Moderators / Senior Members View Point on ILR Qualification

[chosenaik]

I would appreciate Moderators and / or Senior Members' view point on my case (as listed below):

Passport stamped with Work Permit (old style) for entry clearance valid from: July 2, 2007
Actual landing in / entrance to UK at Heathrow on: July 7, 2007
Transferred to Tier 1 General on June 4, 2010 (expiring on June 4, 2012).

By my calculations, I should be eleigble for ILR given the "28 days prior rule" and not have to apply for an extension.

Here is my reasoning: 28 days before my 5 year period should be from July 2, 2012 (I am hoping that the 5 days gap in between granting of the visa July 2, 2007 and my actual landing on July 7, 2007) will be exempted) takes me to June 4, 2012. This is when my current Tier 1 visa expires and so I am hoping / praying that I do not have get an extension and can directly apply for ILR.

Would the Moderators / Senior Members kindly review and provide an opinion.

Many thanks!

[geriatrix]

You may not be able to take advantage of the discretion (Annex B -> 2.2) because it was your choice to switch from WP to Tier 1 (General) at the time that you did .... not a compulsion due to immigration rules or mandated / required by UKBA, but your voluntary decision to switch.

AIUI, the mentioned discretion applies to only those who apply for settlement having lived the qualifying residential period under the same immigration category. I believe it is for the same reason that the statement refers to "5 years continuous leave".

[chosenaik]

Hi Sushdmehta, I can not locate Annex 5 in the link you have attached. Please can you direct me to it.

I was not awatre of this "compulsion" rule and want to enquire / search on it, to see how it is iterpreted.

Many thanks!

[geriatrix]

Link updated.

Apologies.

[chosenaik]

Hi Susdmehta, many thanks for the document!

I have reviewed the relevant document, but I am unable to see where it states that "the mentioned discretion applies to only those who apply for settlement having lived the qualifying residential period under the same immigration category".

Is this your interpretation of the rule or is this stated in the document? If it is please can you direct me to the page number number.

I had spoken with the HR dept. of the company that I was with under the work permit and I was told that the total days spent under wp + T1 General will be counted towards the ILR and same rules will apply to me re: duration if I was under wp or T1 General. As the job offer I had at the time was dependant on me having a T1 General, I calculated the days that would qualify me for ILR and took the earliest possible PEO (also the only available at the time) and went to the Sheffield centre for it. The job offer would have been taken back if I didnt get the T1 General ASAP. In hind sight, I should have verified what I was told by the HR department before making the change.

Once again, many thanks for your help!

[chosenaik]

Hi Sushdmehta, I am following up on my earlier post.
Passport stamped with Work Permit (old style) for entry clearance valid from: July 2, 2007
Actual landing in / entrance to UK at Heathrow on: July 7, 2007
Transferred to Tier 1 General on June 4, 2010 (expiring on June 4, 2012).

I copy below the guidance. Based on this, in your opinion, would not my 5 day gap beteween grant of visa and entry to UK be overlooked and I'll be elegible for ILR on June 4 2012? Thanks!

5 WHEN TO APPLY
You and any dependants applying with you should apply before the end of your/their permitted stay in the UK.

There is a qualifying period to complete in most of the categories on this form. It runs either from:

- the date on which you entered the UK with a visa in the relevant category; or, if you did not enter the UK with such a visa, from
- the date on which you were first granted permission to remain in the UK in the relevant category.

If you entered the UK with a visa several weeks or more after the date from which it was valid for use, you may need to apply for an extension of stay to complete the relevant qualifying period.

Please do not apply more than 28 days before completing the qualifying period. If you apply earlier than that, your application may be refused. If that happens, we will not refund the fee and you will have to pay again when reapplying. Based on this, in your opinion, would I not be elegible and my 3 days gap between grant and entry to UK be overlooked?

The qualifying periods are as follows:

5 years In the work permit holder, employment not requiring a work permit, businessperson, innovator, investor, self-employed lawyer, writer, composer or artist, UK ancestry, Tier 1 and Tier 2 categories or routes. 5 years or 4 years in the highly skilled migrant category.

The 4-year qualifying period applies only to applications made under the terms of the HSMP indefinite leave to remain judicial review policy document. Those terms apply only if you applied successfully under the highly skilled migrant programme (HSMP) before 3 April 2006. All other highly skilled migrant applications are subject to the 5-year period.

[jami]

chosenaik,

Actually you should been given enough leave to remain on 4 June 2010 to complete qualifying period of 5 years for ILR - 2 July 2012 - instead leave of 2 years - up to 4 June 2012.

You entered in UK on 7 July 2007 and your 28 days concession from 5 years starts from 10 June 2012 whereas your leave is up to 4 June 2012 as such suppose if you apply in person on 3 June 2012 you would be applying outside the concession period.
Suggestions:
1. Write a letter to UKBA pointing out error in granting you in-sufficient leave.I have seen a leaflet at PEO containing information where to write if there is any error in leave granted, and/or
2. Send postal application around 2 June 2012 and there is no likelihood that application would be taken before 7 July 2011. By then you would have lawfully completed 5 years in UK.

[chosenaik]

Hi Jami, thank you for your reply. My visa was granted on 2 July 2007. As per the rule I copied, when entry isnt greatly after the granting of the visa, the the 5 yrs begins the date the visa was granted.

Therefore it would appear that June 4 (28 days before July 2) will be 5 years.

I can not appeal, as it was my own error that I applied too early. I was genuinely believeing taht my 5 years satrst from July 2007 and therefore June 4 would be enough. I was initially on a work permit and I guess Home Office leave it to the applicant to make sure he has done the right calculations.

Many thanks!

[jami]

error in posting

[jami]

In the text you have quoted there is no such stipulation of start of 5 years from the date of grant of entry clearance.
Law requires five year stay in UK - naturally from date of entry in UK or date of grant of leave to remain in UK in immigration category if one is already here in some other category.
However there are two concessions:

1. Three months from date of entry clearance from abroad
2. 28 days from date of expiry of leave to remain
First concession cant not be used towards the second

Nothing to loose if you write to UKBA as explained earlier

[rooney0511]

this may be cheeky and risky, but just a suggestion.
Hoping yours is a clear straight foward case,

You can post your application on the 4 june 2012 by a second class recorded post late in the evening ( there are some post offices which are open until 7.00pm) which will not leave until the 5th june and as it is posted second class will defineltly not reach durham until 7th or 8th and you will fall into your 28 days slot. Home Office accepts the date of posting as valid. Sending a cheque as a payment will also delay 4-5 days.
OR
you can send both extention and settlement applications with a covering letter, where the homeoffice rep in durham will refer it to the seniors and take a call.

[vinny]

It's important to make a valid postal ILR application before your leave expires. If you meet with all the requirements at the date of decision, then you should be okay.

[chosenaik]

Hi everybody,

As an update: I just got my employer's legal counsel to confirm to the HR group and myself, that my 5 year anniversary i.e. July 2 2012 (i.e. 5 years from the date my passport was stamped and not July 7th the date of entry to UK). Therefore I am eligible to apply for ILR on June 4th 2012 (28 days prior to July 2 2012. As my current visa is valid till June 4th 2012, I can apply for ILR on this date and do not require any extension.

I am hoping this helps thos others too whom are short of the requirement of 5 years. It appears as long as you entered soon after visa was first granted, the 5 years is from date of stamp in passport and not date of entry in UK.