Would 28 day rule discretion be applied in my case

[lizrich002]

Good evening everyone,

I am hoping someone can help with this query either from experience or knowledge.

My HSMP visa was granted on the 21st of Nov 2007, entered on the 19th of December 2007. I am currently on tier 1 that expires on the 21st of November 2012.

I am preparing for my ILR with a dependant and exploring the various options available. We have decided on PEO for peace of mind.

The gap between my visa expiry and entry is exactly 28 days from the date calculator.

My question is this:
Would the 90 day discretion apply to us? My concern is since we would still have valid leave (albeit 1 day) by the 28th day before our 5th year anniversary (which is the day our visa expires), would this apply to us, in which case we might be able to apply 28 days before entry rather than visa expiry.

I have also read on this forum where people have been turned back because they would still have valid leave by the 28th day before their 5th anniversary. Though I have not really come across anyone with just 1 day leave.

My instinct is to book an appointment for the 21st of November which is 28 days before our 5th anniversary and also the day our visa expires. This appears to me to be a risky option as there is no guarantee of getting an appointment that day and also considering the technical issues at the PEOs these days, we don't want to be considered overstayers.

Common sense is saying that caseworkers should be able to make an exception if we apply earlier but can that be guaranteed as my understanding is that discretion is only applied if one falls short. In our case we do not.

Postal is not an option we want to consider as we want to get this done as quickly as possible not waiting 6 months.

I also know writing to UKBA would only get me a standard response which would not help, so my best bet is you wonderful people.

Thanks for your help

[push]

I have also read on this forum where people have been turned back because they would still have valid leave by the 28th day before their 5th anniversary. Though I have not really come across anyone with just 1 day leave.

where have you read that?

[lizrich002]

I may be wrong then, please forgive my error if it's never happened but you still haven't answered my question.

Thanks

[push]

I may be wrong then, please forgive my error if it's never happened but you still haven't answered my question.

Thanks

I did not respond because I wanted to look at the posts of people you said were apparently sent back from PEOs.

The case worker guidance on when one can apply says:

Applicants who need to meet a qualifying period for indefinite leave should not apply for further leave until they are within 28 days of completing the relevant qualifying period. This allows them to meet any required qualification periods for the continuous leave requirement. This is not a mandatory requirement of paragraph 34 of the Immigration Rules and you must not reject an application as invalid if the applicant submits it more than 28 days before they have completed the relevant qualifying period.

So, you would note that you can apply within 28 days of completing the Qualifying Period.

When one completes the Qualifying Period is determined in accordance with the modernised guidance that you have quoted above.

I hope that answers your query.

[lizrich002]

Thanks Push,

Yes, that answers my question.

For clarity (sorry if I'm being thick here, just want to get it right) as our visa expires on the 21st of November which is exactly 28 days before our qualifying period does that mean that the caseworker cannot reject our application if we apply on the 15th of November for instance.

As stated in my original post, I don't want to leave it till the last day and I guess the caseworker should understand this.

Thanks so much.

[Smam]

Hi lizrich002

You should be fine if you apply on the 15th Nov 2012 just keep this thing in mind that you need to book the appointment 42 days before 15 Nov 2012 to get the appointment for that date which means that you have to book the appointment some where arround 7th of October 2012.

Please do kindly share your PEO exprerience with us on the forum.

Good luck for your ILR.

[lizrich002]

Thanks Smam,

I will surely post my experience on the forum.

Thanks for your help.