Advice related to ILR application after SKW Visa 5 yr route

[phand00]

Hi Folks - Would appreciate some advice here - we have been very stressed with the whole process and messed up a few applications. Here's the background:

- I am on SKW (prev T2 general visa) in the UK since 01.02.2018. My wife came to the UK on a dependent visa on 22.05.2018. Although, her visa vignette shows 11.05.2018 as the start date but she entered the UK on 22.05.2018
- I changed my employer in 2022 and hence my BRP got extended to 18.07.2023 whilst my wife stayed on the original BRP and her BRP expired on 14.03.2023

We wanted to extend my wife's BRP and she unknowingly filed the Family route visa (paid £2608 for IHS and application fee). She submitted this on 13.03.2023, before the expiry of her BRP. We were told this was wrong and then she filed the SKW dependent extension (paid IHS and App fee) and varied the application. I believe the previous family route visa was canceled thereafter.

Now we are at a stage where:
- my wife's family route visa application, which was wrong, should be canceled. However, she didn't upload the evidence for it.
- my wifes' SKW extension, which should be correct, is in the system. We have not uploaded the evidence for it as yet but she has time till 04.06.2023 to do so.

My questions now are:
- Do I need to do anything to get the refund on the Family route visa?
- Is there a way that I can vary her application again and submit an ILR for her along with me after 01.05.2023 (assuming 28 days before her 5 years in the UK).
- When can we apply for ILR if we would like to do it together?

I'd like to save the BRP extension money and instead do her ILR along with me when I can. While I am eligible to apply for ILR, she is not as yet and won't be till the end of April. What would the guidance be here?

I'd really appreciate it if someone kind can suggest what to do here. It's a confusing situation and I am feeling helpless. Please suggest what I could do best here.

Thanks much.
Prabhat

[phand00]

anyone who can help here please? would really appreciate some guidance.

[zimba]

You apply first using form SET(O) for ILR. She will apply later by varying her extension. She simply needs to apply for a new SET(O) application when eligible.

You should get the refunds later

Immigration and nationality refunds policy
Process to request a refund for services relating to an immigration application or service

[phand00]

Thank you @zimba for your reply. when I create a Set (o) for myself, it allows me to add her as a dependent. Should I not do that? when I did that, it doesn't ask if there is another HO application in process for her, but it did for me. Should I do her application with me or do it separately?

Thanks for your help - quite confusing this is. You all are saviors to help here, much appreciated.

[phand00]

You apply first using form SET(O) for ILR. She will apply later by varying her extension. She simply needs to apply for a new SET(O) application when eligible.

You should get the refunds later

Immigration and nationality refunds policy
Process to request a refund for services relating to an immigration application or service

Do I submit her application with mine or do a fresh one for her?

[zimba]

I suggest a separate application

[phand00]

I suggest a separate application

Thank you Zimba, much appreciated. I spoke with a few people who said I could vary the application as you suggested here and it should be okay. However, I spoke with an immigration consultant today who said that even varying the application will not help because the Home office would consider her new application (ILR) as on the date of the first application. Is that correct?

So for ex,
13th March - Family visa application was submitted, which was wrong
16th March - SKW extension submitted, varying from Family visa application, which is correct but evidence not uploaded as yet
so when she does her new application on 1st May and varies from the SKW extension, Home office will consider her application date as 13th March, where she would not have completed 5 years (minus 28 days) in the UK..

if the above is true, then in that case, the application could be rejected. What is your steer on this please?

Thanks much for your reply.

[zimba]

The date of application is not necessarily used to determine eligibility for an in-time ILR application.

The caseworker can use the date of the decision to calculate lawful residence until the day the ILR decision is about to be made. This is because any time spent under Section 3C also counts as lawful residence.

What is Section 3C ?

When you apply for a new application before visa expiry (i.e. an in-time application), the provisions under Section 3C of the Immigration Act 1971 get engaged when your visa expires. This means your current visa and all of its privileges are automatically extended (after your visa expires) until a decision is made on your pending application. Note that the time spent waiting for the outcome of your pending application is still considered lawful residence. So you keep accumulating lawful residence time while waiting. Eventually, when the case worker processes your application, they will count your lawful residence up to that point to see if you are eligible for ILR. This is how you can qualify for ILR without any issues.

This is made clear under the paragraph CR 6.1 of the immigration rules :

CR 6.1. The continuous residence periods in CR 2.1., CR 2.2. and CR 2.2A. will be calculated by counting back from whichever of the following dates is the most beneficial to the applicant:
(a) the date of application; or
(b) any date up to 28 days after the date of application; or
(c) the date of decision; or
(d) for a person applying for settlement on the UK Ancestry route, the date of their last grant of permission.

What is the 28-day concession ?

The 28-day concession means you will be eligible for ILR (i.e. ILR can be granted) within 28 days of completing your qualifying period. In a nutshell, this means you can get ILR without fully completing your full qualifying period. This concession by UKVI applies to all ILR applications.

So what is the context for 'apply within 28 days of becoming eligible' ??

The whole 'apply within 28 days of becoming eligible' is due to historical reasons and most applications do not understand the context of it at all. In the past, applicants could apply for a same-day decision (in the old UKVI premium visa centres), so the date of application and the date of the decision were effectively the same. In those circumstances, if such a person applied earlier than the date above, they would not be eligible for ILR on that date, hence their application could be refused. So if you are not eligible on the date of the ILR decision, then this could be problematic.

This is no longer an issue as you are required to apply online now and your application is NOT decided until after your biometrics is enrolled. So the date of application and the date of the decision are no longer on the same day. Given that your lawful residence is calculated on the date of ILR decision, the date of application is no longer that critical anymore and most applicants could continue to accumulate lawful residence until the day UKVI is about to make a decision on their ILR. The date of the ILR decision is therefore the most important date and this date almost always will be AFTER the date of application and the biometrics.

So, how can you calculate your earliest date of ILR eligibility ??

1. You will assume a date of ILR decision (this can be the date of your biometrics if applying for priority service)
2. You then subtract (Your ILR qualifying period - 28 days) from that date, so counting backwards. Your ILR qualifying period could be 3, 5 or 10 years, depending on your immigration route.
3. This new date should be on or after the date of first visa approval.

Sources/links

Immigration rules: https://www.gov.uk/guidance/immigration ... -residence
Continuous residence guidance: https://assets.publishing.service.gov.u ... idence.pdf
The guide for 'Leave extended by section 3C': https://assets.publishing.service.gov.u ... _leave.pdf

There are many approval stories on the forum for the advice given.
A happy applicant with their ILR success story: https://www.immigrationboards.com/viewt ... 1#p2176885
Another happy ILR success story: https://www.immigrationboards.com/viewt ... 5#p2176903

[phand00]

thank you, Zimba, you my friend are a legend. Can you believe I paid money for this consultation and thats what I got! I have seen the document and you are absolutely correct.

Last question if I may please - my wife's entry to the UK was 22.05.2018 although the visa vignette on the passport has the date of 11.05.2018. Do I calculate her ILR eligibility as 28 days less than 22nd or 28 days less than 11th?

Appreciate your help doing this without charging money! You are a big life savior! Thank you again.

[zimba]

Over the years I have seen many cases in which bad or even incorrect advice was given to migrants by immigration consultants.
Under the skilled route, the date of the first visa issue should be used. The date of arrival is irrelevant

[phand00]

Thank you again, Zimba. This was another advice he gave that it should be the date of arrival and not the visa vignette date. Such a shame!

Thank you for your help here - much appreciated. Happy to buy you a coffee if you have a link or something. Otherwise you have my blessings and grattitude.

[phand00]

Zimba, I spoke with my immigration advisor again and he pointed me to 34GB rule of immigration laws. I see the 34BB. It’s very confusing what 34GB says. Could you please suggest what it means. My advisor says that even if I varied the application, the new application date is considered as the date of the first application. Which is contradicted in 34BB but confused again in 34GB. Any thoughts please?

[phand00]

I can’t post screenshots but those are two rules I’m confused with. To understand which date will be considered for application? The first / old application or the new /2nd application. Rules 34BB and 34GB js the contradicting one.

[zimba]

I already explained the reasoning in detail above and showed you why the date of the application isn’t important at all. The fact that the date of the original application is preserved is due to the provisions under the Immigration Act 1971. This is because for legal reasons you cannot have multiple applications and any new application made while having a pending one, can only proceed if it becomes a variation of that pending application.

This advice has been given to many many people before without any issues. What your advisor says is in fact flat out wrong as otherwise, no one would be able to vary ANY application to ILR which is ridiculous. It makes no sense and the official guide clearly says otherwise

[phand00]

Thanks Zimba.

Looking at 34BB: It says:
"Paragraph 34BB of the Immigration Rules sets out when and how an application is varied.
Although the variation rules apply to applications made under the Immigration Rules made both in the
UK and overseas, they are currently only applied in practice as variation requirements to applications made in the UK. They will be rolled out to applications made outside the UK when the technology is in place.
The application to vary will be decided according to
the Immigration Rules in place on the date the application to vary was made."

and then 34GB says:

34GB. Where a variation application is made in accordance with paragraph 34BB, the date the variation application (the new application) is made is deemed to be the date the previous application was made prior to it being varied (the old application).

The 34GB seems to contradict 34BB, isn't it? Why do I feel the 34GB says the date of new application will be considered as the date of old application?

Would appreciate the advice, I understand that I should make the application and people have done it; just want to get this right. Thanks again!

[zimba]

It is not conflicting. It explains how the date of the application is determined for the purposes of the immigration rules. So if for example you applied 3 months ago and the immigration rules have changed in meantime, if you vary that pending application to ILR now, then the date of the ILR application will be the same as your original application. So the old rules in place will be used to evaluate your ILR application rather than the new rules.

The date of application is relevant when the case worker needs to determine what rules were in place, however, your ILR qualifying period calculation is not determined by it as I explained. So these paragraphs have no relevance to your case, why are you wasting your time reading all this ??

[phand00]

Hey Zimba, I thought I will tell you what happened with my wifes application. As you suggested, she got her ILR this week! Thank you for your correct guidance that not only helped save money but also save the time to do the brp extension and then do ILR. She did her ILR application and was granted it yesterday - explained in the cover letter about the variation and all done.

Thanks again for your correct and free advice! You're a savior!

[zimba]

Hey Zimba, I thought I will tell you what happened with my wifes application. As you suggested, she got her ILR this week! Thank you for your correct guidance that not only helped save money but also save the time to do the brp extension and then do ILR. She did her ILR application and was granted it yesterday - explained in the cover letter about the variation and all done.

Thanks again for your correct and free advice! You're a savior!

No problem. I am happy it all worked out