What type of ILR and when to apply?

[HelpingMyHusband]

Dear all,

As the username suggests, I'm here to help my husband. I am a British citizen from birth. He is a Libyan national, currently on his second grant of DL. We have a daughter (1 year old), a mortgaged house, both have stable jobs and in further study. He is training as a plumber, while working as a sous-chef. I am a trainee optician (working full-time as a trainee while studying).

IMMIGRATION TIMELINE:
Husband entered the UK illegally on 11 February 2011
Application made for asylum around this time (due to tensions in Libya/Arab Spring).
Temporary admission reporting began around this time (can we ask FOA from the Home Office to clarify the exact date for the ILR Long Residence 10 year route)
Asylum rejected circa. 2012
Met me circa. January 2013
Further Submissions sent 2.10.13
Married 24.2.14
Husband received his first grant of DLR (2.5 years) for family life on 17.6.14.
He submitted an in-time application for a FLR(M) visa on 12.12.16.
(Immigration advisor suggested we could switch categories as with marriage and previous LR granted he was eligible).
Daughter born 11.11.17
Instead of FLR(M), another DLR (2.5 years) for family life was granted on 22.3.19.
(Latest immigration advisor says this is because DL is granted outside the rules and husband was never eligible/will never be eligible to switch to a different category while on DLR route. Is that right?)

Which of the following routes is valid for ILR:
6 year DL route to ILR:
First DL grant was on 17.6.14 – therefore eligible for ILR DL by 17.6.2020?
(Our latest decision letter says that DL is granted after 6 years and we were asked to pay the IHS for a 3 year (36 month) visa just before the decision was made by the caseworker - although we were granted a 2.5 year visa. This

10 year DL route to ILR:
First DL grant 17.6.14 – eligible for ILR DL by 17.6.2024?
(This is the route that from my research seems the most probable)

10 Long Residence route to ILR:
Temporary admission from February 2011 - eligible for ILR LR(Set) by February 2021?
(Does DL granted outside the Immig Rules count as lawful leave for the purposes of the LR(Set) application?)


I've sent special delivery signed for letters to the Home Office caseworker for clarification on all these above points but not received anything back. Which is pretty bad when you think of the £1000s our family could lose if we make the wrong application/submit at the wrong time!

Many thanks for any help here.

[zimba]

ILR under DLR is possible after 6 years.

[HelpingMyHusband]

ILR under DLR is possible after 6 years.

Hi Zumba, thanks for you response.

In my husband's case then, given the immigration history outlined above, is he able to apply for his ILR DL by 17.6.2020?

We've just had a lot of conflicting advice from all sources. The HO themselves said in a letter from 2014 when he got his first DL that he was on the 10 year route, now for the second DL grant they say he's eligible after 6 years? But they only gave him a 2.5 year visa just now (22.3. 2019 - 22.9.2021)?? I understood for the 6 year route you got 2x 3year visas?

Does the EC3(?) time spent in between submitting an application and waiting for a decision (in our case from 12.12.16-22.3.19, almost 2.5 years!!) count towards the qualifying period of 6 years in this case?

I read (worryingly) elsewhere on these boards that if you are rejected a visa (i.e. Husband wrongly applied for FLRM despite being advised he could by immigration solicitor but got DL instead) that his inmigration qualifying period is set to zero again? So would husband's 6 year route start now from 22.3.19 or will the HO recognise and accept the DL he was granted from before?

If the clock has been reset to zero from this year (so not eligible until 2025!!) then isn't the ILR LR(SET) a faster way to achieve ILR (taking into account his temporary admission which began in 2011 and was following by a grant of DL leave?)

I'm so confused in all these points and would appreciate the help to untangle them and make sense of it all. Thanks

[HelpingMyHusband]

Sorry to repost but can anyone untangle the above for me? As far as I was aware the 6 year DL route was for DL grants before 12 June 2012?

[zimba]

I was clear. If he has been under DLR, then 6 years will be enough. However if he was granted leave under FLR(FP), then he is under the 10 year route. This is what you need to figure out maybe by filing an SAR request. Long residence will not be possible until 2024

[HelpingMyHusband]

Thanks for your response Zimba, and please bear with me here. I just need a bit more clarification and reassurance.

I understood that there are two type of DLR routes, one with 6 year route to ILR, the other is a 10 year route to ILR.

It's 2x 3 year visas for the 6 year route and 4x 2.5 year visas on the 10 year route.

The most recent decision letter from HO quote clearly states that he is eligible after 6 year DLR however both now (and before in 2014) he has only given 2.5 year visas whichever leads time to be concerned there is a mix up somewhere with the HO... in addition a letter accompanying the first DL grant said he was on the 10 year route but this has been contradicted with the latest decision letter on the 2nd DL grant saying he is eligible after 6 years DL... can you see the confusion?

The second part to my question was with DL can my husband use the visas he has received plus the 3c time between applications to put as his qualifying time for ILR?

The third part was, in applying wrong for FLRM when he should have applied for an extension on his first DL, has his qualifying time for ILR been reset to zero on the 6 year/10 year route?

Again it's these points that I sought the clarification on. I really really just want to make sure the HO and my husband are on the same page here and that we don't make a mistake again when his current visa runs out. F

From what you are saying, I think you are saying my husband is eligible for IRL by 17.6.2020 (counting 6 years from when his first DL was issued and including the 3c time in between waiting for a decision. Is that correct?

Thanks again for your patience.

[HelpingMyHusband]

I was clear. If he has been under DLR, then 6 years will be enough. However if he was granted leave under FLR(FP), then he is under the 10 year route. This is what you need to figure out maybe by filing an SAR request. Long residence will not be possible until 2024

Also on the Long Residence point, can't time spent on temporary admission be included in the 10 years if subsequently the applicant is given qualifying leave to remain? I can't find the exact rule in the immigration book right now as I'm replying in my old mobile but I'm sure it's there.

[zimba]

I understood that there are two type of DLR routes, one with 6 year route to ILR, the other is a 10 year route to ILR.

No. There is DLR route granted for 6 years (leave granted outside the immigration rules). This is what granted to failed asylum seekers in general. Then there is 5 year family route FLR(M) and there is the 10 year family route FLR(FP).

Long residence is granted if you spent 10 lawful and continuous years in the UK under ANY route.
If you applied in-time between visas, time spent waiting under section 3C counts towards qualifying period of ILR.

From what you are saying, I think you are saying my husband is eligible for IRL by 17.6.2020 (counting 6 years from when his first DL was issued and including the 3c time in between waiting for a decision. Is that correct?

Yes, assuming that he held DLR visa for 6 years (NOT FLR). If he held FLR and then changed to DLR, then he needs at least 6 years under DLR for ILR. If you are NOT sure, I suggested to apply for an SAR to get a clear picture. I cannot advise you if you do not know what visa route he was on since 2014.

[HelpingMyHusband]

Thanks for your clarifications!

Well I'm definitely sure his first visa was DLR outside of the immigration rules as it states this clearly on the first decision letter. That visa however only lasted 2.5 years (17.6.14-12.12.16.)

This second DLR visa also says granted outside immigration rules but it is also only for 2.5 years. (22.3.19-22.9.21)

How is my husband supposed to accrue 6 years on 2x 2.5 year visas? Unless he can use the c3 time in between.

Should we have got 2x 3year visas ? Was that a mistake on HO part?

[zimba]

Oh I can see now where I made the mistake The 6 year DLR to ILR is only possible when your are granted DLR before July 2012. After that you need 120 months for ILR which puts him on a 10 year path. I suggest to look for the long residence route instead which could be possible in 2024.

[HelpingMyHusband]

This is what I thought... thanks for clarifying though Zimba.

So the HO was wrong in their letters saying he is eligible after 6 years on his DL for IRL, and also wrong to charge him IHS for a 36 month (3 year visa) so we should get the partial refund for that, right?

Will this 10 year immigration clock for IRL on the DL route be reset to zero because he made the wrong FLR(M) application instead of FLR (DL) on 12.12.16? Does the 10 years start again from 22.3.19 or will they allow his DLR granted in 17.4.14 to be counter in the total?

Also I thought with the 10 year long residence IRL you could use the years spent on temporary admission under IS96 as years towards the requirement. So as he began his temporary admission on 11th February 2011, he should technically qualify for IRL from 11th February 2021?

The only problem is with his temporary reporting he technically absconded from January 2012 to November 2013, so I'm worried this will show up as an adverse immigration history if we decided to apply for his long residence IRL in 2021... however could we use section 322/3 (I think it is?) from general grounds of refusal which states that breaching the rules will be allowed if a further grant of leave was given despite knowledge of the breach?

What are your thoughts? Thanks for your time

[zimba]

So the HO was wrong in their letters saying he is eligible after 6 years on his DL for IRL, and also wrong to charge him IHS for a 36 month (3 year visa) so we should get the partial refund for that, right?

Assuming he applied after July 2012 for DLR, then yes. HO clearly granted 30 months of DLR

Will this 10 year immigration clock for IRL on the DL route be reset to zero because he made the wrong FLR(M) application instead of FLR (DL) on 12.12.16? Does the 10 years start again from 22.3.19 or will they allow his DLR granted in 17.4.14 to be counter in the total?

You said his FLR(M) was in-time. Did he vary that to DLR or did UKVI grant him DLR later ? If there was no refusal, the continuous period continued

Also I thought with the 10 year long residence IRL you could use the years spent on temporary admission under IS96 as years towards the requirement. So as he began his temporary admission on 11th February 2011, he should technically qualify for IRL from 11th February 2021
The only problem is with his temporary reporting he technically absconded from January 2012 to November 2013, so I'm worried this will show up as an adverse immigration history if we decided to apply for his long residence IRL in 2021... however could we use section 322/3 (I think it is?) from general grounds of refusal which states that breaching the rules will be allowed if a further grant of leave was given despite knowledge of the breach??

Temporary admission only counts if subsequently his immigration application was granted. However you said his asylum was refused in 2012 and he applied for a new application in 2013. That will break the continuity

[HelpingMyHusband]

Thanks for your clarifications, Zimba!!

Ok so final question: does the date when he submitted his further submissions (2.10.13) following the rejection of his asylum claim count as the start date for his 10 year IRL?

From the 2.10.13 - 17.6.14 he was still in temporary admission, but as his claim for further DL was accepted following the further submissions, does that validate that time to be used in the qualifying 10 year period?

Essentially I'm just trying to pinpoint down the earliest time we can apply for his IRL.

Thanks in advance for your response.

[HelpingMyHusband]

P.S. regarding the immigration clock question, basically the wording given in the decision letter for the 2nd DL grant was that husband was not eligible for FLR(M) because his previous leave was DL (outside the rules), so they could only offer further DL. So they refused FLR(M) but granted more DL instead. We did not apply to vary the FLR(M) to DL while waiting for decision on FLR(M), nor were we advised to do so by our solicitors.

So I guess we have been let down by our solicitor if you're saying their actions will have led to the immigration clock being reset to zero...

Of course with the 10 year route (long residence) it doesn't matter if the DL grants are broken in between - you can still add the time together for them towards the qualifying period, right?

[zimba]

Ok so final question: does the date when he submitted his further submissions (2.10.13) following the rejection of his asylum claim count as the start date for his 10 year IRL? From the 2.10.13 - 17.6.14 he was still in temporary admission, but as his claim for further DL was accepted following the further submissions, does that validate that time to be used in the qualifying 10 year period?

Temporary admission is granted for 6 months to enable a lawful new application. I assume that was granted to him and then he applied for asylum which was eventually refused. This will lead to termination of section 3C and lawful stay. Now simply applying for an application again does not give you lawful stay anymore and you remain an overstayer. As I suggested before, an SAR request must be done to see what UKVI has on his file to correctly assess the earliest time.

P.S. regarding the immigration clock question, basically the wording given in the decision letter for the 2nd DL grant was that husband was not eligible for FLR(M) because his previous leave was DL (outside the rules), so they could only offer further DL. So they refused FLR(M) but granted more DL instead. We did not apply to vary the FLR(M) to DL while waiting for decision on FLR(M), nor were we advised to do so by our solicitors.

So I guess we have been let down by our solicitor if you're saying their actions will have led to the immigration clock being reset to zero...

Of course with the 10 year route (long residence) it doesn't matter if the DL grants are broken in between - you can still add the time together for them towards the qualifying period, right?

I already covered the answer. If there was no refusal, his continuous period continued. The fact that UKVI granted DLR instead of FLR is not relevant. He maintained lawful stay throughout.

[HelpingMyHusband]

Ok so we'll definitely look into having a SAR done. would the "basic" one as advertised on the gov website be enough or do we need the "detailed" one to get the full immigration record? What are we looking for exactly on the record when it comes to pinpointing the date from which we can calculate his continuous lawful stay for the 10 year long residence route? Sorry if that seems like a silly question but I'm still not 100% sure on what the HO would class as overstaying and whether he was overstaying when his further submissions application was submitted.

Ok so despite making the wrong application for leave to remain (FLRM instead of FLRDL) the fact that DL was granted means that the continuity is unbroken?
I have the exact wording here from the two letters (one prior the decision dated 11.3.19) and on the decision letter itself (dated 22.3.19)
Letter 1 states: "thank you for your attempted application for leave to remain in the United Kingdom. As you were previously granted discretionary leave (DL), your application is being considered as an extension of DL. If your circumstances have not changed you would be entitled to be granted a further 3 years (36 months) discretionary leave. You are required to make an additional health care payment of £100 to cover the extra leave that would be granted for your DL application (36 months rather than 30 months)."
Letter 2: "Grant of Discretionary Leave to Remain. I am writing to inform you that, although you do not qualify for leave to remain in the United Kingdom under the immigration rules, it has nonetheless been decided that discretion should be exercised in your favour. You have therefore been granted Discretionary Leave to remain until 22 September 2020 on the basis of your family life. Applying for an extension: a person will not become eligible for settlement until they have completed 6 years of Discretionary Leave".

Two issues I've noticed just now. The decision letter says until 22 September 2020, but the BRP card says until September 2021 - is that a discrepancy that needs to be flagged to the HO?

Secondly I kept the wording regarding the 6 year DL route in both letters to show you the source of confusion generated by the HO stating he was entitled to a 3 year visa / 6 year IRL came from. If the HO made a mistake here and we had applied for Settlement after 6 years in good faith that what they said was true, would we have been penalised, had our application rejected and money in fees lost?

Thanks for sticking with me and my questions!!

[zimba]

Ok so we'll definitely look into having a SAR done. would the "basic" one as advertised on the gov website be enough or do we need the "detailed" one to get the full immigration record? What are we looking for exactly on the record when it comes to pinpointing the date from which we can calculate his continuous lawful stay for the 10 year long residence route? Sorry if that seems like a silly question but I'm still not 100% sure on what the HO would class as overstaying and whether he was overstaying when his further submissions application was submitted.

I suggest to get as much detail as possible. SAR shows everything UKVI has on his immigration file. This makes it easy to assess if he had lawful stay or not after his asylum claim was refused. I repeat again that further submissions do not make someone a lawful resident unless you are protected under section 3C/3D of the immigration act 1971.
See: https://assets.publishing.service.gov.u ... 9.0ext.pdf

Ok so despite making the wrong application for leave to remain (FLRM instead of FLRDL) the fact that DL was granted means that the continuity is unbroken?

Yes

Two issues I've noticed just now. The decision letter says until 22 September 2020, but the BRP card says until September 2021 - is that a discrepancy that needs to be flagged to the HO?

No. BRP date is the correct date.

Secondly I kept the wording regarding the 6 year DL route in both letters to show you the source of confusion generated by the HO stating he was entitled to a 3 year visa / 6 year IRL came from. If the HO made a mistake here and we had applied for Settlement after 6 years in good faith that what they said was true, would we have been penalised, had our application rejected and money in fees lost?

You are bound by immigration rules not the content of HO letters. These letters are generally standard templates and often contain errors or incorrect advice.