Indefinite leave to remain falling short by 4 days

1207kiran · Post by **1207kiran** » Thu Aug 02, 2012 10:33 pm

HI, Can you please let me if statement for " Caseworkers may count the period". I am falling short for ILR by 4 days...My work permit was activated on 16 Oct 2007 and its getting expired on 12 Oct 2012. Do i need to go for extension and apply for visa or can I apply for ILR directly?
thanks. Please advise...look forward for your response....

Post by **vinny** » Fri Aug 03, 2012 9:01 am

Settlement wrote: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.

That is, you may apply for ILR between 18 Sept 2012 and 11 Oct 2012.

cs95tdg · Post by **cs95tdg** » Fri Aug 03, 2012 12:40 pm

My understanding of reading the guidance has been that even though the applicant can apply upto 28 days before the qualifying period, they still need to satisfy the 5 year residency period (as I take it you are applying as an economic migrant). The 5th anniversary for the OP appears to be 16 Oct 2012, so unless he/she applied by post, as indicated would fail the residency requirement.

BTW, it is strange that the WP was not issued to cover 5 years, though I suppose this could happen if the 5 year period covered multiple WP's.

wpilr_nov12 · Post by **wpilr_nov12** » Fri Aug 03, 2012 12:57 pm

1. What is the entry date if overseas issued EC?

2. Based on info given so far, current leave expires 12 Oct (FRIDAY). Assuming you are eligible for 3 month delayed entry concession (and this has a different set of qualifying criteria), your 5 year anniversary is 15 Oct (I could use some guidance on this myself, separately), and that is MONDAY.

So if you postmark your postal application on 12 Oct, UKBA would open it on or after Monday the 15th.

Might be worth trying some PEO (that accept payment after approval/review) and negotiate those missing days, explaining the 'weekend dilemma'.

wenner · Post by **wenner** » Fri Aug 03, 2012 2:06 pm

My worpermit was issued on 31st Oct 2007.It expires on the 13 th of Oct 2012.SO I fall 18 days short.I am planning on applying on 3rd oct 2012, as I would have been here 4 year, 11 months and 2 days.I also wrote to the UKBA settlement policy, and this is her response:

If you decide to submit your ILR application via a PEO, they will not accept an application any earlier than 28 days before the expiry of leave, but will accept an application made any time during the 28 days preceding the final date of the leave.

The deciding officer will disregard any shortfall in leave resulting from a submission made during this 28 day period.

I hope this clarifies the situation for you.

Ann

UK Border Agency – Settlement Ops Policy team

cs95tdg · Post by **cs95tdg** » Fri Aug 03, 2012 2:58 pm

wenner wrote:My worpermit was issued on 31st Oct 2007.It expires on the 13 th of Oct 2012.SO I fall 18 days short.I am planning on applying on 3rd oct 2012, as I would have been here 4 year, 11 months and 2 days.I also wrote to the UKBA settlement policy, and this is her response:

If you decide to submit your ILR application via a PEO, they will not accept an application any earlier than 28 days before the expiry of leave, but will accept an application made any time during the 28 days preceding the final date of the leave.

The deciding officer will disregard any shortfall in leave resulting from a submission made during this 28 day period.

I hope this clarifies the situation for you.

Ann

UK Border Agency – Settlement Ops Policy team

The way I interpret the 28 days rule below which is also stated on the website, is that the UKBA allow applicants to apply for settlement upto 28 days before their current leave to remain expires. This makes sense if an applicant has exactly 5 years of leave to remain and wants to apply before that leave expires (to avoid becoming an overstayer).

But the residency requirement (i.e. 2, 5 or 10 year period which varies depending on the category you are applying for settlement under) will still remain effective & is seperate. I.e. while the applicant can submit the application 28 days before the 5 year period (taking your case as an example) it DOES NOT mean that your current "leave to remain" doesn't need cover the 5 years.

The case worker will look at your date of entry or EC date (depending on whether you applied for EC or switched immigration categories in-country) and then look at your current leave to remain expiry date to determine whether you meet the residency requirement (Note that there is also a 3 month concession for those who applied for EC and entered within 3 months of the EC date). What they will disregard is, the period of time between the date they consider your application and the date your current leave to remain expires.

In your example the period they disregard would be 3rd oct 2012 to 13 th of Oct 2012. IMHO you would fail the residency requirement if you apply on 3rd Oct 2012 in-person at a PEO & therefore would have a better chance of succeeding if you applied by post closer to your current leave to remain expiry date. The reason being there is a time delay between when your application reaches the UKBA and when a case worker actually considers it, if you apply by post. And you will most probably satisfy the 5 year residency requirement by the time the case worker considers your application.

wenner · Post by **wenner** » Fri Aug 03, 2012 3:24 pm

Thanks for the reply.What your are saying makes sense.I am just wondering why the UKBA made me think it is ok to apply?I clearly explained my situation!Why couldnt they just say no, you need to extend your leave to remain or make a postal application?Strange...
I will extend my tier 2 visa then.Now I need to look at Tier 2 requirements.this is absolute hell.so tired...I have already booked my Life in the UK test.Oh well,soldier on...

1207kiran · Post by **1207kiran** » Fri Aug 03, 2012 3:45 pm

Thank you for all your replies. I really appreciate your comments.

I am on Tier 2 ICT.

Entry clearance was made on 28 Sep 2007 for 2 years
WP was activated on 16 Oct 2007 (Time started for ILR)
Extended my WP in 28 Sep 2009. Due to some COS date they issued my WP until 12 Oct 2012.
So, current WP is getting expired by 12 Oct 2012 with this I am falling short by 4 days for continuous stay in UK.

Based on this please advise if I can apply for ILR.

Thanks in advance.

wpilr_nov12 · Post by **wpilr_nov12** » Fri Aug 03, 2012 3:59 pm

SET(O) GUIDANCE NOTES Version 07/2012

http://www.ukba.homeoffice.gov.uk/sitec ... o04091.pdf

Page 3, top

5 WHEN TO APPLYYou and any dependants applying with you should
apply before the end of your/their permitted stay in the
UK.

For clarification, this implies you should have a valid leave at time of application.

cs95tdg · Post by **cs95tdg** » Fri Aug 03, 2012 4:20 pm

1207kiran wrote:Entry clearance was made on 28 Sep 2007 for 2 years
WP was activated on 16 Oct 2007 (Time started for ILR)
Extended my WP in 28 Sep 2009. Due to some COS date they issued my WP until 12 Oct 2012.
So, current WP is getting expired by 12 Oct 2012

If I've understood you correctly, you were granted EC on 28 Sep 2007. Is this correct? If so was this EC for your Work Permit?

Note, to avoid confusion, EC can only be issued outside of the UK. So my question to you is, was the EC you mention above granted for your WP & issued in your home country? If not what was it for?

I'm trying to determine whether the period between 28 Sep 2007 & 16 Oct 2007 can be considered towards your 5 year residency in which case you will not have a shortfall. But I need answers to the questions above before a conclusion can be reached.

1207kiran · Post by **1207kiran** » Fri Aug 03, 2012 4:33 pm

Yes you are correct. My EC was granted on 28 Sep 2007. Yes EC was issued in India. Please advise

1207kiran · Post by **1207kiran** » Fri Aug 03, 2012 4:34 pm

cs95tdg wrote:
1207kiran wrote:Entry clearance was made on 28 Sep 2007 for 2 years
WP was activated on 16 Oct 2007 (Time started for ILR)
Extended my WP in 28 Sep 2009. Due to some COS date they issued my WP until 12 Oct 2012.
So, current WP is getting expired by 12 Oct 2012
If I've understood you correctly, you were granted EC on 28 Sep 2007. Is this correct? If so was this EC for your Work Permit?

Note, to avoid confusion, EC can only be issued outside of the UK. So my question to you is, was the EC you mention above granted for your WP & issued in your home country? If not what was it for?

I'm trying to determine whether the period between 28 Sep 2007 & 16 Oct 2007 can be considered towards your 5 year residency in which case you will not have a shortfall. But I need answers to the questions above before a conclusion can be reached.

Yes you are correct. My EC was granted on 28 Sep 2007. Yes EC was issued in India. Please advise

wpilr_nov12 · Post by **wpilr_nov12** » Fri Aug 03, 2012 4:35 pm

1207kiran wrote:
cs95tdg wrote:
1207kiran wrote:Entry clearance was made on 28 Sep 2007 for 2 years
WP was activated on 16 Oct 2007 (Time started for ILR)
Extended my WP in 28 Sep 2009. Due to some COS date they issued my WP until 12 Oct 2012.
So, current WP is getting expired by 12 Oct 2012
If I've understood you correctly, you were granted EC on 28 Sep 2007. Is this correct? If so was this EC for your Work Permit?...quote]

Yes you are correct. My EC was granted on 28 Sep 2007. Yes EC was issued in India. Please advise

You haven't answered the most important (and probably promising) question....

1207kiran · Post by **1207kiran** » Fri Aug 03, 2012 4:38 pm

wpilr_nov12 wrote:
1207kiran wrote:
cs95tdg wrote:
1207kiran wrote:Entry clearance was made on 28 Sep 2007 for 2 years
WP was activated on 16 Oct 2007 (Time started for ILR)
Extended my WP in 28 Sep 2009. Due to some COS date they issued my WP until 12 Oct 2012.
So, current WP is getting expired by 12 Oct 2012
If I've understood you correctly, you were granted EC on 28 Sep 2007. Is this correct? If so was this EC for your Work Permit?...quote]

Yes you are correct. My EC was granted on 28 Sep 2007. Yes EC was issued in India. Please advise
You haven't answered the most important (and probably promising) question....

Yes, EC was for the Work Permit

wpilr_nov12 · Post by **wpilr_nov12** » Fri Aug 03, 2012 4:42 pm

When you say "WP was activated .... ", what is that?

Also, when did you enter UK on that EC of Sep'07?

cs95tdg · Post by **cs95tdg** » Fri Aug 03, 2012 5:09 pm

If the OP's Work Permit EC was issued on 28 Sep 2007. And the OP's date of entry into the UK using that visa was on 16 Oct 2007 (NOTE: I'm guessing here that this is what the OP means by saying WP activated - This is however a strange way to say "date of entry" though!).

If this understanding is correct, then read Q5 under the following sticky to understand why the period between EC (28 Sep 2007) and date of entry (16 Oct 2007) will be considered towards you 5 year residency.

http://www.immigrationboards.com/viewtopic.php?t=79378

1207kiran · Post by **1207kiran** » Fri Aug 03, 2012 5:14 pm

wpilr_nov12 wrote:When you say "WP was activated .... ", what is that?

Also, when did you enter UK on that EC of Sep'07?

I entered UK on 16 Oct 2007. Got my EC stamp on 28 Sep 2007.

1207kiran · Post by **1207kiran** » Fri Aug 03, 2012 5:16 pm

cs95tdg wrote:If the OP's Work Permit EC was issued on 28 Sep 2007. And the OP's date of entry into the UK using that visa was on 16 Oct 2007 (NOTE: I'm guessing here that this is what the OP means by saying WP activated - This is however a strange way to say "date of entry" though!).

If this understanding is correct, then read Q5 under the following sticky to understand why the period between EC (28 Sep 2007) and date of entry (16 Oct 2007) will be considered towards you 5 year residency.

http://www.immigrationboards.com/viewtopic.php?t=79378

You are correct. EC was issued on 28 Sep 2007 and date of entry was 16 Oct 2007. Please advise if I can apply for ILR?

1207kiran · Post by **1207kiran** » Fri Aug 03, 2012 5:17 pm

1207kiran wrote:
wpilr_nov12 wrote:When you say "WP was activated .... ", what is that?

Also, when did you enter UK on that EC of Sep'07?
I entered UK on 16 Oct 2007. Got my EC stamp on 28 Sep 2007.

EC was issued on 28 Sep 2007 and date of entry was 16 Oct 2007. Please advise if I can apply for ILR?

cs95tdg · Post by **cs95tdg** » Fri Aug 03, 2012 9:45 pm

1207kiran wrote:
cs95tdg wrote:If the OP's Work Permit EC was issued on 28 Sep 2007. And the OP's date of entry into the UK using that visa was on 16 Oct 2007 (NOTE: I'm guessing here that this is what the OP means by saying WP activated - This is however a strange way to say "date of entry" though!).

If this understanding is correct, then read Q5 under the following sticky to understand why the period between EC (28 Sep 2007) and date of entry (16 Oct 2007) will be considered towards you 5 year residency.

http://www.immigrationboards.com/viewtopic.php?t=79378
You are correct. EC was issued on 28 Sep 2007 and date of entry was 16 Oct 2007. Please advise if I can apply for ILR?

Yes. You can apply 28 days before the 5th anniversary from your EC date. I.e. 28 days before 28 Sep 2012. This is because of the concession given below:

Applications that fall short of the five year continuous period

In some cases, applicants may have been granted five years continuous leave, but due to delayed travel will not have spent five years continuously in the UK before their current leave expires. Caseworkers may count the period between entry clearance being granted and the date the applicant entered the UK towards the five years, provided this period was not longer than three months.

Immigrationboards.com: Immigration, work visa and work permit discussion board

Indefinite leave to remain falling short by 4 days

Indefinite leave to remain falling short by 4 days