Am I eligible to apply for ILR (10 years) visa ?

[siddharthg1686]

Hi,

Thank you in advance for your time.

I am planning to apply for ILR (10 years) visa in January 2020. Currently, I am on Tier 2 General, which is valid until, April 2020. I am with this employer since 2014 and during this period employer provided sponsorship to me. My current salary isn't enough (33k) to apply for ILR 5 years.

Over stayed Information:

Tier 2 General visa expired on : 3rd April 2017
Tier 2 General visa Leave to Remain applied on : 10th April 2017
Tier 2 General visa Leave to Remain granted on : 25th April 2017

Reason:
Employer had withdrawn my COS instead of other COS. After which, employer
immediately contacted Home Office to issue a new COS. But, Home Office
advised employer to wait for yearly allocations (Home Office busy to getting
ready for 6th April).

Case worker considered my reason was genuine and granted visa. I thought that
my overstay disregarded based on 39E and getting ready to apply for ILR.
But,I am confused after reading few articles on online. So, I wish to ask your
opinion on whether I am eligible for ILR 10 years visa or not ?

Once again thanks in advance.

[emma11]

You haven't supplied full details.
When did u cm into d country?

[siddharthg1686]

You haven't supplied full details.
When did u cm into d country?

Hi,

I came to UK on 4th January 2010.

1. T4 GENERAL STUDENT valid until 30/04/2011 (Entered UK on 04/01/2010)
2. Applied for T4 GENERAL STUDENT-LTR on 22/04/2011 and granted on 4/06/2011, valid until 27/01/2012
3. Applied for T1 HS-Post Study-LTR on 27/01/2012 and granted on 01/05/2012, valid until 14/05/2014
4. Applied for T2 SW-General Migrant-LTR on 02/04/2014 and granted on 30/04/2014 valid until 03/04/2017

thank you for your time.

[emma11]

Looks like u have been in the uk legally so can't c any reason u can't apply for the 10yr ilr in January or December (using the 28days before option)

But I'll let the seniors give their thoughts too

[siddharthg1686]

Looks like u have been in the uk legally so can't c any reason u can't apply for the 10yr ilr in January or December (using the 28days before option)

But I'll let the seniors give their thoughts too

Hi,

I did overstayed few days and after that Home Office granted me T2 LTR visa for 3 years. So, I thought that there won't be any problem to apply for ILR long residence. Recently, I heard from a friend that this overstay can only disregard for ILR (T2 5 years Route). Then, I was confused and started to read articles online and ended up with more confusion.

[hina_pirzada]

The best way is you can apply for SAR. It will take 40.days and you will be cleared urself.

[seagul]

Case worker considered my reason was genuine and granted visa.

Had you received any correspondence confirming that or your decision letter confirmed that.

[siddharthg1686]

The best way is you can apply for SAR. It will take 40.days and you will be cleared urself.

Thanks for your suggestion.

[siddharthg1686]

Case worker considered my reason was genuine and granted visa.

Had you received any correspondence confirming that or your decision letter confirmed that.

Hi,
Thanks for your reply.

Home Office didn't say about the genuine reason in my decision letter. I assumed it that case worker considered my reason was genuine and granted T2 LTR (39E, I applied within 14 days of my visa expired). My employer had written a letter to case worker and explained the reason for failed to apply before my leave expire. I believe this letter helped to grant visa.

[seagul]

Case worker considered my reason was genuine and granted visa.

Had you received any correspondence confirming that or your decision letter confirmed that.

Hi,
Thanks for your reply.

Home Office didn't say about the genuine reason in my decision letter. I assumed it that case worker considered my reason was genuine and granted T2 LTR (39E, I applied within 14 days of my visa expired). My employer had written a letter to case worker and explained the reason for failed to apply before my leave expire. I believe this letter helped to grant visa.

Better to get your SAR file before proceeding to that costly application

[zimba]

Up to 28 days of overstaying is disregarded. You should be fine
EDIT: I see you applied after the rules changes in Nov 2016, so I believe 39E applies in your case instead (see below)

[siddharthg1686]

Case worker considered my reason was genuine and granted visa.

Had you received any correspondence confirming that or your decision letter confirmed that.

Hi,
Thanks for your reply.

Home Office didn't say about the genuine reason in my decision letter. I assumed it that case worker considered my reason was genuine and granted T2 LTR (39E, I applied within 14 days of my visa expired). My employer had written a letter to case worker and explained the reason for failed to apply before my leave expire. I believe this letter helped to grant visa.

Better to get your SAR file before proceeding to that costly application

Thanks for your reply.

[siddharthg1686]

Up to 28 days of overstaying is disregarded. You should be fine

Hi Zimba,

Thank you very much for your help. Your reply is the best thing I heard recently. Do you suggest me to apply through solicitor or not ?

[vinny]

Unfortunately, recent judgments are not favorable.

[siddharthg1686]

Unfortunately, recent judgments are not favorable.

Hi Vinny,

Thanks for your reply. I read this article, which you shared with me and I am really worried about ILR visa. I think, it is better for me to contact a solicitor and discuss about my situation.

Is there any chance, if I meet salary requirement and apply for ILR (Tier2 5 years) ?

[vinny]

Yes. Given these controversial decisions, if you meet the requirements for ILR under Tier 2, then it may be simpler.

[zimba]

Unfortunately, recent judgments are not favorable.

I do not think those judgments are relevant. In those cases, the applicants applied as overstayers, never had 10 years of lawful residence and tried to argue that time spent waiting for an application as an overstayer should be counted BUT they never reguralsied their leave.
In case of overstaying between the leave periods, the guide is clear that discretion should be applied. The OP here regularised his/her leave as his Tier 2 was nevertheless granted as per 39E.

The long residence guide says discretion is applied when:

• the applicant must not be in breach of immigration laws, except
o for any period of overstaying for 28 days or less which will be disregarded where the period of overstaying ended before 24 November 2016
o where overstaying on or after 24 November 2016, leave was never the less granted in accordance with paragraph 39E of the immigration rules

[siddharthg1686]

Thanks Vinny and Zimba for sharing your thoughts.

I had requested SAR file in 2017, which I thought I lost it (I couldn't mention earlier). But, I found it today after thorough search.

The document states as follows :

Decision Out come of T2 LTR application in 2017 :
1. Grant LTR under para 245HD code 4
2. 5 years from start date of employment would be: 9/4/2022
3. The applicant is subject to the 6 years limit and will have completed 6 years on 30/4/2020

Once again thank you very much for your help.

[siddharthg1686]

Thank you very much Zimba for your reasoning on my situation and it is a ray of hope for me. I decided to apply through solicitor. I am also applying for a latest SAR report today.

Thanks to Vinny, seagul, hina_pirzada, & emma11 for your valuable suggestions.