Applying for ILR LR....visa gap

[violetta]

Bit of a dilemma. Wife is applying for ILR (LR), has been here since year 2000. Her PEO appt. is in Solihull on

She's been here legally for all 15yrs. However - there is a gap in her visa in 2011. She submitted her visa within the 28 days after the expiration date (which it states on the application form is legal). She came here under the US military and works on the US airforce base here in England. However! They took a long time dithering and such and only submit the visas at the end of each month. Therefore - her expiration date was 08 Nov 2011. If she has 28 days after where she can submit, she cut it a bit fine and sent it before 06 Dec 2011 (28 days later) but still within 28 days. But military office that deals with visas did not send it til end of Dec- thus delaying it - but this is not her fault.
There is no way she can prove that she sent it before 6th dec, right? And to prove US military dithered and sent it out - we can't prove that, can we? Will they apply discretion with her application? Therefore her application will probably be denied? Does this count as unlawful residence?

Would be a shame if she were denied it...been here 15yrs legally... more than half her life (she's 26, came here when she was 12). Does her time here legally reset in 2011 so she can't settle here permanently until 2021?

[violetta]

What does this mean -"the applicant must not be in the uk in breach of immigration laws except for any period of overstaying if the application was submitted before 9 july 2012 which will be disregarded"?

Does it mean if you went over your 28 days for renewing your visa it doesn't count if it was before Jul, 2012? Or does it mean the application ILR?

Please help - so stressed out about this! She says she submitted it within 28 days of 08 Nov 2011 but she isn't sure.... what will they do on the day of the appointment? Are they going to deny her it?

[violetta]

They give illegal immigrants who are aged 18-25 and have been in UK over half their life their residencies.... my wife is 25, has been here over half her life (15yrs). Surely they would make an exception since she been here 15yrs and only had one gap in her visa? We can't establish if she submitted in time (28 days after 08 nov 2011) but she says she at least thinks she did.....

[secret.simon]

Date of submission for a visa application is the date it was posted or handed over to the Home Office, not the date she gave it to her HR team. If that was more that 28 days from the end of the visa, I believe that she would be classed as an overstayer.

If your wife is 25 (which she is until the day before her 26th birthday), better for her to apply on the basis of having spent more than 12 years in the UK.

[violetta]

That's not her fault though surely as she wasn't aware the military doesn't send the visas out until the end of the month?

Will they grant her ILR anyway, because she's been here over half her life?

[geriatrix]

Please refrain from making multiple posts.

[Zee ali]

That's not her fault though surely as she wasn't aware the military doesn't send the visas out until the end of the month?

Will they grant her ILR anyway, because she's been here over half her life?

Even if she proves that she lived here for half of her life and age between 18 to 25 they will issue her 2.5 years visa and she needs 3 more 2.5 years extensions. total 10 years and than ILR.

[secret.simon]

Thanks, Zee Ali. I stand corrected.

Your wife could still get ILR, but it will be at discretion and not certain. You are therefore taking a chance and need to prepare the application accordingly (a very good and clear cover letter, etc).

The internal workings and procedure of your wife's employer is of no concern to the Home Office. It is your wife's responsibility to ensure that she submitted the application in good time. She could even have submitted the application a couple of months in advance.

[violetta]

Thanks for the reply.

How do we prepare accordingly for them to exercise discretion? For instance, what should I write in the cover letter?

I mean, it does seem a bit unfair to be penalised for the mistake of the US Military visa office... they talk to up basically everyone's visas and such. It's not her fault/she didn't know they would take so long and she learnt her lesson and never went through them again. It will be devastating if she's rejected on Tuesday. She's spent 15yrs here legally but one slip in 2011 and now her clock is reset. That means we'll have to be long distance (as I live in a different UK city to her and have to move back now, after having lived with her for 3yrs) until 2021.

She's a desirable candidate in every other sense and fulfils all the other requirements - she's American/first language is English. She's been on a work permit/work visa since she was 18. So she's worked in the UK for 7yrs, with a job on one of the US military bases here. She owns property here/has lived here more than half her life (16 years now). Can't believe it. Devastated.

What other factors are likely to make them exercise discretion? The time she's been out the UK has never been over the total number of days allowed, if that helps. She doesn't have a crminal record.

[nasirkhan]

Thanks for the reply.

How do we prepare accordingly for them to exercise discretion? For instance, what should I write in the cover letter?

I mean, it does seem a bit unfair to be penalised for the mistake of the US Military visa office... they talk to up basically everyone's visas and such. It's not her fault/she didn't know they would take so long and she learnt her lesson and never went through them again. It will be devastating if she's rejected on Tuesday. She's spent 15yrs here legally but one slip in 2011 and now her clock is reset. That means we'll have to be long distance (as I live in a different UK city to her and have to move back now, after having lived with her for 3yrs) until 2021.

She's a desirable candidate in every other sense and fulfils all the other requirements - she's American/first language is English. She's been on a work permit/work visa since she was 18. So she's worked in the UK for 7yrs, with a job on one of the US military bases here. She owns property here/has lived here more than half her life (16 years now). Can't believe it. Devastated.

What other factors are likely to make them exercise discretion? The time she's been out the UK has never been over the total number of days allowed, if that helps. She doesn't have a crminal record.

I am not an expert on immigration rules but I tend to think that you have a strong case. She completed 10 years legal residence in 2010 and the gap is in 2011. So she has 10 years under her belt. Also the fact that she has spent all her adult life in this country makes your case much stronger. I think you have to be very meticulous in preparing your case but it is certainly winnable in my point of view.

[quantum1]

She'll get it. 100% certain. Ukvi is not unreasonable. And secondly she qualifies, doesn't even need discretion. Just state her circumstances and the fact that she has spent 10 year lawfilu continuous residence here. These 10 years don't have to be most recent 10 years. So she qualifies

[violetta]

Are you certain about that last bit? As long as it's a 10 year period, doesn't need to be most recent, the clock doesn't "reset"?

Have written a cover letter anyway, explaining that it wasn't her fault/it's the policy of the military visa office which she wasn't made aware of...please be lenient/she's an excellent candidate in all other ways/been in employment in the uk for 7 yrs/been in uk for 16 years so over half her life as she's 25.


If that's the case - I feel at ease now! Thanks so much for responding!

[violetta]

Oh my god- I just had a thought. Someone PLEASE Help this is urgent. If they find out my wife overstayed (by accident), even though she had her visa renewed a month or two later, will they deport her? She's currently on a work visa with the US military. If they'll deport her after finding out at the appointment she overstayed in 2011 by 2 months - are they going to ban her from living in UK? Should we not attend the appointment? I am freaking out right now.

[violetta]

why did immigration renew her visa in 12 jan 2012 if her previous visa expired 08 nov 2011? i thought they deport you if you're an overstayer? her visa just says "limited leave to remain" even though she's on a (work visa??) working for us military in the uk

[violetta]

She can't have overstayed, correct? Otherwise, if she'd "overstayed" past 08 Nov 2011/28 days after, why did immigration renew her visa in jan 2012?

[secret.simon]

She is unlikely to be deported if she has current leave to remain.

I disagree with quantum1. To the best of my knowledge, for ILR, it is the most recent 10 years (10 years going back from the date of the application) that count.

I believe that s/he is confusing it with the rule for PR for EEA citizens, which requires any five continuous years of exercising treaty rights.

The major difference of course is, PR Is acquired automatically when the EEA Regulations are met. ILR is granted by the UKV&I.

As for the cover letter, it sounds good. Essentially put down what you have put down in this thread about why she should be given ILR. Just don't make it too long A letter, not a thesis.

[secret.simon]

She can't have overstayed, correct? Otherwise, if she'd "overstayed" past 08 Nov 2011/28 days after, why did immigration renew her visa in jan 2012?

Leave to remain can be given even if she is an overstayer. Indeed, it can even be given to and has been given to people who have spent years in the country illegally. However, it does not remove any prior overstaying status or any penalties attached to that.

[violetta]

But why did they renew her visa in jan 2012 if her previous expiry was nov 2011? doesn't that signify that they didn't class her as an overstayer and therefore renewed it?

[secret.simon]

It means that she met the requirements for the leave to be granted in January 2012, nothing more.

Generally, being an overstayer does not disqualify you from getting further leave to remain later on.

Have you submitted an SAR request to the Home Office? It may state on it if they thought she was an overstayer.

[violetta]

so they'll still grant you your visa even if the extension arrived late/they can see you overstayed? I wasn't aware.


How much do you think it'll affect her chances? Will they deny her request for irl based on the period of overstay do you think?

[secret.simon]

Yes, because typically being an overstayer is not a disqualification for further leave to remain. It is for ILR and it certainly is for citizenship.

[violetta]

They make no exceptions for ILR? She'll never get citizenship? She's a perfect candidate in every other sense..... I'm so depressed right now. I feel terrible.

What about if she's been employed in the UK for 7 years?

[secret.simon]

They do make exceptions, but they are at discretion, not by right. Which is why I suggested a good cover letter. Remember that discretion is just that, that she can be refused. Just put your best foot forward and give it a go.

As regards citizenship, currently there is a 10 year ban for breaking any immigration law. So, the earliest that your wife would be eligible under current rules (subject to them not changing, which they do, quite often) is January 2022.

[vinny]

They should grant ILR.

[violetta]

okay, we're going to give it a go anyway
her appointment is on Tuesday, so I'll get started on the cover letter now. I have a degree in English so hopefully I can write it well but keep it concise.

Thanks for everyone's help. I am sort of hoping they'll exercise discretion seeing as young people her age 18-25 who've been here more than half their life (which she has - she's been here since she was 10 - so 15 years) can be granted ILR, as long as they're suitable candidates/not a threat to the british people. She's a perfect candidate in every other sense. She also has no ties to USA besides her dad, who her mom divorced when she was very young (like 7?), who she gained full custody of, so she didn't grow up living with her/and she hasn't spoken to her dad for a decade (they do not get along). Should i mention the latter bit in the cover letter or is it a bit too personal?