DLR Granted on ILR application

[muhami01]

Hi

My friend applied ILR application on SET 0 (Workpermit+HSMP+Tier 1) along with family.
He has got reply today after 7 months and was granted discretionary leave to remain for 3 years instead of ILR. He is quite unsure about this. The solicitor has advised him he need to remain in UK for another 6 years to be eligible for ILR again ( His stay will be 10 years in UK next year).
The only problem in his application was 3 points on license by court and once previously had invalid application on his extension of HSMP visa( he applied before his leave was due to expire and when leave expired he got his documents due to invalid photo and was asked to re apply after leave expired .

Could anyone with similar problem share his experience or any other suggestion what else can be done. He still had his tier 1 until next year

[Lucapooka]

The solicitor has advised him he need to remain in UK for another 6 years to be eligible for ILR again ( His stay will be 10 years in UK next year)

I don't think that is correct. Residence has to lawful and continuous but it does not have to be entirely made up of leave that was granted within the immigration rules.

[muhami01]

thanks for reply.
let me clarify this again.

Probably he advised on the basis of previously invalid application on his extension of HSMP visa ( he applied before his leave was due to expire however when leave expired he got his documents back due to invalid application (problem with photos) and was asked to re apply, though hiswas already expired and he was in this country without visa for 15 days.

[Lucapooka]

Well, it's true that a break of more than 10 days is outside the scope of the 10 year long residence category but it's not clear if this is a break.

[geriatrix]

Did he pay the fees again when he re-applied for HSMP extension?
How dou you know it was 15 days? Was he issued new leave within 15 days? Or did he re-apply within 15 days?

[muhami01]

No they refunded the fees and asked to re apply with new photographs.

Its just idea that he reapplied by post with in 10-15 days. I can confirm dates again with him in short while. After re submission he got back with extension after 5/6 weeks.

[Lucapooka]

I think the issue here is the unspent conviction and he will have to wait for that to be removed before he can apply for ILR under long residence.

[geriatrix]

No they refunded the fees and asked to re apply with new photographs.

So, he did pay the fees when he applied again (out of time).

Which means that he was in the UK without valid leave, hence with no right to remain, from the day his visa expired until the day he was issued HSMP extension. That an out-of-time application was approved doesn't make illegal stay legal.

Therefore his settlement application may have been refused because of this as a reason (5 years lawful stay required, not fulfilled).
And if he submitted the out-of-time application more than 10 calender days after his leave had expired, then the discretion (Single gap in lawful residence) under long residence may not apply.

[Lucapooka]

Not wishing to contradict that (because it's true within the rules) there have been plenty cases where applications were returned because of some minor technicality (photo, out of date form, etc) that have been subsequently awarded (with a similar break) and then have gone on to be issued ILR.

[muhami01]

Thanks Lucapooka and sushdmehta

I looked through guidance sent by sushdmehta it has example where one person had 24 days late application (without visa during that period) he provided reason being hospitalised and his application being acceptable.

So what do you guys next course of action because further leave has been granted as discretionary leave. What course of action you guys suggest.
To appeal in high court against current decision. (Options either to be granted ILR or at least keep in same tier1 category where will be automatically again eligible for ILR after 2 years. Last extension was for 3 years)
Shall wait to apply long residence 10 yrs or 14 yrs.

[muhami01]

Lucapooka
What do mean by unspent conviction already had 3 points

[geriatrix]

3 points on license by court doesn't necessarily mean an unspent conviction. Was a CRB check undertaken before applying for settlement?

Appealing an unlawful decision may bear fruit. Appealing just because you do not agree with the decision is pointless. From what has been posted, it appears to me that the decision to refuse settlement may not have been unlawful.

What I am surprised about is that DLR was issued and the (settlement) application wasn't simply refused - the applicants had valid PBS leave until 2013, as you say.

[Lucapooka]

What I am surprised about is that DLR was issued and the (settlement) application wasn't simply refused .

I completely agree. But that is often the problem with hearsay issues posted by well-intentioned friends. You don't get to know the full story.

[vinny]

It does seem unfair for an application to be declared as invalid due to photographs, when the caseworker guidance allows discretion to treat a variation as valid (page 47).