1 day short of ILR- date of variation question
Posted: Thu Nov 22, 2018 4:37 pm
Hi all,
My husband is short literally 1 day on his Tier 2 dependent visa to apply for ILR (thank you Home Office)- even when using the 28 day rule. As he needs to travel for work, a postal application is not an option and we will need to apply for a Tier 2 extension with a variation to ILR to cover the 1 day gap.
My question is around what is the earliest date that he can vary the application. I am going under the assumption that with the new system, the date of application is the date of online submission.
The relevant dates are:
Date of initial visa issue: 12 February 2014
Date of entry to UK: 15 February 2014
5 year qualifying period ends: 12 February 2019 (from visa issue)
Date of eligibility for ILR (using 28 day rule): 15 January 2019
Date of visa expiry: 14 January 2019
The Home office states in the guidance for varying applications that "where an application is varied, the application date remains the date of the original application". This becomes an issue for varying the application because it then seems to me as if the 28 day period cannot be used to calculate
the qualifying period. This is because the guidance on the qualifying period states:
"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"
So, in our case, if we applied for Tier 2 extension on 13 January 2019 and then varied the application on 15 January 2019 and the application was decided the same day, my husband would not be eligible under any of the three categories above, since the calculated qualifying periods would be:
• 5 years prior to the date of application - this would be 13 January 2014, before the initial visa issue
• 5 years prior to the date of decision - this would be 15 January 2014, again before the initial visa issue
• 5 years prior to any date up to 28 days after the date of application - this would be 10 February 2014 (using 13 January 2019 as the application date), once again before the initial visa issue
It seems from this that our only option is to wait until 12 February 2019 to vary the application and forget about the 28 day period, so that the decision date falls a full 5 years after the initial visa issue date. Is this correct thinking, or have I misunderstood the guidance?
Thanks for any help you can give.
My husband is short literally 1 day on his Tier 2 dependent visa to apply for ILR (thank you Home Office)- even when using the 28 day rule. As he needs to travel for work, a postal application is not an option and we will need to apply for a Tier 2 extension with a variation to ILR to cover the 1 day gap.
My question is around what is the earliest date that he can vary the application. I am going under the assumption that with the new system, the date of application is the date of online submission.
The relevant dates are:
Date of initial visa issue: 12 February 2014
Date of entry to UK: 15 February 2014
5 year qualifying period ends: 12 February 2019 (from visa issue)
Date of eligibility for ILR (using 28 day rule): 15 January 2019
Date of visa expiry: 14 January 2019
The Home office states in the guidance for varying applications that "where an application is varied, the application date remains the date of the original application". This becomes an issue for varying the application because it then seems to me as if the 28 day period cannot be used to calculate
the qualifying period. This is because the guidance on the qualifying period states:
"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"
So, in our case, if we applied for Tier 2 extension on 13 January 2019 and then varied the application on 15 January 2019 and the application was decided the same day, my husband would not be eligible under any of the three categories above, since the calculated qualifying periods would be:
• 5 years prior to the date of application - this would be 13 January 2014, before the initial visa issue
• 5 years prior to the date of decision - this would be 15 January 2014, again before the initial visa issue
• 5 years prior to any date up to 28 days after the date of application - this would be 10 February 2014 (using 13 January 2019 as the application date), once again before the initial visa issue
It seems from this that our only option is to wait until 12 February 2019 to vary the application and forget about the 28 day period, so that the decision date falls a full 5 years after the initial visa issue date. Is this correct thinking, or have I misunderstood the guidance?
Thanks for any help you can give.