Inquiry Regarding Earliest ILR Eligibility Under the BN(O) Hong Kong Route

[ChiLau01]

I am planning to apply for ILR under British Nationals (Overseas) Hong Kong visa. Under the BNO (Hong Kong) route, ILR requires 5 years’ continuous residence in the UK, with no more than 180 days outside the UK in any 12-month period. I am writing to inquire about the earliest date of ILR eligibility in my particular case.

My timeline:

Visa granted: 5 September 2021

First entry to the UK: 21 February 2022
(This represents a gap of 169 days between visa start date and first arrival.)

Additional absence: 17 days outside the UK in July 2022
(Total absences in the 12‑month period beginning 5 September 2021 = 184 days)

I have remained in the UK continuously since July 2022.

I have the following 4 queries relating to the earliest date of ILR eligibility in my case:

1. Given the significant gap between my visa grant date and my first arrival in the UK, which date should be treated as the start of the 5‑year continuous residence period: 5 September 2021 (Visa start from date) or 21 February 2022 (Date of first entry into the UK)?

2. If the qualifying period is counted from my first entry on 21 February 2022, my current BN(O) visa (expiring September 2026) will not cover the full 5‑year period. In this scenario, would I be required to extend my visa before applying for ILR?

3. If the 5 year period runs from the visa grant date, would the cumulative absence of 184 days over the first 12 month following visa start date break the continuous residence? In which case, when does the 5-year qualifying period clock restart?

4. I understand that UKVI count back 5 years from one of the following 3 different dates to calculate qualifying period, whichever is most benefit for my case:
a) The date of application
b) The date of decision
c) any date up to 28 days after the date of application
Would the time between visa expiry and the decision on the pending ILR application count as qualifying residence?

For example, if I submit my ILR application on 21 August 2026 (15 days before visa expiry), would I be able to rely on a later qualifying‑period calculation date—such as 18 September 2026 (28 days after the application date)—to partially make up for the 184‑day absence in my first year?

I would be grateful for any clarification you can provide regarding these points so that I may plan my application appropriately.

[zimba]

1,2. The gap will be counted as part of your absence from the UK

3. It technically does but you should seek for discretion in my view. You are barely above the limit.

Note that there is no point for a clock set/reset. The requirement is that you should not have more than 180 days in any 12 months period, as long as you satisfy this you satisfy the requirement. There is no clock start, end, etc. In that case, you have to move the ILR decision date further and further until you satisfy the requirement

4. Yes, time spent under section 3C is counted as lawful residence

READ --> All you need to know about applying early, the application date, 28-day concession and more

[ChiLau01]

Many thanks for your reply. I have a few follow-up questions.

1. I would like to note that I do not have any extenuating circumstances that would qualify for an exemption regarding my absences during the first year of residence. In this situation, what potential grounds might be available to request discretion?

2. I have read past ILR-related appeals. Specifically, I refer to the 2024 decision in case UI-2024-000788 (link: https://tribunalsdecisions.service.gov. ... onsequence.) , in which the tribunal held that Section 3C leave does not count toward the 10‑year lawful residence requirement if the application or appeal is ultimately refused. Although my circumstances differ from that case—not least the route to ILR—I am concerned about whether time spent under Section 3C leave while my ILR application is pending would count toward continuous residence. Can Section 3C leave or the “count-back flexibility” count towards continuous residence?

3. As it appears that I will not meet the 5‑year qualifying period by the end of my current BN(O) visa, should I instead apply for a visa extension? If so, would I be eligible for a refund of the Immigration Health Surcharge for any unused portion of the extended visa, given that I would only require an additional four days beyond my current visa expiry date to complete the qualifying period?

Again, any help and clarification you can provide is greatly appreciated.

[zimba]

1. Just ask for it and say that due to your circumstances you could not move to the UK after your visa was issued

2. How is this case and ruling even remotely relevant here ?? How did you arrive at such a conclusion regarding section 3C ??
Furthermore, the ruling is talking about a very specific scenario and also paragraph 276B that no longer exists. The provisions of the appendix continuous residence are clear on section 3C :

Time spent on 3C or 3D leave

Time spent with leave extended by law under section 3C or 3D of the Immigration
Act 1971 counts as time in the UK with permission on the relevant route for the
purpose of calculating continuous residence (whether pending a decision on an
application on that route or after an appeal or administrative review). Where there is
a break in the continuous residence period during which the person does not have
permission to stay, but where 3C leave is later resurrected, you should follow the
guidance in Leave extended by section 3C (and leave extended by 3D in transitional cases)
on how to treat the gap in lawful residence. Additionally, see the Overstaying exceptions section of this guidance.

Where a person makes an in-time application, which is decided before their leave
expires, the decision (as set out in section 3C(1)(c)) relates to the casework decision
and not the conclusion of any subsequent administrative review or appeal.

Where a long residence application is submitted by a person with an outstanding
appeal, that application must be accepted as a human rights claim. If a decision is
reached before the appeal hearing the decision can be considered as part of the
appeal. If the decision is not made before the appeal hearing, the application can be
considered as part of the appeal. In both cases, the application is considered to have
been made in-time and 3C will continue until the applicant’s appeal rights are
exhausted. Where an application is submitted whilst 3C is extending leave, pending
an appeal, time after the applicant’s appeal rights are exhausted is not classed as
lawful presence.

https://assets.publishing.service.gov.u ... idence.pdf

3. You do NOT need an extension. Apply early and delay the biometrics. This advice is basic common knowledge.

[zxyzhgp]

1. Just ask for it and say that due to your circumstances you could not move to the UK after your visa was issued

2. How is this case and ruling even remotely relevant here ?? How did you arrive at such a conclusion regarding section 3C ??
Furthermore, the ruling is talking about a very specific scenario and also paragraph 276B that no longer exists. The provisions of the appendix continuous residence are clear on section 3C :

Time spent on 3C or 3D leave

Time spent with leave extended by law under section 3C or 3D of the Immigration
Act 1971 counts as time in the UK with permission on the relevant route for the
purpose of calculating continuous residence (whether pending a decision on an
application on that route or after an appeal or administrative review). Where there is
a break in the continuous residence period during which the person does not have
permission to stay, but where 3C leave is later resurrected, you should follow the
guidance in Leave extended by section 3C (and leave extended by 3D in transitional cases)
on how to treat the gap in lawful residence. Additionally, see the Overstaying exceptions section of this guidance.

Where a person makes an in-time application, which is decided before their leave
expires, the decision (as set out in section 3C(1)(c)) relates to the casework decision
and not the conclusion of any subsequent administrative review or appeal.

Where a long residence application is submitted by a person with an outstanding
appeal, that application must be accepted as a human rights claim. If a decision is
reached before the appeal hearing the decision can be considered as part of the
appeal. If the decision is not made before the appeal hearing, the application can be
considered as part of the appeal. In both cases, the application is considered to have
been made in-time and 3C will continue until the applicant’s appeal rights are
exhausted. Where an application is submitted whilst 3C is extending leave, pending
an appeal, time after the applicant’s appeal rights are exhausted is not classed as
lawful presence.

https://assets.publishing.service.gov.u ... idence.pdf

3. You do NOT need an extension. Apply early and delay the biometrics. This advice is basic common knowledge.

OP probably got that info from some HK youtubers and reddit on UK visa
People there (even some top contributors) do not like using "date of decision" for ILR

[zimba]

It is all about understanding and following the rules, not what you may like or not. When it comes to immigration matters, you should NOT listen to people who refuse to follow the rules and official guides.

[ChiLau01]

Dear Zimba and zxyzhgp,

Thank you both for your responses and for the guidance you have provided so far.

From the research I have done, I have noted that some sources do suggest that the “date of decision” may be used when counting back five years to assess the qualifying period. However, I still have some reservations about relying on a later date for the following reasons:

1. The Home Office continuous residence guidance makes clear that an absence of more than 180 days in any 12‑month period breaks continuous residence. As I do not have any permitted exception for my 184‑day absence during the first 12 months of my visa, this appears to constitute a break. I believe Zimba has confirmed this point. Therefore, I am effectively left "at the mercy" of the caseworker's discretion to consider making an exception in my favour.

2. I am aware that using date of decision will be favourable for my case. However, my understanding is that Section 3C leave can only contribute to the qualifying residence period if the five‑year requirement has already been completed by the relevant calculation date — which, in my case, would be the expiry date of my BN(O) visa: 5 September 2026.

3. If both Section 3C leave and the “date of decision” could be used together to calculate the five-year period, would not this give rise to situations where applicants take advantage of the section 3C to shorten the 5 year period? I am not sure if this fits the intention or the "spirit" of the law, even if it is allowed by the letter of the law.

Please could you clarify whether my reservations are valid?

I acknowledge that parts of my understanding are based on non-expert sources, and I appreciate your patience with any misinterpretations or misconceptions on my part. Thank you again for your time and assistance.

[zxyzhgp]

Dear Zimba and zxyzhgp,

Thank you both for your responses and for the guidance you have provided so far.

From the research I have done, I have noted that some sources do suggest that the “date of decision” may be used when counting back five years to assess the qualifying period. However, I still have some reservations about relying on a later date for the following reasons:

1. The Home Office continuous residence guidance makes clear that an absence of more than 180 days in any 12‑month period breaks continuous residence. As I do not have any permitted exception for my 184‑day absence during the first 12 months of my visa, this appears to constitute a break. I believe Zimba has confirmed this point. Therefore, I am effectively left "at the mercy" of the caseworker's discretion to consider making an exception in my favour.

2. I am aware that using date of decision will be favourable for my case. However, my understanding is that Section 3C leave can only contribute to the qualifying residence period if the five‑year requirement has already been completed by the relevant calculation date — which, in my case, would be the expiry date of my BN(O) visa: 5 September 2026.

3. If both Section 3C leave and the “date of decision” could be used together to calculate the five-year period, would not this give rise to situations where applicants take advantage of the section 3C to shorten the 5 year period? I am not sure if this fits the intention or the "spirit" of the law, even if it is allowed by the letter of the law.

Please could you clarify whether my reservations are valid?

I acknowledge that parts of my understanding are based on non-expert sources, and I appreciate your patience with any misinterpretations or misconceptions on my part. Thank you again for your time and assistance.

There are many successful cases mentioned in this forum about using date of decision + delay biometric appointment (thereby avoiding extra visa extension)

Of course one should take them as anecdotes and those cases are not for BNO ILR route

I am from HK as well (got UK citizenship recently) so from my experience, none of BNO holders I know will use that method as lawyers told them to do visa extension first (probably because if the application fails, they still have valid leave).

[zimba]

There is a 28-day concession that allows you to be granted ILR early. I explained this extensively in the link I posted above. This is nothing unlawful here. The law allows the home office to set immigration rules and enforce them as they see fit.

Also, Section 3C is not some magical provision. It literally extends your visa (i.e. lawful residence) to prevent you from becoming an overstayer. That is like as if you have valid leave. Benefiting from it is not some shady thing. These are all very well understood and applied for years