 to 7-Oct-2016
Year 2: 6-Oct-2016 to 7-Oct-2015
Year 3: 6-Oct-2015 to 7-Oct-2014
Year 4: 6-Oct-2014 to 7-Oct-2013
Year 5: 6-Oct-2013 to 7-Oct-2012

(2) (2) In Set O application form, section 7.13.
https://www.gov.uk/government/uploads/s ... -04-17.pdf
How long have you lived in the UK? (A related question would be section 6.1)

Since my application is based on my stay under a Tier-2 leave to remain, I believe the answer would be the time between 11-08-2012 and 06-10-2017. Although, I first came to the UK on a Tier 4 visa on 09-09-2009. But I am excluding that period since it does not form part of my qualifying period for this application. Is this correct?


(3) If the above is true then a similar argument holds true for section 6.1 too ?


(4) Am I allowed to ignore the box on page 78 ?
"For the period before you were granted leave as a Tier 2 migrant, documents showing that you met the relevant requirements of the immigration rules.”


Thanks for your help and time.

[wlshJ]

Hello people,

could someone please provide any thoughts on my questions above.

Thanks