Tier 1 (General) ILR Route, Continuous 5 Years Period

[thebridgeandthebear]

Hello all,

This is my first post in the forum and I'd like to first wish you all a smooth process of migration.

Please let me summarise the key points of my circumstances:

- I hold a Tier 1 (General) Visa.
- My first successful application date is 26 March 2009 under the rules before April 2009.
- I asked for my clearance to begin from August 2009, however Border Office disregarded this and dated my visa from 26 March 2009.
- My first entry date is 30 July 2009.
- I obtained my National Insurance Number by 13 May 2010 and registered as Self-employed by 18 May 2010.
- I have been working as a freelancer and paying income tax since the tax period 2009-2010 to date.
- I made an application for extension on 30 March 2012 and my current visa expires on 31 May 2014.
- I am planning to apply for Indefinite Leave to Remain around mid-May 2014.

Can you please help me clarify whether I meet the criteria to apply for Indefinite Leave to Remain under the Tier 1 route or need to extend once more before I do?


As I understand from the UKBA document "Guidance -ILR- Calculating continuous period in the UK - v11.0", the 5 years period is counted backwards from the date of ILR application, with each year counted in 12 consecutive months.

Furthermore I understand that during these 5 years you cannot be absent for more than 180 whole days per year (12 months period) without a relevant reason.

So in my case the 5 years period would go like this from the intended date of my application:

(YEAR 1) 15 May 2014 - 16 May 2013
(YEAR 2) 15 May 2013 - 16 May 2012
(YEAR 3) 15 May 2012 - 16 May 2011
(YEAR 4) 15 May 2011 - 16 May 2010
(YEAR 5) 15 May 2010 - 16 May 2009

As my first entry date is 30 July 2009 and Border Office disregarded my plans of entering the UK by August 2009 I seem to have lost the period until my first entry.

Therefore, when I add the absence period of 75 days caused by this (16 May 2009-30 July 2009) to the additional 24 days of absence (short holidays) in the same period of 12 months, I reach a total number of 99 days within the YEAR 5 as defined above.

The days of absence in the following four years to date is a mere 62 in total.

As I understand, I am well under the 180 days per year mark and even under a 180 days of absence in total across 5 years even if the immigration officer interprets the guide differently.


Based on these points, I'd like to get your help answering these two questions:

1) Do I fulfil the continuous 5 year period requirement for applying for an ILR down the Tier 1 (General) Route as described above?
2) Do the delays caused by obtaining an NI number and registering as self-employed affect the validity of this period?

Thank you in advance for your help.

Kind regards

[smartkhan]

You need 2nd extension as you entered UK after 90 days of getting entry clearance.

[thebridgeandthebear]

Thank you for your swift reply.

I have come across many people and posts similarly confused about the effect of the 180 days absence allowed per year on late entries.

I have also coma across another typical confusion caused by UKBA's disregard to the original request to travel date filled in during initial application from outside the UK. Many people seem to suffer from this as they are only month or even days short of the 5 year period.


Just to confirm then, is the 5 year period categorically counted from the first entry date onwards -if it is later than 90 days after the date of clearance?

Or as it is stated on the latest guidance document that the 5 years period is counted backwards from the date of ILR application, in 12 consecutive months, in which case less than 180 days of absence on year 5 (the year of entry) does seem to fulfil the 5 years definition.

Neither in the latest document nor on the UKBA website under the immigration law article I could find a statement about the definition of 5 years as the fifth anniversary, but only 5 x 12 consecutive months that comprise the 5 year period. If the unit of one year is 12 consecutive months then I should be elibile, but if they require 5 calendar years to pass after your first entry categorically I am ineligible.

On a personal note, it seems counter intuitive and unfair that a case like mine is ineligible to make an ILR application due to an anniversary date; as I have spent significantly more days in the UK in professional activity than the typical migrant who made their first entry within 3 months of their clearance but exploited the 180 days absence per year allowance to its limits.

I understand the forum's stance with these matters is usually not to give the case worker any excuse to refuse or drag the procedure out as they do earn more money per failed application. However, I would like to know if the new changes to the rules actually leave more room for the interpretation of what constitutes the 5 year period.

I just want to know my options first, then do the risk assessment. Although very frustrating I am happy to apply for another extension if it is as clear an issue as your reply suggests.

Thank you once again and kind regards.

[sourish]

hi
i am also in the same situation,have u spoken to some lawyers about this issue if yes then what are they suggesting u
please advise
thanks

[smartkhan]

They count it backwards from the date of ilr application but they also see your first entry date in the UK. If you entered in the UK after 90 days of getting entry clearance they don't count that period towards 180 days of absence.

Hope that helps.