ILR Set(M) - applied too early and application rejected.

[makpat]

Dear all,

First of thanks to all the posters and responders on this forum. It's a wealth of information and i've been reading it plenty over the last few weeks and your content and responses are highly valued.

So slight novel below, but my situation is that I applied for ILR (SET(M)) yesterday at a PSC appointment. My application was rejected as I have not completed a continuous period of leave to remain of 60 months.

Timeline:
05/06/13: Entered UK as Tier 1 migrant partner. (Husband was Tier one Highly Skilled)
20/11/13: Granted leave to remain as spouse of settled person (Husband transferred to ILR same date)
31/03/16: Renewed leave to remain up until 28/10/18

I have been in the UK for 64 month 8 days.
Dependant on Tier 1 migrant partner: 5 months 15 days
Dependant on Settled Person: 58 months 23 days

I was unaware that my time while being a dependant on a Tier 1 did not count towards my 60 months. Taking into account the Visa expiry 28 day grace period, I applied 10 days too early.

The rejection letter states:
"in accordance with the consent you gave on your application form, we are now treating your application as an application for limited leave to remain". You have 10 days to pay £500 for immigration health surcharge. If not paid your application for leave to remain will be treated as invalid, you will not be granted leave to remain, you will not be refunded.

I was not aware of any consent I have given on my application to transfer my application to limited leave to remain. This means my path to ILR time is reset, and moves to a 10 year period (beginning now) rather than the 5 year route (beginning almost 5 years ago).

My preference is still to apply for ILR by premium service appointment. (Although this is based on me getting an appointment between 23/10/18 - 28/10/18, but will do a postal application if necessary).

The Home Office still hold my passport and application documents which will be returned to me once i've either paid the £500 health surcharge, or after a 10 day period after which my application for limited leave is invalid, so at this stage, and not even I'll have my documents back in time to re-apply, or even if i can re-apply...

My questions are:
- Am I still eligible to apply for ILR before my current visa expires, or is that now defunct now i've been nudged over to the 10 year route?
- If i can still apply for ILR, do I need to submit a completely new application?
- And can I get documents back asap from Home Office so i can reapply?
- I am guessing an appeal is a complete waste of time and money...?

Thanks all,
Makpat

[CR001]

The online form would have had a Declaration page which you were required to 'sign' and agreed to. It would have stated something very similar or identical to the paper form on page 54.

By the applicant
I hereby apply for indefinite leave to remain in the UK for myself and any children under 18 listed in this
form on the basis of my marriage to, or civil partnership with, the person who has signed the declaration
below. I accept that where I do not qualify for indefinite leave to remain but fall for a grant of limited leave,
my application will be treated as an application for limited leave and I may be asked to pay an immigration
health surcharge, under the Immigration (Health Charge) Order 2015. I accept that the Secretary of State
will treat this application as invalid, retain the application fee and not grant leave, if a requirement to pay
a surcharge is not met. I declare that we are still married, that we are living together as husband and wife
and intend to do so permanently, or that we are still registered in a civil partnership, that we are living
together as civil partners and intend to do so permanently. The information I have given in this form is
complete and is true to the best of my knowledge.

[makpat]

Thanks for that CR001.

Do you know if I'm still eligible to apply for SET (M) ILR, or is this forfeited now that my application has been rejected?

Makpat

[CR001]

You can probably apply again before your visa expires on the 28th and will likely have to pay the fees again.

[vinny]

Normally, they should return the fees for any invalid applications.

Moreover, applications:

Request to withdraw an application that is not yet valid – applicant has extant leave at time of request to withdraw
If a migrant with extant leave requests the withdrawal of their application before they have fulfilled the validation requirements, you must notify them using ICD.5142, that their application has been withdrawn but that, at the point of withdrawal, the application was not yet valid. The applicant’s extant leave will continue. You must refund the application fee

As they haven’t curtailed your leave, it remains valid. Apply for SET(M) from Tuesday, 23 October 2018 and before your leave expires.

Good luck!

[bluebird12]

Op has been issued LTR 23 days short of completing 60 months period , would his application be successful even though if he apply again ILR after 23 October 2018 ?
Or might be successful on discretionary basis ?

Or might be apply again FLR (m) extension to complete 60 months and then apply again ILR ? Any way it is very complicated situation involving lot of cost ?

[makpat]

Thank you Vinny and CR001 for your additional information. You've given me hope

So am putting together a plan that am hoping can pull off...

1. Want to attempt to get another PSC appointment for next week in the midnight lottery. I understand I can get a refund if I need to cancel, as long as i do not submit an online application, and as long as i do this more than 48 hours from my appointment time.

2. At that point will contact the Home Office to discuss reapplying using the documents they have, and discussing whether i can withdraw my original request citing ICD.5142.

I'm also seeking advice from immigration lawyers. Any recommendations here? Am hoping i can clarify my situation in the next few days.

[vinny]

This means my path to ILR time is reset, and moves to a 10 year period (beginning now) rather than the 5 year route (beginning almost 5 years ago).

Did the applicant’s consent included being treated on a ten year path instead of the five year path? Did the caseworker inform the applicant that they will only consider a FLR application under the 10 year path?

Op has been issued LTR 23 days short of completing 60 months period , would his application be successful even though if he apply again ILR after 23 October 2018 ?
Or might be successful on discretionary basis ?

Or might be apply again FLR (m) extension to complete 60 months and then apply again ILR ? Any way it is very complicated situation involving lot of cost ?

There was no notice about curtailing extant leave. They stated that, in line with the applicant’s consent, they will treat his indefinite leave to remain application as a further leave to application, subject to the IHS being paid. They will refuse the application and keep the application fees, if the IHS is not paid.

However, they also generally permit an applicant to apply for ILR no sooner than, (i.e. from), 28 days prior to the completion of the qualifying period. This permission is clearly stated on the SET(M) Guidance.

5. When To Apply
You and any children under 18 who are applying with you should apply before the end of your/their permitted stay in the UK when you are nearing completion of the qualifying period required by the Immigration Rules.

Please do not apply more than 28 days before completing that period. If you apply earlier than that, your application may be refused. If that happens, we will not refund the fee and you will have to pay again when reapplying.

Given that the applicant has extant leave on a date when applying for SET(M) is permissible, it was unnecessary for them to treat the ILR application as a FLR application, subject to IHS.

Unfortunately, they were relying on the applicant’s consent, instead of thinking outside the box of the consent.

Moreover, there seems to be nothing preventing the applicant from doing as consented:
1. Allow them to treat the SET(M) application as an FLR application, subject to paying the IHS on time.
2. Pay the IHS on time.
3. Before they decide, vary the FLR application to an SET(M) application on/from the permitted SET(M) application date, or after completing the qualifying period.
4. Then, after getting ILR, apply for a refund of the IHS.

If an applicant is eligible for ILR on the date of the decision, then this variation should be okay.

However, If they have already decided to immediately put the applicant on the FLR(FP) path, on receipt of the IHS payment, under D-ILRP and GEN.1.15., etc., then it may be fortunate that failure to pay the IHS prevents them from immediately granting FLR(FP) on the 10 year path. It may be better to withdraw the SET(M) application before they grant the FLR(FP) application. Moreover, if an applicant still has extant leave under the 5 year route after a refused SET(M) application, then a refused SET(M) application may also be preferable to being switched to the 10 year route.

Strangely, D-ILRP does not seem to explicitly cover the case when the applicant fails to satisfy D-ILRP.1.1., but may continue to qualify under D-LTRP.1.1., i.e. the five year route.

It seems a bit ridiculous for caseworkers having to go down this complicated route simply because of a premature ILR application.

If caseworkers are prevented from using discretion
i) to defer an ILR application until the permitted application date, all within a few days and within the applicant’s extant leave or
ii) to consider a premature ILR application as a FLR application, subject to the IHS payment, under the five year route,

then their application of such a policy may be similar to another classic example.

[makpat]

Thanks again for all the information.

To update on my situation...

- I called the Home Office helpline today and explained i wanted to apply for ILR next week, however this was in jeopardy as the PSC where I applied was holding my documents. The person i spoke to was very helpful and suggested I go the PSC (is an hour from my home) and ask for my documents back. I thought it sounded a bit random but he was sure it would be ok.

- I went to the office, and after some initial queries on why i was there, I was very surprised when they let me through security without an appointment. Apparently you can do this if you want to withdraw your application.

- I was able to discuss my options, and after a long wait (approx 3 hours) I withdrew my application and got all my documents back. I'm still not clear as to why i was not offered my documents back on Saturday. I queried this with them and they said it was standard practice to offer the 10 year route when people apply for ILR too early...

- With such a long wait, I had time to kill so was checking for PSC appointments, and I managed to get one for next week.

I am extremely relieved that I can apply for ILR again, and this time will be within my eligibility period.

My next challenge (besides my pending successful application) is to query the initial charge, as I have currently paid the full amount twice. They suggested that as my application had been processed, i wasn't able to get a refund, however have not yet ruled it out, and have given me an email address where I can take this up. It is pscappointmentrefunds@homeoffice.gov.uk for reference. I will let you know how i get on there!

Thanks again
Makpat

[vinny]

Well done!

See also another example.

Make the SET(M) application when eligible and before expiry of leave.

it was standard practice to offer the 10 year route when people apply for ILR too early...

They may offer to consider the application under the ten year route, but approval isn't certain.

I have seen a report on another forum, where an applicant together with three children mistakenly applied on FLR(FP) (10 year route under D-LTRP.1.2.) when they satisfied all the requirements for FLR(M) (5 year route under D-LTRP.1.1.). They were refused!

Satisfying D-LTRP.1.1. doesn’t imply satisfying D-LTRP.1.2., probably because of R-LTRP.1.1.(d)

(iii) paragraph EX.1. applies.

requirements.

Instead of reapplying on FLR(M), they appealed. After a successful appeal, they were granted leave on the ten-year route.

[vinny]

Any updates?

[makpat]

Hello,

Slow reply but yes do have updates. I successfully applied for ILR and was given the decision within a few hours last Wednesday.

I was upfront with them about my earlier application - i included a short cover letter, as well as copies of the letters outlining the original invalid application, as well as the letter i received to state that i had withdrawn that application.

VERY(!!!) relieved to have that sorted and not have been forced down a 10 year settlement route.

Also, for anyone who wants to choose where they get their PSC appointment, i would highly recommend the Cardiff office. Very open and upfront on every stage of the process, and they even give you a map of Cardiff with the local cafes, shopping areas, and banks, as well as an estimated processing time. It was a very pleasant experience.

Now need to work out if there is a way i can get my original fee back.....will keep you updated on that!

Thanks for all your support.

Makpat

[bluebird12]

Congrats, indeed good news

[vinny]

Congratulations!

I think returning the previous fees would be reasonable. Not returning it may be unreasonable.

They suggested that as my application had been processed

If they had processed your application, then a sensible caseworker would have put the previous application on hold until an appropriate date, prior to expiry of leave, instead of putting an applicant on an inappropriate, unnecessary and refusable application, under a wrong path.

[K4luk]

Thanks again for all the information.

To update on my situation...

- I called the Home Office helpline today and explained i wanted to apply for ILR next week, however this was in jeopardy as the PSC where I applied was holding my documents. The person i spoke to was very helpful and suggested I go the PSC (is an hour from my home) and ask for my documents back. I thought it sounded a bit random but he was sure it would be ok.

- I went to the office, and after some initial queries on why i was there, I was very surprised when they let me through security without an appointment. Apparently you can do this if you want to withdraw your application.

- I was able to discuss my options, and after a long wait (approx 3 hours) I withdrew my application and got all my documents back. I'm still not clear as to why i was not offered my documents back on Saturday. I queried this with them and they said it was standard practice to offer the 10 year route when people apply for ILR too early...

- With such a long wait, I had time to kill so was checking for PSC appointments, and I managed to get one for next week.

I am extremely relieved that I can apply for ILR again, and this time will be within my eligibility period.

My next challenge (besides my pending successful application) is to query the initial charge, as I have currently paid the full amount twice. They suggested that as my application had been processed, i wasn't able to get a refund, however have not yet ruled it out, and have given me an email address where I can take this up. It is pscappointmentrefunds@homeoffice.gov.uk for reference. I will let you know how i get on there!

Thanks again
Makpat

Just wondered if you had any update on getting a refund from the above quoted email?

[Mazzoni]

Hi @makpakt
I have similar a very similar experience as I applied 16 days earlier, because I thought the period starts from the date of visa issue and not the date of entry (my visa was issued 60 days before I entered the UK as I was allowed up to 3 months to enter the UK at that time). But my application was rejected as apparently, UKVI counts from date of entry.

Anyway, I can see on your last update that you were successful in getting ILR after reapplying and paying the fees again. Have you managed to refund your first application fees and immigration health surcharge?

Please advise !!!

[Jojo19]

Hi All,

Does anyone have sucesss stories from being refused to granted?

I was refused for applying too early on the 5yr partner route

I was initially told the biometric day was application date but that was not the case. However my two 30 months leave to remain was not up to 60months it fell short.

I need advise on what to do as i dont want to take the 10yrs route and my visa is now expired

[Mazzoni]

Hi Jojo19
Have you had any answers for your case?

[Jojo19]

Hi Jojo19
Have you had any answers for your case?

no not yet. I wrote back to them still waiting for a response.

How about you?