SET(M) - legal ground for 28 days before completing 60 months?

[mccheb]

Hi all

I am asking for a friend of mine, who is the spouse of a British citizen currently on FLR(M).

I am well aware that for someone on the 5-year family settlement route for partners (Appendix FM), they can apply for ILR 28 days before completing 60 months in the UK using the SET(M) form (in this case, the period starts from the actual date of entry into the UK). So if they entered the UK on 15/06/2019, they can submit SET(M) on roughly 18/05/2024. This is stated on the webpage below, and has been witnessed by countless members of the forum:

https://www.gov.uk/indefinite-leave-to- ... amily-visa

I am however wondering if there's a clear statement about the "28 days" concession, somewhere in the guidance? (For example, I know for SET(O) there are clear provisions in the PDF guidance, e.g., the caseworker should consider the application date, decision date, etc... whichever is the latest and most beneficial for applicant)?

In the guidance below:
https://assets.publishing.service.gov.u ... page=10.20

I can find the following:

Completing a continuous period of 60 months in the UK as a partner

The rules concerning calculating the qualifying period of continuous residence for a
period of 60 months in the UK are set out in paragraphs E-LTRP.1.3. to 1.5A: [...]

But obviously this is a typo, and it should be E-ILRP.1.3 to 1.5A instead.
Looking at E-ILRP, it only mentions 28 days as below:

E-ILRP.1.5A. In calculating the periods under paragraph E-ILRP.1.3., any current period of overstaying will be disregarded where paragraph 39E of these Rules applies. Any previous period of overstaying between periods of leave will also be disregarded where: the further application was made before 24 November 2016 and within 28 days of the expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

But I don't think this has anything to do with the 28 days concession?
Many thanks in advance for your help!

[zimba]

There is no law or 28-day rule, this is simply a concession by the home office that allows immigrants to make a further application for leave a bit earlier than required. Some might face difficulty extending their leave or settling without this concession.
For example, the rules require you to complete 30 months under the family route before being granted an extension. Hence, the concession helps the applicants to apply a bit early without this strict requirement:

Where a person submits an Appendix FM partner application up to 28 days before
they have completed 30 months in the UK with leave to enter or remain as a partner
under Appendix FM, that person will be considered to have met the required
continuous residence period of 30 months as a partner.

Where an applicant currently has extant leave to enter or remain as a partner under
Appendix FM at the date of application (excluding a grant of limited leave to remain
as a fiancé, fiancée or proposed civil partner), that period of extant leave, up to a
maximum of 28 days, will be added to the period of leave to remain that they are
being granted as a partner. An applicant with extant leave in this scenario will
therefore be granted a period of leave to remain as a partner slightly in excess of 30
months. A person who applies more than 28 days before their leave is due to expire
or they have completed the relevant qualifying period may not meet the requirement
to have completed at least 60 or 120 months in the UK with relevant leave to remain
in order to apply to settle and may instead need to apply for a further period of
limited leave.

https://assets.publishing.service.gov.u ... tances.pdf

Note that the 28-day grace period for overstaying which was in place until November 2016 (mentioned under paragraph 39E) and you quoted above, is a about a different concession under the rules.

[MrGamgee]

There is no law or 28-day rule, this is simply a concession by the home office that allows immigrants to make a further application for leave a bit earlier than required. Some might face difficulty extending their leave or settling without this concession.
For example, the rules require you to complete 30 months under the family route before being granted an extension. Hence, the concession helps the applicants to apply a bit early without this strict requirement:

Where a person submits an Appendix FM partner application up to 28 days before
they have completed 30 months in the UK with leave to enter or remain as a partner
under Appendix FM, that person will be considered to have met the required
continuous residence period of 30 months as a partner.

Where an applicant currently has extant leave to enter or remain as a partner under
Appendix FM at the date of application (excluding a grant of limited leave to remain
as a fiancé, fiancée or proposed civil partner), that period of extant leave, up to a
maximum of 28 days, will be added to the period of leave to remain that they are
being granted as a partner. An applicant with extant leave in this scenario will
therefore be granted a period of leave to remain as a partner slightly in excess of 30
months. A person who applies more than 28 days before their leave is due to expire
or they have completed the relevant qualifying period may not meet the requirement
to have completed at least 60 or 120 months in the UK with relevant leave to remain
in order to apply to settle and may instead need to apply for a further period of
limited leave.

https://assets.publishing.service.gov.u ... tances.pdf

Note that the 28-day grace period for overstaying which was in place until November 2016 (mentioned under paragraph 39E) and you quoted above, is a about a different concession under the rules.

I am not entirely sure whether you're correct. There is a rule for the 28 days but it would appear not for Appendix FM.

Appendix Continuous Residence (which does NOT include Appendix FM) has a section for calculating the relevant period and explicitly mentions 28 days within the rules:
https://www.gov.uk/guidance/immigration ... -residence

Also if you look at the SET(O) form, it does mention the 28 days rule, but how come it doesn't mention this for SET(M)?

SET(O) -
https://visas-immigration.service.gov.uk/product/set-o

SET(M) -
https://visas-immigration.service.gov.uk/product/set-m

Furthermore, Appendix FM states the following:

E-ILRP.1.3. (1) Subject to subparagraph (2), the applicant must, at the date of application, have completed a period of continuous residence in the UK of at least 5 years (60 months) with the following:

(a) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1; or
(b) limited leave to remain as a partner granted under paragraph D-LTRP.1.1; or
(c) a combination of leave under (a) and (b).

If the immigration rules specify that at the date of application a period of 5 years must have been completed, and no other section mentions this, and the form does not mention this, and the ONLY thing that mentions this is the Gov UK website, is it then fair to assume that it is possible that an application can be refused?

It would seem that other routes have this concession in rule, whilst Appendix FM states the opposite?

[zimba]

This has been repeated hundreds of times over the years that the 28-day concession is just a concession. It is NOT part of the immigration rules and does NOT show up in the immigration rules but you still come here and talk about this magical rule. However, there is no such rule I am afraid. So do not go and look it up under the immigration rules (e.g. Appendix FM). Also SET(O), SET(M) are simply application forms and they are not the place to look for clarifications on anything immigration related, unlike the immigration rules and official guide.

The guides cover the rules, their interpretations and any other concessions related to the immigration procedures. The secretary of state has the legal liberty to set up all the rules and procedures as they see fit.

The 28-day concession applies to ALL routes and has been in place for as long as I remember but the guide refers to it either directly or indirectly, as I highlighted above. I also explained why such a concession is in place. This means the UKVI may grant ILR even if an immigrant did not fulfil the full qualifying period.

[MrGamgee]

This has been repeated hundreds of times over the years that the 28-day concession is just a concession. It is NOT part of the immigration rules and does NOT show up in the immigration rules but you still come here and talk about this magical rule. However, there is no such rule I am afraid. So do not go and look it up under the immigration rules (e.g. Appendix FM). Also SET(O), SET(M) are simply application forms and they are not the place to look for clarifications on anything immigration related, unlike the immigration rules and official guide.

The 28-day concession applies to ALL routes and has been in place for as long as I remember but the guide refers to it either directly or indirectly, as I highlighted above. I also explained why such concession is in place

It's not a 'magical' rule, it would appear it is in the guidance and immigration rules for some routes. You have ignored the links I have supplied and the fact it is mentioned in Appendix Continuous Residence. You also ignored what it says in Appendix FM about the date of application being relevant.

[zimba]

This has been repeated hundreds of times over the years that the 28-day concession is just a concession. It is NOT part of the immigration rules and does NOT show up in the immigration rules but you still come here and talk about this magical rule. However, there is no such rule I am afraid. So do not go and look it up under the immigration rules (e.g. Appendix FM). Also SET(O), SET(M) are simply application forms and they are not the place to look for clarifications on anything immigration related, unlike the immigration rules and official guide.

The 28-day concession applies to ALL routes and has been in place for as long as I remember but the guide refers to it either directly or indirectly, as I highlighted above. I also explained why such concession is in place

It's not a 'magical' rule, it would appear it is in the guidance and immigration rules for some routes. You have ignored the links I have supplied and the fact it is mentioned in Appendix Continuous Residence. You also ignored what it says in Appendix FM about the date of application being relevant.

I have not ignored anything. You refuse to accept that such a rule does not exist. You do not understand how the rules are implemented and enforced. You claim such a rules exist (it does not) and such a concession does not apply (it does apply and has applied for a long time)

[MrGamgee]

This has been repeated hundreds of times over the years that the 28-day concession is just a concession. It is NOT part of the immigration rules and does NOT show up in the immigration rules but you still come here and talk about this magical rule. However, there is no such rule I am afraid. So do not go and look it up under the immigration rules (e.g. Appendix FM). Also SET(O), SET(M) are simply application forms and they are not the place to look for clarifications on anything immigration related, unlike the immigration rules and official guide.

The 28-day concession applies to ALL routes and has been in place for as long as I remember but the guide refers to it either directly or indirectly, as I highlighted above. I also explained why such concession is in place

It's not a 'magical' rule, it would appear it is in the guidance and immigration rules for some routes. You have ignored the links I have supplied and the fact it is mentioned in Appendix Continuous Residence. You also ignored what it says in Appendix FM about the date of application being relevant.

I have not ignored anything. You refuse to accept that such a rule does not exist. You do not understand how the rules are implemented and enforced. You claim such a rules exist (it does not) and such a concession does not apply (it does apply and has applied for a long time)

I am not claiming that such a concession does not apply by any means. I am simply claiming that it is not in the immigration rules OR guidance for Appendix FM, whereas for other routes it actually can be found in the rules and guidance. Also Appendix FM explicitly states that at the date of application you must have completed at least 5 years.

You claim such a concession exists for appendix FM, the burden of proof is on you to evidence how a person applying for SET(M) under the 5 year route is protected under the law by applying within 28 days of meeting the 5 year rule. You can do that for SET(O), but you can't provide any guidance or evidence for SET(M).

[zimba]

I already covered this above and even showed how the guide refers to this indirectly. You are free to adopt any interpretation you like.
You seem to like being a contrarian and arguing, even when you are not correct.
I had to correct you before: viewtopic.php?t=346078#p2146918

[MrGamgee]

I already covered this above and even showed how the guide refers to this indirectly. You are free to adopt any interpretation you like.
You seem to like being a contrarian and arguing, even when you are not correct.
I had to correct you before: viewtopic.php?t=346078#p2146918

I think you misunderstand. Someone disagreeing with you on an ambiguous topic does not mean the person is a contrarian and is arguing. That seems to be an ad hominem response rather than any helpful comments addressing each point I have made.