5 Year period - conflict between Guidance and Directorate

[gdyoung]

Hi,

I have a question about the 5 year settlement period. According to the guideance notes (as well as information I found in this forum), the qualifing period starts on the day you entered the UK (if you obtained the visa outside the UK) and you can apply up to 28 days in advance of your 5 year period.

However, according to the Directorate:

2.2 Applications that fall short of the five year continuous period

In some cases, applicants may have been granted 5 years continuous leave, but will not have spent 5 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 5 years, provided this period was not longer than 3 months.

A professional advisor also indicated that:

As the initial visa was granted on the 11th January 2008, then he should be able to apply 28 days before the 11th January 2013, providing he came to the UK within 3 months of the 11th January 2008.

I'm confused as to why different sources state different things, so could anyone help me clairify this?

Thanks!

[cs95tdg]

I'm confused as to why different sources state different things, so could anyone help me clairify this?

What different sources are you referring to here?

The quote you have cited above (extracted from the following link) is a concession given to those who have entered the UK within 3 months of EC who would not otherwise meet the 5 year residency requirement for ILR as an economic migrant. It does not go against the UKBA Immigration Rules or the information provided under the FAQ sticky on this forum.

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

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

If an applicant entered the UK after 3 months of EC, then they would need to use the date of entry rather than date of EC to calculate their 5th anniversary to apply for ILR.

[rasinrdj]

Hi,

However, according to the Directorate:

2.2 Applications that fall short of the five year continuous period

In some cases, applicants may have been granted 5 years continuous leave, but will not have spent 5 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 5 years, provided this period was not longer than 3 months.

A professional advisor also indicated that:

As the initial visa was granted on the 11th January 2008, then he should be able to apply 28 days before the 11th January 2013, providing he came to the UK within 3 months of the 11th January 2008.

I'm confused as to why different sources state different things, so could anyone help me clairify this?

Thanks!

The Directorate and professional advisor both say the same thing, what's different between the two above?

[gdyoung]

What I'm confused about is the difference between the directorate and the guidance. The working of the guidance is below:


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 permission 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.

I obtained a visa on 11 Jan 2008, but didn't enter until 9 Feb 2008. According to the guidance, my qualifing period didn't start until 9 Feb 2008 and therefore I cant apply until 28 days before 9 Feb 2013.

However, according to the directorate I can count the period between when I obtained the visa and when I entered the country (as long as it was less than 3 months). This would mean I could apply 28 days before 11 Jan 2013.

I hope this explains it a little bit clearer and apologies if I'm just missing something simple.

Thanks!

[cs95tdg]

What I'm confused about is the difference between the directorate and the guidance. The working of the guidance is below:


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 permission 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.

I obtained a visa on 11 Jan 2008, but didn't enter until 9 Feb 2008. According to the guidance, my qualifing period didn't start until 9 Feb 2008 and therefore I cant apply until 28 days before 9 Feb 2013.

However, according to the directorate I can count the period between when I obtained the visa and when I entered the country (as long as it was less than 3 months). This would mean I could apply 28 days before 11 Jan 2013.

I hope this explains it a little bit clearer and apologies if I'm just missing something simple.

Thanks!

It's really simple. Hopefully my second attempt at explaining this will help you understand what the rules state and also what the concession mentioned in the guidance is meant for.

The guidance was modified to include the 3 month concession in 2012. It's meant for CW's to use when determining whether an applicant has met the 5 year residency requirement for ILR. A CW can apply this concession when an applicant falls short of the required 5 years due to late entry into the UK (but only upto 3 months from EC).

In essence, in your case, if you have sufficient leave to remain from date of entry (i.e. 9 Feb 2008), to cover the required 5 years then the concession would not apply to you - Meaning you are eligible to apply for ILR upto 28 days before 9 Feb 2013. But if you don't (i.e. your current leave to remain expires before you complete 5 years from 9 Feb 2008) then the concession will apply to you - Meaning you are eligible to apply for ILR upto 28 days before 11 Jan 2013.