ILR qualifying period 23 days short

[Hossny99]

Hi,

I'm after some advice with the ILR application of my wife, specifically the qualifying period, and whether I would need to apply for visa extension instead.

First some important dates:
- First visa issued: 4/6/2014
- First entry to UK: 17/8/2014
- Current visa expiry: 12/5/2019
- Earliest ILR application: 7/5/2019

Her current leave to remain type is PBS dependent (tier 2 general) and I already had my ILR last year.

I was planning to apply for ILR on or after the above date, as per my calculations this should be the earliest date to apply, considering the 5 years qualifying period is completed on 4/6/2019 and it’s possible to apply 28 days before that.

However, I came across some information which made me doubt the above is actually correct. It’s about the time after the current visa expires, 12/5/2019, and until the qualifying period is completed, 4/6/2019, which means she wouldn’t be lawfully in the UK for the full qualifying period, and hence the ILR application could be refused.

My questions are:
1- Is my assumption about the 23 days between visa expiry and qualifying period completion being unlawful correct?
2- Is there any exception or condition the home office can use to disregard such period and accept the ILR application?
3- Can we have any short extension period to cover such duration? Would Section 3C of Immigration Act for example be helpful?
4- If not, do we then have to apply for a visa extension for a full 3 years and pay all the associated cost just to cover the 23 days?

Could you please let me know if you're able to help/advise?

Thanks
Mohamed

[zimba]

The (end of five year minus 28 days) determines the earliest date she can apply. The qualifying period is calculated differently.
She can apply on 07/05/2019 as she will be eligible for ILR on that day, before her visa expiry. The qualifying 5 years period required for ILR is counted from the day of application/decision counting backwards and any shortfall in the beginning will be ignored

[Hossny99]

Thanks.

Any chance you could refer me to something issued by the home office that mentions ignoring shortfall please?

[zimba]

The shortfall of 28 days or less is ignored.


https://assets.publishing.service.gov.u ... -v18.0.pdf

[Hossny99]

Sorry but I don’t think I’ve seen it anywhere in that guide mentioning to ignore shortfall although I read it previously several times.

To the contrary the part which does concern me is the following in page 6:

“The applicant must not have spent any of their time in the UK without valid leave to enter or remain.”

So even counting backwards say from the decision date would include the 23 days without a valid leave after the visa has expired on 12 May

Would you mind pointing me to the exact paragraph please?

Apologies if I’m missing something here

[aman90]

Sorry but I don’t think I’ve seen it anywhere in that guide mentioning to ignore shortfall although I read it previously several times.

To the contrary the part which does concern me is the following in page 6:

“The applicant must not have spent any of their time in the UK without valid leave to enter or remain.”

So even counting backwards say from the decision date would include the 23 days without a valid leave after the visa has expired on 12 May

Would you mind pointing me to the exact paragraph please?

Apologies if I’m missing something here

Making an 'in time application' i.e. before current visa expires, gives 3C protection till application is decided, that means the stay is lawful.
Dont fret!

Pg 9
Calculating the specified continuous period
Applicants can submit a settlement application up to 28 days before they would reach the end of the specified period.
You must calculate the relevant qualifying period by counting backward from whichever of the following is most beneficial to the applicant:
• the date of application
• the date of decision
• any date up to 28 days after the date of application

[Hossny99]

Apologies but the situation is really critical for my family and hence my anxiety.

Does this mean I can use the super priority service which provides next day decision (qualifying period counting backward from any date up to 28 days after the date of application)?

or do I have to use the normal service to have a delayed decision (qualifying period counting backward from the date of decision)?

Is there any reason the caseworker can rely on to refuse the application?! just asking as I read elsewhere that other similar cases were rejected by non-senior caseworkers

[CR001]

Apologies but the situation is really critical for my family and hence my anxiety.

Does this mean I can use the super priority service which provides next day decision (qualifying period counting backward from any date up to 28 days after the date of application)?

or do I have to use the normal service to have a delayed decision (qualifying period counting backward from the date of decision)?

Is there any reason the caseworker can rely on to refuse the application?! just asking as I read elsewhere that other similar cases were rejected by non-senior caseworkers

You seem to be completely missing the point that you can apply for ILR no sooner than within 28 days before reaching 5 years residence. Your visa must be valid on date of application submission and payment online.

HO know the rules about this 28 days concession which applies to ALL visa categories and they know very well about Section 3C if an in time application is made.

Yes you can use super priority though there is no guarantee you will get a decision within 24 hours.

Unclear what 'other similar cases' you are referring to as you have not posted the links for anyone to comment and the situations other members experienced are likely different to yours.

[aman90]

Apologies but the situation is really critical for my family and hence my anxiety.

Does this mean I can use the super priority service which provides next day decision (qualifying period counting backward from any date up to 28 days after the date of application)?

or do I have to use the normal service to have a delayed decision (qualifying period counting backward from the date of decision)?

Is there any reason the caseworker can rely on to refuse the application?! just asking as I read elsewhere that other similar cases were rejected by non-senior caseworkers

Yes! Situation is ideal!

[Hossny99]

Apologies but the situation is really critical for my family and hence my anxiety.

Does this mean I can use the super priority service which provides next day decision (qualifying period counting backward from any date up to 28 days after the date of application)?

or do I have to use the normal service to have a delayed decision (qualifying period counting backward from the date of decision)?

Is there any reason the caseworker can rely on to refuse the application?! just asking as I read elsewhere that other similar cases were rejected by non-senior caseworkers

You seem to be completely missing the point that you can apply for ILR no sooner than within 28 days before reaching 5 years residence. Your visa must be valid on date of application submission and payment online.

HO know the rules about this 28 days concession which applies to ALL visa categories and they know very well about Section 3C if an in time application is made.

Yes you can use super priority though there is no guarantee you will get a decision within 24 hours.

Unclear what 'other similar cases' you are referring to as you have not posted the links for anyone to comment and the situations other members experienced are likely different to yours.

This is one of the similar situations where the applicant sent an email to businesshelpdesk@homeoffice.gsi.gov.uk to inquire and the HO advised his visa had to be valid for him to apply within the 28 days period;

weblink removed by moderator

not sure how he got on at the end though!

Thanks for your advice and apologies for my anxiety!

[Hossny99]

Apologies but the situation is really critical for my family and hence my anxiety.

Does this mean I can use the super priority service which provides next day decision (qualifying period counting backward from any date up to 28 days after the date of application)?

or do I have to use the normal service to have a delayed decision (qualifying period counting backward from the date of decision)?

Is there any reason the caseworker can rely on to refuse the application?! just asking as I read elsewhere that other similar cases were rejected by non-senior caseworkers

Yes! Situation is ideal!

Thanks very much!

[aman90]

Thanks very much!

Just to be very clear, as long as you make the ONLINE submission after 07/05/19 but BEFORE 12/05/19, the application cannot be rejected on not completing continuous period lawfully. You may safely apply for a priority decision.
Hope it settles you and you can focus on other aspects of the application you plan to submit.

[Hossny99]

Thanks very much!

Just to be very clear, as long as you make the ONLINE submission after 07/05/19 but BEFORE 12/05/19, the application cannot be rejected on not completing continuous period lawfully. You may safely apply for a priority decision.
Hope it settles you and you can focus on other aspects of the application you plan to submit.

Yes very clear now thanks again.

Talking about other aspects, may I just ask, would it affect the decision on her ILR if I applied for citizenship while waiting for her ILR decision in case we used the standard service and not the super priority? I got my ILR on 17 May 2018 so should be able to apply on 17 May 2019

[CR001]

would it affect the decision on her ILR if I applied for citizenship while waiting for her ILR decision in case we used the standard service and not the super priority?

No.

[Hossny99]

would it affect the decision on her ILR if I applied for citizenship while waiting for her ILR decision in case we used the standard service and not the super priority?

No.

Thanks.

Any comments on the link I shared previously about other cases?

[CR001]

Not sure how you expect anyone to comment on another persons case when we would have no knowledge of their case.

The point is, as long as you apply for a ILR before the visa expires, you are protected by Section 3C of the immigration rules, meaning the visa conditions continue even if the visa expires while HO is processing the application.

I don't know what else in terms of 'its ok' you are actually looking for? You have been given the same advice to all your queries and we have had MANY members with the same scenario who were successful with ILR.

You are perhaps overthinking this.

[Hossny99]

Not sure how you expect anyone to comment on another persons case when we would have no knowledge of their case.

The point is, as long as you apply for a ILR before the visa expires, you are protected by Section 3C of the immigration rules, meaning the visa conditions continue even if the visa expires while HO is processing the application.

I don't know what else in terms of 'its ok' you are actually looking for? You have been given the same advice to all your queries and we have had MANY members with the same scenario who were successful with ILR.

You are perhaps overthinking this.

Thanks and apologies, I guess because there’s a lot at stake I’m overthinking it.

I’ll update the post with the final results

[Hossny99]

Hi guys,

I’ve been given a different advice from an immigration company which I thought I’d share with you and ask for your opinion/guidance.

In short they say my wife’s 5 year qualifying period starts from entering the UK not from first visa issued. That’s because she must have been living with me during the full 5 years, referring to section 319E of immigration rules. Below is their reply to me when I referred to the guidance “ calculating continuous period in UK”:

“Please note that the caseworker will take this section of the relevant guidance into consideration if the main applicant and the PBS Dependant Spouse qualify for ILR at the same time.

For PBS Dependant Spouse ILR (separate application from the main applicant) the spouse must also provide evidence of spending 5 years in the UK with the main applicant. See below the relevant section of the current immigration rules - I have highlighted the relevant paragraph.

319E. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain as the Partner of a Relevant Points Based System Migrant or Appendix W Worker, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant or Appendix W Worker; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant or Appendix W Worker, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant or Appendix W Worker.
(c) The applicant must have, or have last been granted, leave as the partner of the Relevant Points Based System Migrant or Appendix W Worker who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant or Appendix W Worker; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant or Appendix W Worker, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant or Appendix W Worker.
(d) The applicant and the Relevant Points Based System Migrant or Appendix W Worker must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the applicable specified period in either (i) or (ii), subject to (iii):
(i) If the applicant was granted leave as:
(a) the Partner of that Relevant Points Based System Migrant, or
(b) the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules
under the Rules in place before 9 July 2012, and since then has had continuous leave as the Partner of that Relevant Points based System Migrant or Appendix W Worker, the specified period is 2 years
(ii) If (i) does not apply, the specified period is a continuous period of 5 years, during which the applicant must:
(a) have been in a relationship with the same Relevant Points Based System Migrant or Appendix W Worker for this entire period,
(b) have spent the most recent part of the 5 year period with leave as the Partner of that Relevant Points Based System Migrant or Appendix W Worker, and during that part of the period have met all of the requirements of paragraph 319C(a) to (e),
(c) have spent the remainder of the 5 year period, where applicable, with leave as the spouse or civil partner, unmarried or same-sex partner of that person at a time when that person had leave under another category of these Rules, and
(d) not have been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:
(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.
”

Would appreciate some thoughts here, thx

[CR001]

You really are overthinking this and confusing yourself unnecessarily. There were rule changes for PBS Dependents in January 2018!!!

uk-tier-1-general-dependent-visas/ilr-t ... l#p1583820

Note the absence (pun intended) of family members in Categories covered by this guidance.

****UPDATE**** PBS dependant category is now covered under the Indefinite leave to remain: calculating continuous period in UK guidance!

This means that PBS dependants may now also take advantage of the following:

Period between the issue of entry clearance and entering the UK

The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the continuous 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.

If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation.

[Hossny99]

correct, but in the same thread you're referring to Vinny wrote:

Post by vinny » Sun Feb 04, 2018 12:37 pm

However, asam kindly pointed out a problem with:
319E wrote:
(d) The applicant and the Relevant Points Based System Migrant must have been living together in the UK in a marriage or civil partnership, or in a relationship similar to marriage or civil partnership, for at least the applicable specified period in either (i) or (ii), subject to (iii):....
So, it may be safer to consider the start date of the qualifying period for ILR to be the date of entry.

I appreciate Vinny mentioned some members have had success but as you previously said not all cases are similar.

So question now: how does the above statement from 39E (d) apply along with the guidance to calculate the qualifying period?

Before I got the other contradicting advice I was happy to apply based on your/other members' advice, but I guess now we have two opposite opinions from qualified people, and I can only hope you could help clarifying!

[CR001]

I have no further comments or advice to make/give. Many applicants have had success in similar circumstances to what you describe.

It is your choice what you choose to do. All we have done is advise what the rules state, the 28 day concession, the visa issue date changes in January 2018 and the very same rules that HO is well aware of.

[Hossny99]

I have no further comments or advice to make/give. Many applicants have had success in similar circumstances to what you describe.

It is your choice what you choose to do. All we have done is advise what the rules state, the 28 day concession, the visa issue date changes in January 2018 and the very same rules that HO is well aware of.

Ok, could you just tell me what options would my wife have if the ILR is refused based on 319E?
1- can we appeal? and chances of success?
2- can we apply for PBS extension after refusal?
3- Must she leave the UK then start the whole process again of 5 years?

Also as a safer option, can we apply for PBS extension then apply for ILR before decision during section 3C leave? 3C (4) says variation not possible while 3C (5) says amending is possible, not sure which one applies!

[aman90]

Ok, could you just tell me what options would my wife have if the ILR is refused based on 319E?
1- can we appeal? and chances of success?
2- can we apply for PBS extension after refusal?
3- Must she leave the UK then start the whole process again of 5 years?


Also as a safer option, can we apply for PBS extension then apply for ILR before decision during section 3C leave? 3C (4) says variation not possible while 3C (5) says amending is possible, not sure which one applies!

Yes.. it can be varied easily and you may get the IHS surcharge back.
But if money is not an issue. Apply for PBS extension on super priority and then apply for ILR
when within 28 days of Entry date for your peace of mind.

[Hossny99]

Can someone please advise on the below:

could you just tell me what options would my wife have if the ILR is refused based on 319E?
1- can we appeal? and chances of success?
2- can we apply for PBS extension after refusal?
3- Must she leave the UK then start the whole process again of 5 years?

[CR001]

You really are completely overthinking and confusing yourself.

1. There are no appeal rights for PBS routes.

2. Unlikely she will be refused as she will apply within the 28 days period and have a valid visa at the time of applying. Surprisingly, HO does actually know the rules and won't refuse her because she applied within the 28 days concession before reaching the 5 year period from date of visa start date!!

3. No. You are being paranoid.

We have linked the rules for you yet you are choosing to ignore that.