FLR (HRO)

[rz95]

Hello everyone,

I need some advice regarding my plan for applying for Indefinite Leave to Remain (ILR) in the UK and ensuring I meet the continuous residence requirement.

Background:

I arrived in the UK on 12 December 2014.
I have lived in the UK continuously with valid leave since then.
I am currently on a Post-Study Work (PSW) visa, which will expire on 12 October 2024.

My Plan:

I plan to apply for a Private Life visa on 11 October 2024 to ensure that I am covered by Section 3C leave after my PSW visa expires.
On 16 November 2024, I intend to vary my application to an ILR application, which will be after I've completed nearly 10 years of continuous residence.

Questions:

Will my plan to apply for a Private Life visa on 11 October 2024 and then vary it to an ILR application on 16 November 2024 work for meeting the ILR continuous residence requirement?
Since I would reach the full 10 years on 12 December 2024, will my ILR application be valid if I submit it on 16 November 2024 after varying the Private Life application?
Does Section 3C leave fully protect my status during this transition?

I'd really appreciate any insights or advice from those who have experience with a similar situation.

Thanks in advance!

[zimba]

Just apply directly for the long residence. There is no need to apply for a visa and vary. Just apply before visa expiry using standard service and delay the biometrics until you get within 28 days of completing your 10-years. Time spent under Section 3C counts as lawful residence towards ILR.

See: Applicants can benefit from the date of the ILR decision

You get 45 working days to book you biometrics:

Individuals who make in-country applications must, in most circumstances, book an
appointment to enrol their biometric information within a specified period unless an
exemption or exception applies or they have used the UK Immigration: ID Check
app. Individuals will be informed to:

• make an appointment at a Service and Support Centre (SSC) within 15 working days
• make an appointment at a UK Visa and Citizenship Application Services (UKVCAS) location within 45 working days

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

[rz95]

Thank you for your response.

But in the website it says that " The earliest you can apply is 28 days before you’re eligible.

Your application may be refused if you apply earlier."

Very confused.

[zimba]

That is not correct at all as the date of application is not critical. The rules require the caseworker to use the date that is most beneficial to you. I explained it all in the link above !

[rz95]

I am currently considering applying for FLR (FM) based on private life, but I plan to apply for ILR soon after I become eligible. I understand that the Home Office guidelines state that human rights applications cannot be varied into other applications, including ILR. Could you please confirm if this means that an FLR (FM) private life application cannot be varied into an ILR application under the long residence rule (276B)?

Additionally, if I were to apply for FLR (HRO) to obtain limited leave to remain, would I still be able to vary this to an ILR application later on, or would I need to withdraw the FLR (HRO) claim and submit a fresh ILR application? Are there any risks or complications in taking this approach, particularly with regard to maintaining my leave under section 3C of the Immigration Act?

[zimba]

I am currently considering applying for FLR (FM) based on private life, but I plan to apply for ILR soon after I become eligible. I understand that the Home Office guidelines state that human rights applications cannot be varied into other applications, including ILR. Could you please confirm if this means that an FLR (FM) private life application cannot be varied into an ILR application under the long residence rule (276B)?

Additionally, if I were to apply for FLR (HRO) to obtain limited leave to remain, would I still be able to vary this to an ILR application later on, or would I need to withdraw the FLR (HRO) claim and submit a fresh ILR application? Are there any risks or complications in taking this approach, particularly with regard to maintaining my leave under section 3C of the Immigration Act?

Do you mean FLR(M) ??? You can vary any application to ILR.
You have already been advised to apply for ILR directly. Why are you aiming for a new visa again ???

[rz95]

As per the guidelines there are risk associated with applying for ILR before eligible.

You are write that they will consider the most beneficial date. But considering if they consider the application before 28 days of being eligible they will refuse the application. For this risk I omitted to take that route.

My question is: AS per the guidelines; "A human rights application cannot be varied by later applications. This includes asylum applications. For details on which applications are also human rights claims see the Rights of Appeal guidance under the heading ‘What is a human rights claim?’"

How to identify a human rights claim:

In the UK: application under the Immigration Rules The applications listed in this section and made under the Immigration Rules are human rights applications and the starting position is that there is a right of appeal against refusal.

Where paragraph 353 (further submissions) applies and the further submissions do not amount to a fresh claim or where the claim is certified under section 96, there will be no right of appeal, and if certified under section 94B no right of appeal until the person has left the UK.

These applications can be made while the applicant has leave under section 3C of the Immigration Act 1971 as a consequence of an ongoing appeal against the refusal of another application.

No other applications under the rules other than those in this section can be made where the applicant has 3C leave. If the applicant withdraws their appeal, they will no longer be prevented from making any other application under the rules. Alternatively, the applicant may make an application once their appeal rights are exhausted.
The relevant applications are those made under:
• Paragraph 276B (long residence)
• Paragraphs 276ADE(1) or 276DE (private life)
• Paragraphs 276U and 276AA (partner or child of a member of HM Forces)
• Paragraphs 276AD and 276AG (partner or child of a member of HM Forces),
where:
o the sponsor is a foreign or Commonwealth member of HM Forces and has at
least 4 years’ reckonable service in HM Forces at the date of application
• Part 8 of these Rules (family members) where:
o the sponsor is present and settled in the UK or has refugee or humanitarian
protection in the UK, not paragraphs 319AA to 319J (points-based system
(PBS) dependents), paragraphs 284, 287, 295D or 295G (sponsor granted
settlement as a PBS Migrant)
• Part 11 (asylum)
• Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM
Forces) where:
o the sponsor is a British Citizen or has at least 4 years’ reckonable service in
HM Forces at the date of application
• Appendix FM (family members), not: section BPILR (bereavement) or section
DVILR (domestic violence)
Page 11 of 65 Published for Home Office staff on 11 December 2023
Refusal notice to be served: Asylum (except in deportation cases)
• ASL.0015.ACD.IA (refusal of protection with a right of appeal with section 96
option to certify)
• ASL.1000.IA (refusal of protection where the applicant failed to attend the
screening interview – decision not certified)
• ASL.1006.IA (protection refusal of dependents with section 96 option)
• ASL.1956 (refusal of protection certified under section 94)
• ASL.2704. (rejection of further submissions under paragraph 353)
Refusal notice to be served: all other human rights applications
• ICD.3050.IA (refusal with a right of appeal)
• ICD.1182.IA (refusal with section 94 certification)
• ICD.3051.IA (refusal with no appeal because not a fresh claim under paragraph
Rule 353)
• ICD.3052.IA (refusal with no appeal because of section 96 certification)

[zimba]

You clearly do not understand the rules and procedures and have very little experience with them, so I HIGHLY suggest not interpreting immigration guides or the rules. Qualification for ILR is about accumulating lawful residence not about applying on a specific date or whatever. You cannot be denied ILR when you have already accumulated the required lawful residence. The perceived risk of refusal therefore is not real under the rules. I covered why and how this is the case extensively in my link above.

Also, the guide you quoted in no way tells you that you can't vary a human rights application to ILR. So if you choose to apply for a new application, you can vary it later to ILR. However, this is not recommended as there is an easier way

[rz95]

Thank you for your response, and I appreciate your insights. However, I do have limited experience with immigration rules, and I am simply trying to follow the guidelines provided.

The guidance I referred to states:

"Human rights applications and variation

A human rights application cannot be varied by later applications. This includes asylum applications. For details on which applications are also human rights claims see the Rights of Appeal guidance under the heading ‘What is a human rights claim?’

Where a human rights claim is made followed by another non-human rights application which is granted, then the previous outstanding human rights claim is treated as withdrawn. If you considered the second application, you should tell the applicant this using the ‘Withdrawal’ template.

Where a human rights claim is made followed by another non-human rights application which is refused, you should email the Administrative Policy team for advice.

A human rights application made when an appeal is pending on a previous application does not vary that previous application and does not extend the person’s permission by virtue of section 3C of the Immigration Act 1971. For more information, see: Rights of Appeal."


This suggests that there is a limitation on varying certain human rights applications. I may have misinterpreted the rule, but it seems to imply a potential restriction when varying a human rights application to something like ILR.

Additionally, I am concerned that by the time the Home Office considers my application, I may not have met the time requirement for long residence. This is why I’ve decided not to pursue that route for now, as it may increase the risk of refusal.

Could you kindly help interpret the relevant part of the guidelines in this context? Your expertise would be very helpful in understanding this properly.

[zimba]

You can be granted ILR within 28 days of completing your 10 years, which would be 14 November 2024. You apply on 11 October before visa expiry and book your biometrics on or after 14 November 2024. By that time you are within the 28-day buffer to be granted ILR. This is strictly in line with the rules and guides in place. Also, this is the BEST and most beneficial thing to do in your case. Any other decision could become wasteful and expensive and delay your ILR by months. You are HIGHLY recommended to follow this device.

The human rights application cannot be varied in the sense that it remains valid even if you apply for a new application. This simply means that you could end up with TWO valid applications until the second one is decided, something that normally is not allowed. Normally a second application will vary the previous one and you technically end up with only ONE application (your new application is the only one)

So if you vary application A to B and then B is refused, you have no other application. However, if A was a human rights application and you applied for B and then B was refused, then there is no effect on application A and that will remain outstanding and the refusal of application B will not change it. That is the difference.

Example scenario 1
An applicant submits application A in time. They then submit application B before application A has been decided, but after the applicant’s leave has expired when the applicant transitioned to 3C leave.

As the applicant transitioned to 3C leave and a decision has not yet been made on application A, application B is automatically considered as a variation of application A. The date of application is the date application A was submitted. Application B is assessed against the rules in place on the date application B was submitted.

If Application A is a human rights application, as listed in Current rights of appeal guidance, and application B is granted, then the outstanding human rights claim is treated as withdrawn. If application B is refused, then the outstanding human rights claim remains outstanding to be decided at a later date.