Dear All,
My wife's same day ILR application is refused based on the reason that they were not satisfied about 5 years continuous stay. I have attached the reason of refusal and my explanation which I intend to use for review. Can someone comment if it is worth a review. Given that here visa expires on 5th December 2017 , if the review is unsuccessful the only option is to go back to India and do a fresh application.
Tire 2 ( Dependent) History
Date arrived in The UK 3rd January 2013
Date granted Visa category duration of on Tier 2 (general)
19-Dec-12 Tier 2 (Dependant) 12-Dec-12 to 30-June-2013
01-Aug-13 Tier 2 (Dependant) 01-Aug-2013 to 04-June-2015
10-Jun-15 Tier 2 (Dependant) 10-June-15 to 05-Dec-2017
Reason for Refusal as stated in the letter.
In considering your application it is noted you arrived in the United Kingdom on 3rd of January 2013 with Tier 2 Partner entry clearance valid from 19th December 2012 to 11 December 2014 you were subsequently granted further leave to remain as stated above. Therefore, the Secretary is not Satisfied that you have completed a period 5 years in the United Kingdom as dependant spouse of Points Based system migrant.”
Your application is therefore refused under paragraph 319E with reference to paragraph 319E(d).
[/highlight]Appeal: After reading the explaining carefully multiple times, I am still not clear what was the exact reason for refusal as I can draw multiple conclusion as to why the caseworker may have refused the application to grant the further leave to remain.
A) The case worker has counted the 5 years continuous stay from 3rd January 2013 when I entered the UK and not from 19th December 2012 when I was first granted the entry clearance under Tier 2 dependent visa.
- If the above situation holds true than, I think an error in judgment might have happen from the caseworker as the Home office guideline on Indefinite leave to remain: calculating continuous period in UK explained on page number 14 reads as follows
“The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the relevant 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry. If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation.”
To confirm the interpretation of above guidelines, a telephonic consultation was taken by calling the UK Home Office inquiry line on the morning of 8th of November 2017 where the immigration advisor confirmed that I should count my continuous period from 19th of December 2012
My application was based on the information provide as above in guideline issued by Home office, according to which I am entitled to count my 5 year period from 19th of December 2012 and can submit a settlement application up to 28 days before they would reach the end of the specified period. Following the information an application was submitted on 30th November 2017 which was covered under the above rules
B) The second conclusion I can draw is that, the casework did calculate the 5 years continuous residency period from 19th December 2012, however as my current permission to stay expires on 5th December 2017 making the caseworker feel that I might not have a continuous visa to cover 5 years of stay .
- If that is the situation, than again I believe an error in judgment may have occurred, As the guidance say that I am eligible to submit an application 28 days before the end of 5 years of continuous stay as per information on page 14 and 15 listed on on Indefinite leave to remain: calculating continuous period in UK guideline. However, when I read the guidelines initially I was not sure about the interpretation of the guideline and hence decided to call the Home office inquiry line. A call was made on 23rd of November 2017 between noon and 1:40pm to the helpline number where one of the home office advisor “Holly” (recording of the call can be provided )advised me that it is perfectly ok to submit the application on 30th November 2017 and this should be no problem as even though my current permission to stay expires on 5th December 2017 ( just a few days before I complete 5 years of continuous stay) I am still covered under the 28 days eligibility criteria to submit my application and also as the on the date of my application I will still have illegal permission to stay in the UK. This was not the only call made to helpline to confirm the above information, A call was made on 22nd November 2017 where an advisor confirmed the same information stating that am application is legitimate as I am applying 28 days prior to complication of my 5 years of continuous stay .
I believe my application was made following as per the guidelines stated my Home office and supported my information obtained from telephonic consultation with home office inquiry advisors. Based om the supporting information proved above I kindly request the Administrative review officer to please freshly review my application and grant me the permission to Indefinite leave to remain in the UK.
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