New rules

[samira_uk]

One of my friend just applied for extension today at Glasgow. His current leave will expire in 12 days but they grant him a new leave from today and not from expiry of the visa!!!!

I cannot understand this new changes. Then, if you want to have 5 years in full you should apply on the last day of your leave (which is impractical) or you should apply for 2nd extension and I guess that this a new policy to receive more application fees.

I know that in the UKBA website such thing has been mentioned for a long time but actually it was designed for postal application. It is very unfair for Same Day applicants who pay much more but are granted less.

[UKBALoveStory]

One of my friend just applied for extension today at Glasgow. His current leave will expire in 12 days but they grant him a new leave from today and not from expiry of the visa!!!!

I cannot understand this new changes. Then, if you want to have 5 years in full you should apply on the last day of your leave (which is impractical) or you should apply for 2nd extension and I guess that this a new policy to receive more application fees.

I know that in the UKBA website such thing has been mentioned for a long time but actually it was designed for postal application. It is very unfair for Same Day applicants who pay much more but are granted less.

It is mentioned in the Tier 1 guidance explicitly so no one can complain

[Highly_Skilled]

One of my friend just applied for extension today at Glasgow. His current leave will expire in 12 days but they grant him a new leave from today and not from expiry of the visa!!!!

I cannot understand this new changes. Then, if you want to have 5 years in full you should apply on the last day of your leave (which is impractical) or you should apply for 2nd extension and I guess that this a new policy to receive more application fees.

I know that in the UKBA website such thing has been mentioned for a long time but actually it was designed for postal application. It is very unfair for Same Day applicants who pay much more but are granted less.

It's not designed for postal applications because by the time postal applications are granted, the date of current visa expiry has already expired. So there is no choice but to grant from date of decision.

The rule has been brought in place for clarification for all caseworkers The guidance has always said 2 or 3 years no more or less. It has never been part of the rules to grant from date of expiry. However, this was being done by staff. So now that it is part of the Immigration Rules, no one can argue.

[samira_uk]

You are both wrong. First of all Tier 1 Guidance is not immigration rule. Nothing in Immigration rules is said about when to apply therefore it is only some technical guidance by UKBA. Could you please show me in which part of immigration rules it is mentioned? it is only mentioned in Tier 1 Guidance and UKBA website but these are not the rules.

Then, could you please suggest what Same Day applicants should do? When could they apply? They are paying much higher and then they should be given less leave? It is not possible to apply on the last day of leave. In addition, as you can see this is not a consistent rule and someone in last week granted correctly.

In the rules it is said that the leave should be 2 or 3 years but it is a problem for in country Same Day applications as they may have to apply for second extension. Why UKBA did not care about it and suddenly changed its procedure? It is nothing but earning more money for their poor service.

You are both again wrong. This can be argued based on fairness which should be followed in all public sector rules. I can refer you to the problem in payment decline in postal applications which caused the court ordered UKBA to give another chance to postal application to be fair in regard to applicants. Be sure that if they implement such thing in immigration rules, they will face many court cases.

Again, your mentioned guidance has been in place for a long time and mostly for postal application because if you remember in the past (2 years ago) many postal applications were decided in less than a month and therefore UKBA asked to not send your application so early.

You are making another mistake by referring to 2 or 3 years rules. Assuming my current leave is expiring on 1st May and I am applying on 20th April and caseworker will grant new 2 years leave from 1st May. It is not actually 2 years and 10 days leave (as you suppose). It is actually the same 2 years because this 10 days is covered by previous leave which is now cancelled but actually added to the new leave.

Finally, who said that nobody can argue about immigration rules? Please read more about immigration rules, many of rules changed due to argue in the courts.

[Highly_Skilled]

You are both wrong. First of all Tier 1 Guidance is not immigration rule. Nothing in Immigration rules is said about when to apply therefore it is only some technical guidance by UKBA. Could you please show me in which part of immigration rules it is mentioned? it is only mentioned in Tier 1 Guidance and UKBA website but these are not the rules.

Then, could you please suggest what Same Day applicants should do? When could they apply? They are paying much higher and then they should be given less leave? It is not possible to apply on the last day of leave. In addition, as you can see this is not a consistent rule and someone in last week granted correctly.

In the rules it is said that the leave should be 2 or 3 years but it is a problem for in country Same Day applications as they may have to apply for second extension. Why UKBA did not care about it and suddenly changed its procedure? It is nothing but earning more money for their poor service.

You are both again wrong. This can be argued based on fairness which should be followed in all public sector rules. I can refer you to the problem in payment decline in postal applications which caused the court ordered UKBA to give another chance to postal application to be fair in regard to applicants. Be sure that if they implement such thing in immigration rules, they will face many court cases.

Again, your mentioned guidance has been in place for a long time and mostly for postal application because if you remember in the past (2 years ago) many postal applications were decided in less than a month and therefore UKBA asked to not send your application so early.

You are making another mistake by referring to 2 or 3 years rules. Assuming my current leave is expiring on 1st May and I am applying on 20th April and caseworker will grant new 2 years leave from 1st May. It is not actually 2 years and 10 days leave (as you suppose). It is actually the same 2 years because this 10 days is covered by previous leave which is now cancelled but actually added to the new leave.

Finally, who said that nobody can argue about immigration rules? Please read more about immigration rules, many of rules changed due to argue in the courts.

I'm not arguing with you because I know for a fact that caseworkers are granting 2 or 3 years from date of decision (depending on the original grant of leave). Whether you believe this to be wrong is immaterial.

245CB. Period and conditions of grant

(a) Leave to remain will be granted for a period of 2 years, to an applicant who has, or was last granted, leave as a Tier 1 (General) Migrant under the Rules in place before 6 April 2010.

(b) in all other cases, leave to remain will be granted for a period of 3 years.

The above has been taken from Part 6A of the Immigration Rules. It does not make any mention of date of expiry. This has been specifically included to prevent people stating that the wrong grant of leave has been given.

This was partly done due to the recent Alvi Judgement that concluded the UKBA were unable to refuse on anything that is stated in guidance and not reflected in the Immigration Rules. As such, UKBA have adopted this approach and amended the Immigration Rules to state 2 or 3 years. No more, no less.

[shahmir]

245CB. Period and conditions of grant

(a) Leave to remain will be granted for a period of 2 years, to an applicant who has, or was last granted, leave as a Tier 1 (General) Migrant under the Rules in place before 6 April 2010.

(b) in all other cases, leave to remain will be granted for a period of 3 years.

But nobody is arguing 2 or 3 years period, question here is the date when the extension starts. Date of decision or date of expiry of previous leave.

I always remained in the impression that if i will go to PEO within last 28 days i will definitely get extension from date of expiry of previous leave. Unfortunately it didn't happen, my current leave is going to expire on 2nd May and my appoint was on 5th April. Extension granted from 5th April. So I am well short (about 27 days). I argued but caseworker said this is not at their discretion anymore. He however said that i can apply for ILR at the end of April by post. He meant I can overstay for around 23/24 days.

Current Tier 1 extension form suggests the same. See Questions D5 & D6. Also see paragraph 44 in the Tier 1 Guidance notes. It is clear that you can overstay for 28 days and you don't have to provide any reason for this. But unfortunately we don't have these D5 & D6 in the Set(O) form and I am not sure whether I can overstay for up to 28 days before applying for ILR.

[vinny]

See also Early Extensions: Tightening the noose.

[shahmir]

http://www.ukba.homeoffice.gov.uk/visas ... -to-apply/

In Tier1 (G) Applying section, click on "When to Apply" and you will find this

This page explains when you should apply for permission to remain in the UK under Tier 1 (General).

We encourage you to make your application at least 1 month before your current permission to stay expires. However, if you apply significantly more than 1 month before your permission to stay expires, and you want to apply for settlement later, you may not have accumulated enough total permission to stay. This is because your new permission to stay will begin on the date when we make the decision, not the date when your current permission expires.

So if they clearly encourage to apply within last one month to avoid any shortfall later for ILR, and then they extend leave from date of appointment at PEOs, how can they later insist to apply once full five years have been completed?

However, i have found another documents from UKBA website which now clearly shows that we can overstay for 28 days before ILR. , no reason required.

Read Page 24 of this document

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Breaks in the period of lawful residence may only be disregarded in the following
circumstances:
 applications made on or after 9 July 2012, where the application for ILR is made no more than 28 days after the expiry of the applicant’s previous leave
 any periods disregarded in granting leave to remain on or after 1 October where they occur during the qualifying period for ILR.
The 28 day period of overstaying is calculated from the latest of the:
 end of the last period of leave to enter or remain granted
 end of any extension of leave under sections 3C or 3D of the Immigration Act 1971, or
 point a migrant is deemed to have received a written notice of invalidity, in accordance with paragraph 34C or 34CA of the Immigration Rules, in relation to an in-time application for leave to remain.


BUT HOW CAN WE SATISFY OUR EMPLOYERS ABOUT OVERSTAYING? THE RULES ARE RUBBISH, SIMPLE THINGS BECOMING COMPLICATED. EVERY OTHER DAY, NEW RULES, WITHOUT ASSUMING OUTCOMES, RIDICULOUS!!!

[vinny]

BUT HOW CAN WE SATISFY OUR EMPLOYERS ABOUT OVERSTAYING?

Overstayers have no right of appeal against a refusal, nor the right to work. Plus a possible re-entry ban!

THE RULES ARE RUBBISH, SIMPLE THINGS BECOMING COMPLICATED. EVERY OTHER DAY, NEW RULES, WITHOUT ASSUMING OUTCOMES, RIDICULOUS!!!

Many would agree:

The system which the Secretary of State operates today in the administration of the 1971 Act is far removed from that which was contemplated at the time when the Bill that became that Act was being discussed in Parliament. The first versions of the rules were 17 and 20 pages long. The 1994 Statement of Changes in Immigration Rules (HC 395) extended to 80 pages. There have been over 90 statements of change since then, and HC 395 has become increasingly complex. The current consolidated version which is available on line from the UKBA website extends to 488 pages. Extensive use is now made of the internet, a system for the dissemination of information to the public that was, of course, unknown 40 years ago. 19 statements of changes in the Immigration Rules have been published on the website since February 2010. There have been four this year, the last of which was in June 2012. The ease with which information on a website can be removed, added to or amended encourages resort to these techniques to a degree that would have been wholly impracticable in the days of the mechanical typewriter. In DP (United States of America) v Secretary of State for the Home Department [2012] EWCA Civ 365, para 14 Longmore LJ lamented, with good reason, the absolute whirlwind which litigants and judges now feel themselves in due to the speed with which the law, practice and policy change in this field of law.

See also Lord Lester's comments.

Court of Appeal has finally had it with the Points Based System.

[shahmir]

Guidance for Set (o)
http://www.ukba.homeoffice.gov.uk/sitec ... o04091.pdf

Page 2
5 WHEN TO APPLY
You and any dependants applying with you should
apply before the end of your/their permitted stay in the
UK.
There is a qualifying period to complete in most of the
categories on this form. It runs either from
- the date on which you entered the UK with a visa
in the relevant category; or, if you did not enter the
UK with such a visa, from
- the date on which you were first granted permis-
sion to remain in the UK in the relevant category.
If you entered the UK with a visa several weeks or
more after the date from which it was valid for use, you
may need to apply for an extension of stay to complete
the relevant qualifying period.

Please do not apply more than 28 days before completing the qualifying period. If you apply earlier than
that, your application may be refused. If that happens,
we will not refund the fee and you will have to pay
again when reapplying.
The qualifying periods are as follows:
5 years In the work permit holder, employment not
requiring a work permit, businessperson, innovator,
investor, self-employed lawyer, writer, composer or
artist, UK ancestry, Tier 1 and Tier 2 categories or
routes.
3 years in the Tier 1 (Entrepreneur) - accelerated
route. Applicants must ensure that they qualify for the
accelerated route before submitting an application for
indefinite leave to remain on that basis.
2 or 3 years in the Tier 1 (Investor) - accelerated
route, depending on the level of investment in the UK.
Applicants must ensure that they qualify for the
relevant accelerated route before submitting an
application for indefinite leave to remain on that basis.
5 years or 4 years in the highly skilled migrant category. The 4-year qualifying period applies only to applications made under the terms of the HSMP indefinite
leave to remain judicial review policy document. Those
terms apply only if you applied successfully under the
highly skilled migrant programme (HSMP) before 3
April 2006. All other highly skilled migrant applications
are subject to the 5-year period.
4 years in the ex-HM Forces category.
There is no qualifying period in the bereaved partner
category.

So it is quite clear in the guidance notes that we can apply for ILR upto 28 days before qualifying for ILR. I don't know where I heard that one cannot apply for ILR unless he has completed full five years. I now believe this perception is wrong.

In my case for example, where my Entry Clearance was from 02-May-2011 to 02-May-2013, and extension granted at a PEO on 05-April-2013 until 05-April-2016, I think the date of application for my ILR should be 05-April-2013 which fits in within last 28 days and without overstaying.

Similarly OPs friend shouldn't worry for a shortfall of 12 days as now they can apply for ILR after 4 years, 11 months and 3 days (i.e. 28 days prior to qualifying for ILR) .Correct me if I am wrong, then I will continue with another issue which I found above?

[mulderpf]

The rules haven't changed in this regard at all. The rules are simply just being applied slightly differently compared to before.

If you apply within 28 days of your expiry of current leave (as per the warning which has been on the UKBA site for more than two years now!), then there isn't much to worry about.

As for the complaint about being "granted less", no you are not being granted less. Your friend would have received 3 years (or 2) from today. That's the same as everyone else. The rule being applied in this way isn't "designed for" postal applications - it is to stop people from being ridiculous and applying months before their visas are due to run out.

See this thread - postal application are getting the same, not more compared to PEO appointments.

Changes take place all the time. In this case, I take the UKBA's side, because they have put a warning on their website since I applied for my initial visa saying that people shouldn't apply more than a month before their visas expire. But people continued to disregard it and now that they are starting to enforce this, everyone's up in arms about it. Obviously the government wants to get net immigration down, so obviously they will try and make it as difficult as possible for immigrants to stay (whether it makes economic sense or not!!) - so just stick to the rules and don't make assumptions! Just because "they've always done it like that", doesn't mean they will continue doing it like that.

Prepare for the worst, hope for the best!!

[vinny]

In my case for example, where my Entry Clearance was from 02-May-2011 to 02-May-2013, and extension granted at a PEO on 05-April-2013 until 05-April-2016, I think the date of application for my ILR should be 05-April-2013 which fits in within last 28 days and without overstaying.

If you initally entered within 3 months, then I think you may apply for ILR on Monday, 4 April 2016.

[shahmir]

Thank you Vinny, you have checked day of the week as well. Interesting links. However the word 'may' always confuses me. I entered UK on 03-June-2011. Can you still see any problem or clearly no problems?

[samira_uk]

The rules haven't changed in this regard at all. The rules are simply just being applied slightly differently compared to before.

If you apply within 28 days of your expiry of current leave (as per the warning which has been on the UKBA site for more than two years now!), then there isn't much to worry about.

As for the complaint about being "granted less", no you are not being granted less. Your friend would have received 3 years (or 2) from today. That's the same as everyone else. The rule being applied in this way isn't "designed for" postal applications - it is to stop people from being ridiculous and applying months before their visas are due to run out.

See this thread - postal application are getting the same, not more compared to PEO appointments.

Changes take place all the time. In this case, I take the UKBA's side, because they have put a warning on their website since I applied for my initial visa saying that people shouldn't apply more than a month before their visas expire. But people continued to disregard it and now that they are starting to enforce this, everyone's up in arms about it. Obviously the government wants to get net immigration down, so obviously they will try and make it as difficult as possible for immigrants to stay (whether it makes economic sense or not!!) - so just stick to the rules and don't make assumptions! Just because "they've always done it like that", doesn't mean they will continue doing it like that.

Prepare for the worst, hope for the best!!

As other user said, the problem is not 2 or 3 years as it has been always the same. As you yourself said nothing changed and therefore I am not agree with the users who said it is now in immigration rules as no change has been made in this regard in immigration rules or guidance. The question is the same that when this 2 or 3 years will be started and nothing said in this regard in immigration rules and you still could challenge it as guidance or some website with so many mistakes cannot be used as a rule.

About granting less, yes it is granting less. Why you are all sticking to this 2 or 3 years and repeating it. Currently, postal application are processed in more than 5 months and therefore if someone with leave expiring on 1st May applies on 10th April and gets decision on 10th Sep, he will actually get about 3 years and 4 months leave! However, in the same situation for same day application the same person will extend actually about 2 years and 11 months and some days. Dont fool yourself with the appearance of the law, think about its outcome and consequences. It is a unjust privilege for postal applications.

And you are all repeating something that it is to avoid early application. In UKBA website itself said that please apply in the last month, OK then when you apply in the last 28 days, you are not applying soon and there is no reason to be punished. I am not speaking about someone who applied 3 months early.

This encourages people to apply by post but we all know what is a crap system for postal application and you should wait for ages and finally they refuse you for junk reason or rejecting you only because they cannot debit your account once!

Thus, the only safe option for all Tier 1 General would be apply for 2nd extension if they are short of 5 years and this is only a new earning for UKBA.

Dont forget this changes in procedure (not rules or guidance) only and only affects Tier 1 General which UKBA does not like at all. No other category will be affected. Then, I dont know why you support a corrupt and mental system like UKBA which even did not bother itself to announce this in public and warn the applicants. At least the applicants could book appointments near their expiry and understand that the 28 days rule was gone.

I know many other similar cases by this money wasting public organization and cannot understand your support and repeating their meaningless ideas.

[samira_uk]

In this case, I take the UKBA's side, because they have put a warning on their website since I applied for my initial visa saying that people shouldn't apply more than a month before their visas expire. But people continued to disregard it and now that they are starting to enforce this,

We are not speaking about anyone who applies 3 months early. Listen to yourself! the question is for cases who applied only 2 weeks early but they were punished. They all followed this rule by UKBA but suddenly UKBA decided without any notice to give them less leave (in compare to the past).

And I again ask you and all other fans of UKBA, what in person applicants should do? And how could you justify this injustice between postal and in person applications. Please do not repeat the 2 or 3 years rule again as I showed you that in fact postal applicants getting more.

[Sana12]

Hello,
I had applied for tier - 1 extension thru post . I applied 25 days before my visa expiry . Below are my dates
Initial application approval 4 march 2011.
Visa valid until 4 march 2013
Date of application for extension ( postal )- 8 th feb
Approval date - 27 th feb
Visa valid until 27 feb 2016
As it is said on the website" we encourage you to apply at least 1month before your current leave to remain expires... So I had just followed that.

This makes me 5 days short of ILR . As I can read on the forums that people who have applied in person had the same Problem. Don' t you all think we need to ask UkB to provide us with some clarification about what would happen about our Pr. the things which are said by case workers are just verbal nothing in written. And overstaying for 28 days can change we all have either 2 or 3 yrs left for pr.

[shahmir]

For ILR, you will use Form Set (O) and guidance for this form is here:
http://www.ukba.homeoffice.gov.uk/sitec ... o04091.pdf

PAGE 3
"Please do not apply more than 28 days before completing the qualifying period"

which means you can apply on Monday 8 February 2016. Remember 2016 is a Leap year.

Even if rules change in some way, you can still apply on Saturday 27 Feb 2016 by post and pay by cheque. If date of decision is the relevant date, your application will definitely be decided after 4 March 2016.

[selva]

Hi All,
As of now, 4 years and 11 month is enough (5 years - 28 days, as you can apply 28 days early) for ILR. for PEO application UKBA was granting the visa from expire date and now they have started giving from date of decision, as someone already mention, no immigration law needed for UKBA as this is not breaking any law.

For ILR
Qualifying period is 5 years
one can apply no earlier than 28 days

but qualifying period is still 5 years. if anyone got less than 5 year (more than 4 years 11 months) then UKBA can easily say that you have not got enough qualifying period and reject at any time , they don't need any immigration law change for it (PEO applications will get affected by this if UKBA decide to do so)

Question
have anyone found qualifying period as 4 years and 11 months, if not then UKBA can reject ILR at some point without any law change

[shahmir]

Read above in detail. Qualifying period is 5years but there are several small periods which they disregard while calculating continuous leave. For example, up to 90 days from entry clearance to first entry in the uk.

It is very clearly mentioned that we should apply for ILR within last 28 days (after 4 years, 11 months and roughly 3 days)

[selva]

Read above in detail. Qualifying period is 5years but there are several small periods which they disregard while calculating continuous leave. For example, up to 90 days from entry clearance to first entry in the uk.

It is very clearly mentioned that we should apply for ILR within last 28 days (after 4 years, 11 months and roughly 3 days)

Sorry Shahmir you have not answered my question.

I am well aware of 90 days from entry clearance and other small periods

what we are talking here is that, visa extension date (PEO), which is decision date now, due to this there are number of days sort for full 5 years.

As of now, it is not a big issue since 4 years + 11 months is enough but UKBA can changed this without any law change at any time same as what they have done for visa extension date since nowhere in the UKBA or immigration law it is mentioned that qualifying period is 4 years and 11 months

Qualifying period is 5 years
one can apply 28 days before

This does not mean that qualifying period is 4 years + 11 months

[samira_uk]

And it is exactly the reason that I believe it is all to force Tier 1 G holders go for 2nd extension and pay more. As you said, they are only playing with words. You are right, they can say in future that you can apply after 4 y+11 m but you should have 5 years leave in order to apply.

They can change everything nightly without any notice and only make problem.

Look carefully at what they are saying in their website: "please apply at least 1 month before expiry..." and "..do not apply so early because...". OK why they playing with us? They are expert in defining very clear rules and then why they dont do the same for Tier 1 G? Why they dont change the rules for Tier 1 G and change the extension leave to 3 years and 1 month for example (like Tier 1 Ent and Tier 1 Investor)?

I am not optimistic at all.

[Sana12]

I agree that they can refuse the application for PR on basis that we are short of some days . Nowhere it is mentioned that you PR is given afire 4 yrs 11 months. They can clarify later and refuse Pr. I think we all should ask Ukb to clarify our position for Pr .

[shahmir]

Is there anywhere stated that we must apply after 5 year residency?

[samira_uk]

Is there anywhere stated that we must apply after 5 year residency?

Paragraph 245CD (c) in the immigration rules:

Unless the application is being made under the terms set out in Appendix S, the applicant must have spent a continuous period of 5 years lawfully in the UK, ....

I think to be fair UKBA should revert back to old 28 days rule and interpret that actually in giving the leave after expiry of previous one is based on the fact that residual leave is considered. Or they can change the rules and add an extra month to extension.

I believe that this depends on follow up and complaints by all Tier 1 G holders.

[Sana12]

I agree with Samira that we all should complain and ask for calrification or we would be in problem later i.e. at the time of our PR.