Confusion with the ILR qualifying period(DONOTAPPLY28DAYSB4)

[nvr]

Dear Guys,

Need your advise please and thanks in advance for the great work you do.

I got my "Highly Skilled Migrant" VISA on 03 May 2007 and I came to the UK on 19 May 2007. Then after 2 yrs on that VISA, I got it extended for next 3 yrs as Tier 1 (General) (due to expire on 03 May 2012). However, it is unclear when is the latest date I could apply for my "Indefinite leave to remain" (plan to attend in person @ one of the PEO).

The UKBA site says do not apply 28 days before your qualifying period - could you please help me understand (in my case), does the qualifying period starts from the VISA issue date of (03 May 2007) or the date I entered the UK (19 May 2007)?


In my case:

A> If the qualifying period starts from my First VISA issue date i.e., 03 May 2007, I will be eligible to apply latest from 06 APR 2012 (VISA expiry date 03 May 2012 MINUS 28 days = 05 APR 2012)

B> If the qualifying period starts from my first port of entry i.e., 19 May 2007, I will be eligible to apply latest from 22 APR 2012 ((5 yrs from first entered UK would be on 19 May 2012 MINUS 28 days = 21 APR 2012)

Please could you advise which of the above scenarios is TRUE in my case?


Kind Rgds,
PA

[legalalien]

B applies to you, time starts from date of entry to UK not the date of VISA issue. so you can apply 28 days before the 19th of May

[rdrp]

Dear Guys,

Need your advise please and thanks in advance for the great work you do.

I got my "Highly Skilled Migrant" VISA on 03 May 2007 and I came to the UK on 19 May 2007. Then after 2 yrs on that VISA, I got it extended for next 3 yrs as Tier 1 (General) (due to expire on 03 May 2012). However, it is unclear when is the latest date I could apply for my "Indefinite leave to remain" (plan to attend in person @ one of the PEO).

The UKBA site says do not apply 28 days before your qualifying period - could you please help me understand (in my case), does the qualifying period starts from the VISA issue date of (03 May 2007) or the date I entered the UK (19 May 2007)?


In my case:

A> If the qualifying period starts from my First VISA issue date i.e., 03 May 2007, I will be eligible to apply latest from 06 APR 2012 (VISA expiry date 03 May 2012 MINUS 28 days = 05 APR 2012)

B> If the qualifying period starts from my first port of entry i.e., 19 May 2007, I will be eligible to apply latest from 22 APR 2012 ((5 yrs from first entered UK would be on 19 May 2012 MINUS 28 days = 21 APR 2012)

Please could you advise which of the above scenarios is TRUE in my case?


Kind Rgds,
PA

As per the modernized guidance, you will be able to apply 28 days before your visa date

[linkers]

I would agree with rdrp. You can apply 28 days before the 5th anniversary of your visa date, as you entered UK within 90 days of getting visa.

[nvr]

I would agree with rdrp. You can apply 28 days before the 5th anniversary of your visa date, as you entered UK within 90 days of getting visa.

Dear linkers & rdrp - thank you for you advise. However, there is ambiguity, as I have called up home office to enquire and the first lady said the same, 28 days before my VISA expiry (since I've entered UK within 90 days of my VISA issue date). After an hr I called up to clarify few more questions, then the other guy advised me it is 28 days before (5 yrs from my port of entry date), same advised by 3 rd guy (called up again for a 3rd opinion).

I wud really appreciate, if you can provide any reference to your comments "As per the modernized guidance, you will be able to apply 28 days before your visa date", has this been stated specifically anywhere?

Thank you so much once again for your valuable time & advise.

Kind Rgds,
PA

[nvr]

B applies to you, time starts from date of entry to UK not the date of VISA issue. so you can apply 28 days before the 19th of May

Thank you legalalien, you could very well be right. But doesn't sound logical, consider a scenario:

> Assume I got my VISA on 03 MAY 2007 and I came to the UK on 30 MAY2007 (exactly on the 28th day after my VISA was issued)

> Now for ILR, since I cannot apply 28 days before my qualifying period, which would be 03 MAY 2012, which coincides with the expiry date of my current VISA.

> I have to be absolutely sure, I get an appointment on that day, since I cannot apply a day before or a day after and even if I post my application it may reach on any date, say 02 MAY 2012 which is 29 days before my qualifying period, that is not acceptable nor 04 MAY 2012 since my VISA is already expired.

But if this is what the rule is, it certainly need changes. Thanks for your time mate, much appreciated.

Kind Rgds,
PA

[vinny]

Normally, you may apply for ILR up to 28 days prior to the 5th anniversary of your initial entry and before your leave expires.

However, if you initially entered within 3 months, then you may also apply for ILR up to 28 days prior to the 5th annniversary of the grant of your entry clearance and before your leave expires.

The latter is a concession granted for people who arrive within 3 months, but whose leave expires sooner than 28 days prior to the 5th anniversary of their initial entry. However, I suspect that people who initially entered within 28 days may also benefit from it.

[linkers]

I would completely agree with Vinny. He has explained it so well that you don’t need to look anywhere else.

[nvr]

Hello Vinny,

Could I please ask any official reference to your comments, is this something specifically stated anywhere on the UKBA site?

The reason am asking for reference is, I have called up UKBA home office thrice and on 2 occasions they have confirmed otherwise (I cannot apply 28 before my VISA expiry, but 28 days before the date of 5 yrs from the port of entry).

Since there is so much of confusion / ambiguity within home office, it would be good to read the exact rules myself to be convinced.

Thx for your time.


Kidn Rgds,
PA

[vinny]

My previous post contains links.

[khalidmirza]

Normally, you may apply for ILR up to 28 days prior to the 5th anniversary of your initial entry and before your before your leave expires.

However, if you initially entered within 3 months, then you may also apply for ILR up to 28 days prior to the 5th annniversary of the grant of your entry clearance and before your leave expires.

The latter is a concession granted for people who arrive within 3 months, but whose leave expires sooner than 28 days prior to the 5th anniversary of their initial entry. However, I suspect that people who initially entered within 28 days may also benefit from it.

Yes you are right Vinny. Let me emphasize
If entry is within 28 days of visa date then one should apply 28 days before your 5th anniversary of entry date because guide says MAY
APPLY AND before the expiry of your current leave to remain
In other case if entry is after 28 days and within 90 days you MAY ALSO APPLY within 28 days of your visa expiry date
So the mandatory condition is visa expiry date. Three months is a discretionary concession

[push]

The latter is a concession granted for people who arrive within 3 months, but whose leave expires sooner than 28 days prior to the 5th anniversary of their initial entry. However, I suspect that people who initially entered within 28 days may also benefit from it.

that's bit of a grey area and, if the position that you state is correct, seems to penalise those who entered UK within 28 days of the EC date. If there are two people with exactly the same entry clearance date but whereas "A" enters say in 7 days of the EC date and "B" does so in 3 months, if the above is correct then B can apply 7 days earlier than "A" despite having spent 83 days in UK than "A".

[push]

Having further read the modified guidance and the immigration rules, I am more convinced that a person can apply for settlement (in relation to the category being discussed here) should be able to apply no more than 28 days from the date of the expiry of their leave and NOT from the 5th anniversary of the first entry in UK as long as the applicant entered UK within 3 months of the date of EC.

The page on the UKBA website says:

Please do not send us your application more than 28 days before you become eligible to apply. If you do, we may refuse your application with no refund of the application fee (if a fee is charged for your application type). However, you must make your application before your current permission to stay in the UK expires.

now one becomes "eligible" to apply after spending the qualifying period in UK as per the immigration rules (5 years in this case). How should the caseworker calculate 5 year qualifying period is described in the modified guidance referred above.

The only uncertainty comes from the word "may" in the modified guidance that gives a discretion to the caseworker, but I would contend that that's no different from any other guidance really.

[nvr]

Sorry Push - but am not really convinced. The guidance reads "Do not apply more than 28 days before you become eligible, "however", you must make your application before your current permission to stay in the UK expires"

The key for me is the word "However". Allow me explain my thought here:

Scenario 1: (Assume qualify period is 5 yr from point of entry)

Consider my case - VISA DT - 03 MAY 2007; ENTRY DT - 19 MAY 2007, then the qualify period date would be 18 MAY 2012.

The earliest I could apply, then become 20th Apr 2012.

Now look at constraints:

Condition 1:

Do not apply more than 28 days before you become eligible - which means I can apply from 20 APR 2012 until 18 MAY 2012

Condition 2:

However, you must make your application before your current permission to stay in the UK expires i.e., 03 MAY 2012 - which means the farthest date I could apply is 03 MAY 2012

Combining condition 1 & condition 2 - the range of dates I can apply is 20 APR 2012 to 03 MAY 2012.

Scenario 2: (Assume qualify period is 5 yr from VISA issue date for people who entered UK in 28 days)

It's pretty st. forward, I would have a date range of 05 APR 2012 TO 03 MAY 2012.

If scenario 2 were TRUE, why / how does the sentence "However, you must make your application before your current permission to stay in the UK expires" relates to? Of course it is pretty obvious one has to apply before the current VISA expires, why does it needs to be stated explicitly in the guidance?

Push - the reason I keep debating is even the home office gave me mixed responses to this question.

Anyway, I appreciate your time & effort in regards to this query. Have a good weekend all.



PA

[ban.s]

as others pointed out, this is one of the grey areas in the policy - 'may' & 'discretion' wordings in the rule leave much to the discretion of the CW.

however, I do agree with Push - one doesn't qualify until s/he completes 5 years in the UK and that starts from the date of entry. now if the date of entry is > 28 days from the entry clearance, then clearly, this can't be achieved unless visa is extended. however, if the date of entry doesn't exceed entry clearance by 90 then, CW will apply discretion as per modernised guidance to calculate 5 years continuous residence. So scenario 1 is applicable here.

Nowhere the rule says that one qualifies for ILR on completion of 5 years beginning the entry clearance date.

[nvr]

Hello ban.s,

You say, you agree with Push - one doesn't qualify until s/he completes 5 years in the UK and that starts from the date of entry.

But Push says - it is from Date VISA issued (and not date of entry for ppl who entered in 28 days of EC).

Let me know if I've misunderstood your comments, I know we are getting mixed up here.

PA

[ban.s]

sorry - you are right - my interpretation is different

[push]

Hello ban.s,

You say, you agree with Push - one doesn't qualify until s/he completes 5 years in the UK and that starts from the date of entry.

But Push says - it is from Date VISA issued (and not date of entry for ppl who entered in 28 days of EC).

Let me know if I've misunderstood your comments, I know we are getting mixed up here.

PA

If one enters UK no more than 3 months after the date of the EC date, the 5 years period of his/her stay may be counted from the start of the EC date and not from the date of actual entry into UK as per the modified guidance. So, such people may become eligible to apply on the 5th anniversary of the grant of EC.

Being able to apply 28 days before one becomes eligible to apply for ILR is another flexibility afforded by UKBA guidance.

[push]

Sorry Push - but am not really convinced. The guidance reads "Do not apply more than 28 days before you become eligible, "however", you must make your application before your current permission to stay in the UK expires"

Well, you are entitled to your opinion, but what you are trying to do is to deduce from a simple statement.

why / how does the sentence "However, you must make your application before your current permission to stay in the UK expires" relates to? Of course it is pretty obvious one has to apply before the current VISA expires, why does it needs to be stated explicitly in the guidance?

No, one might become eligible after his current leave expired, i.e. people who enter UK 3 months after their EC award date (or those who entered 28 days after the award of the EC prior to when Modified Guidance was introduced). When you focus so much on the word "however" you ignore the next paragraph of the same UKBA Page

If you are already in the UK but you have not been here long enough to apply for settlement, you can apply to extend your temporary permission to stay.

[ban.s]

may be i am too cynical but considering UKBA's proven inconsistent approach with Case Worker's 'discretion', my concern is with the word "may".
why not a positive and affirmative statement? does that mean there could be situation when an applicant may not be eligible inspite of satisfying the condition?
I guess at the end the applicants need to decide when to apply - considering their individual circumstances. Alternately apply at safe PEOs e.g Solihull