Does the 5 yr period slide forward during 3C?

[wpilr_nov12]

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She said on the phone that because I left the country for 90 days after being in the UK for 10 days, that "didn't look good". ...Wish me luck on Tier 1 renewal!!

In this case, if the applicant had made a postal application say a week before visa expiry, thus triggering 3C on day 8, and with subsequent UKBA delay.. Would the 90 day absence after 10 days of initial UK stay, have slipped off the 5 yr window? Does the 5 yr period slide forward during 3C?

Any expert opinion would be greatly appreciated.

[cs95tdg]

I'm not sure I totally understand the question raised here. I.e. what do you mean by "Would the 90 day absence after 10 days of initial UK stay, have slipped off the 5 yr window"?

Section 3C protects an applicant from becoming an overstayer (unlawful) in the event the UKBA does not make a decision on an application before his/her current leave to remain expires, so long as the extension application is made in-time before the applicants current leave to remain expires.

So Section 3C will be in effect until the UKBA makes a decision. If the application is then successful, the applicant would not have spent any time in the UK in an unlawful capacity. I.e. which is a requirement for ILR.

[wpilr_nov12]

Question is : can the period covered by 3C be used to make up 5 years? Or does the 5 yr counting stops at the point of application?

Eg, If I apply by post on Jan 14, visa expires Jan 16, but my 5 yr qualifying period ends on Jan 20. Purely hypothetical. In this scenario, I am short of 4 days for 5 yr completion, (and say I am not covered by the 90 day allowance at initial entry). But by the time my case is reviewed, based on current stats, 3C will have kicked in. Can the 3C days make up for the shortfall?

[cs95tdg]

Question is : can the period covered by 3C be used to make up 5 years? Or does the 5 yr counting stops at the point of application?

Eg, If I apply by post on Jan 14, visa expires Jan 16, but my 5 yr qualifying period ends on Jan 20. Purely hypothetical. In this scenario, I am short of 4 days for 5 yr completion, (and say I am not covered by the 90 day allowance at initial entry). But by the time my case is reviewed, based on current stats, 3C will have kicked in. Can the 3C days make up for the shortfall?

To apply for ILR as a economic migrant, you need to have sufficient leave to remain to cover the entire 5 year residency period, irrespective of when you submit your application and when a decision is made by the UKBA.

If I have understood your example above correctly, the application would fail because you have not met the residency requirement (i.e. have a shortfall of 4 days). It has nothing to do with the Section 3C rule.

On the otherhand
1) If you did not have a shortfall to cover your 5 year residency AND
2) If you applied before your current leave to remain expired AND
3) If the UKBA did not make a decision before your current leave to remain expired
Then you would be covered by the Section 3C rule for the period from your current leave to remain expiry date to the UKBA decision date.

[zahid.ali.anwar]

If you apply by post, by the time your case is decided, if you have completed 5 years residency requirment, your ILR will be granted. Provided you have fulfilled all other requirments of your application.