ILR false start

[yallow]

Hello,

I have a small chance that I can apply for ILR a little bit earlier by using the new 3 months rule (using the EC date rather than first entry).

However as this depends on the case worker I am afraid my application could be refused. What would be the downsides of this potential refusal? Should I even bother or should I just wait 2-3 more months? Can you apply a second time for an ILR after refusal or you have to go through other routes?

Thanks!

[cs95tdg]

You have not mentioned the dates related to your case to make any specific comments. But when you ask whether you should wait 2-3 more months, do you mean your current leave to remain allows you to do so, without an extension?

I'm not sure what you mean by "go through other routes" in your second question. There is nothing to stop you from applying for ILR a second time after a rejection. What you would want to do however, is ensure that the reason for the initial rejection no longer exists. Otherwise you will be wasting your time & money.

[yallow]

yes, my current leave is valid until I have stayed here 5 years exactly. I think UKBA gave it to me on purpose so that I didn't have to apply one more time. But they issued it 3 and a half years ago when the 3 month rule didn't exist yet.

So if they were not so generous with me - I would be able to apply earlier but now I have to sit and wait.

[cs95tdg]

yes, my current leave is valid until I have stayed here 5 years exactly. I think UKBA gave it to me on purpose so that I didn't have to apply one more time. But they issued it 3 and a half years ago when the 3 month rule didn't exist yet.

So if they were not so generous with me - I would be able to apply earlier but now I have to sit and wait.

It would probably clearer if you mentioned the actual dates of your EC, date of entry & when your current leave to remain expires to provide guidance on when you would be eligible to apply. But the fact that the CW guidance (i.e. which allows them to consider the time between EC & date of entry towards the 5 year residency) was introduced recently, i.e. after you entered the UK does not mean it wouldn't apply to you.

[yallow]

HSMP visa granted 16/10/2007
Entry to the UK 08/01/2008
Tier 1 visa valid until 08/01/2013

[cs95tdg]

HSMP visa granted 16/10/2007
Entry to the UK 08/01/2008
Tier 1 visa valid until 08/01/2013

I'd say as you have sufficient leave to cover the 5 year residency from date of entry, it would best to apply upto 28 days before the 5th anniversary from date of entry. The CW guidance is catered to help those who do not have sufficient leave to cover the 5 year period. This is my personal opinion based on how I understand the CW discretion guidance below (Page 4).
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

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.

[Rajuk09]

HSMP visa granted 16/10/2007
Entry to the UK 08/01/2008
Tier 1 visa valid until 08/01/2013

I'd say as you have sufficient leave to cover the 5 year residency from date of entry, it would best to apply upto 28 days before the 5th anniversary from date of entry. The CW guidance is catered to help those who do not have sufficient leave to cover the 5 year period. This is my personal opinion based on how I understand the CW discretion guidance below (Page 4).
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

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.

We need to find the right answer for this ,I am in a similar situation and I am seeing different replies by diff people , query is
Can some one apply for ILR having months left in his visa, just by using EC stamped date ?
OR only the people who do not complete 4 yrs and 11 months bec of travelling late can apply using stamped date ?

[linkers]

yallow: even if you have sufficient leave to cover the 5 year residency from date of entry, you can still benefit from the new rule. You can still apply 28 days before the 5th anniversary of your first HSMP visa start date (as long as you entered the UK within 90 days of getting EC).
This is exactly what I and some other people I know have done.

[Arj12345]

[quote="Rajuk09"][quote="cs95tdg"][quote="yallow"]HSMP visa granted 16/10/2007
Entry to the UK 08/01/2008
Tier 1 visa valid until 08/01/2013[/quote]I'd say as you have sufficient leave to cover the 5 year residency from date of entry, it would best to apply upto 28 days before the 5th anniversary from date of entry. The CW guidance is catered to help those who do not have sufficient leave to cover the 5 year period. This is my personal opinion based on how I understand the CW discretion guidance below (Page 4).
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[b]Applications that fall short of the five year continuous period[/b]
In some cases, [color=blue]applicants may have been granted five years continuous leave, [b]but due to delayed travel will not have spent five years continuously in the UK before their current leave expires[/b][/color]. 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.[/quote]
We need to find the right answer for this ,I am in a similar situation and I am seeing different replies by diff people , query is
Can some one apply for ILR having months left in his visa, just by using EC stamped date ?
OR only the people who do not complete 4 yrs and 11 months bec of travelling late can apply using stamped date ?[/quote]


I am using this clause for my appointment on monday, I'll let you know how it goes, hopefully it will clear matters on this once and for all!!

i.e using the 5 days between entry clearance and arrival in my 28 days even though I have enough leave to remain for another few months

[linkers]

Arj12345: I myself had enough leave to cover 5 years from date of entry but I still benefited from this rule. I also asked the case worker about this and he said that anyone can benefit from this rule.
I personally know a lot of people who applied 28 days before the 5th anniversary of their EC (even though they had enough leave left).
So it’s entirely up to you, if you are not comfortable about applying early, you can still apply 28 days before the 5th anniversary of your first entry to the UK.

[yallow]

Arj12345: I myself had enough leave to cover 5 years from date of entry but I still benefited from this rule. I also asked the case worker about this and he said that anyone can benefit from this rule.
I personally know a lot of people who applied 28 days before the 5th anniversary of their EC (even though they had enough leave left).
So it’s entirely up to you, if you are not comfortable about applying early, you can still apply 28 days before the 5th anniversary of your first entry to the UK.

Great news, linkers! Which PEO did you use?

[linkers]

I used Solihull and there were 2 other applicants at that day in Solihull who had enough leaves left but they still applied 28 days before the 5th anniversary of their EC dates and they got the ILRs successfully.

To be honest this rule has been around for a while, and the case workers don't really bother if you are applying 28 days before your EC or Entry date.

[yallow]

thanks for your quick reply linkers. One more question please. Did you count the days between EC and first entry as absences or not?

[linkers]

No, the days between EC and first entry are not counted in absences. You need to be present in UK first to be absent.

[Arj12345]

[quote="linkers"]No, the days between EC and first entry are not counted in absences. You need to be present in UK first to be absent.[/quote]

Perfect Linkers, thanks for your help! I waited months and no one clarified this until one of my friends did the same with success.

I think this needs to be put as a sticky somewhere

[linkers]

I can understand your frustration Arj12345.

Even I have explained this rule so many times on this forum so having a sticky on this topic would be really useful.

[saraq]

I went to one advisor and she told me that the rule only applies for those who are granted continuous 5 yrs and not 2yrs + 3 yrs extension
also she said we have the visa remaining so this 3 months concession rule wont apply

dates: 20 sept 07entry clearance visa issued
29 october 07 entered UK
visa valid till 6 october 2012
booked app for 29th august 2012 ( for which she says we are not eligible to apply )
really need help !

[Arj12345]

My friend had the same situation as you (2 years work permit, 3 years Tier 1, Tier 1 extension valid till 2014) , he went through a lwayer as well but he applied 28 days from visa validity date (not stamp date) of his work permit and had no issues. The Lawyer also advised him as it is fine.

Don't worry, some of these Lawyers are misinformed or scaremongers, why would you spenk over 1K just to fill out forms. Worse case you apply again, no point in wasting more money on the lawyer than the applications.

Anyway I am going on monday, I will let you know the situation either way

[saraq]

My friend had the same situation as you (2 years work permit, 3 years Tier 1, Tier 1 extension valid till 2014) , he went through a lwayer as well but he applied 28 days from visa validity date (not stamp date) of his work permit and had no issues. The Lawyer also advised him as it is fine.

so you clearly mean
visa validity date = entry clearance date on visa
stamp date= entered in the uk ?
sorry i m asking so many qs bcoz i pais 100 pounds to get confused lol

[yallow]

Anyway I am going on monday, I will let you know the situation either way

Please correct me if I am wrong.
Are you going to try and use the 3 months rule even though your leave allows you to wait until 5 years? Am I right?
If so, which PEO are you going to use and please let us know the outcome!

Many thanks!

[saraq]

http://www.immigrationboards.com/viewtopic.php?t=110870

approved today !

[appsmaje]

I can understand your frustration Arj12345.

Even I have explained this rule so many times on this forum so having a sticky on this topic would be really useful.

thanks for this information. i suppose this is one of those unwritten rules? or is there a reference somewhere I can use just in case.

I am on the same situation and actually anxious about it. as I have around 90+ days of vacations away from the UK and have 85 days for this late entry to UK. So I am afraid of this if they count it towards my number of days away.

[cs95tdg]

I have around 90+ days of vacations away from the UK and have 85 days for this late entry to UK. So I am afraid of this if they count it towards my number of days away.

To be absent you need to have entered the UK first. Therefore the 85 days you mention cannot be counted as absences, i.e. because you were not in the UK to be absent.