UK ILR - 28 day rule, qualifying period, immigration status, biometrics

[svaptailr]

Hello,

I am a bit uncertain about my interpretation of the rules and would benefit from the advice of forumites.

I was granted a 3 year student visa for the UK in 2004 (entered UK in Sep 2004) and completed my PhD in 2007. On graduation, I applied for my HSMP Visa from within the UK and the visa was stamped on 6th Sep 2007 and was valid until 6th Sep 2009 (2 years).

I applied for renewal onto the Tier 1 visa on 31st Aug 2009 by post. My Tier 1 visa was stamped on 24th Sep 2009 valid until 24th Sep 2012 (3 years).

I am eligible to apply for ILR at the end of my current Tier 1 Visa and have a few queries in this regard:

1. Question 6.1 on form SET(O): “When did you (the main applicant) first enter the UK? This refers to the date of your first entry into the UK at the beginning of the period of stay on which this application is based”. My understanding is that in the case of persons who applied for their work visa from within the UK, this date is the date on which the visa was stamped. Therefore, the visa stamp date is the beginning of the qualifying period. In my case this would then be 6th Sep 2007. Is this correct?
   
2. My understanding is that the period which my visa application was under consideration after the expiry of HSMP and before the Tier-1 visa was stamped (between 6th and 24th Sep 2009) is treated as a continuation of the former immigration category that I was on, i.e. HSMP (From FAQ on UKBA website: What is my Immigration Status while my application is being decided? If you make an application before your authorised stay ends, your existing immigration status will continue until your application is decided, even if the decision is not made until after the end of your permitted stay). My interpretation therefore is that this period counts towards the 5 year qualifying period in my case. Is this correct?
   
3. 28 day rule – SET(O) Guidance Notes, Section 5 When To Apply states “Please do not apply more than 28 days before completing the qualifying period”. This section does not state if the 28 day rule is applicable for only postal applications, and therefore my understanding is that I can make a premium application (in person) as early as 28 days before completing the qualifying period. Is this correct?
   
4. If points 1, 2, 3 are all correct interpretations of the rules as they stand; then in my specific case, the qualifying period completes on 6th Sep 2012. Therefore the earliest I can apply is 10th Aug 2012 (not 9th Aug 2012). Is this correct? Also, the last date I can apply for ILR (in person) is 24th Sep 2012, when my Tier-1 visa expires.
   
5. The written ministerial statement dated 6th Dec 2011 published by the Home Office states that in order to comply with EU regulations, biometric residence permits (BRPs) would become compulsory for all residency applications (including settlement) from 29th Feb 2012. This means that I would need to apply for a BRP. Since I am planning on applying for the Premium Service (at Croydon PEO), will the fingerprints be taken on the same day or would I need to make a separate appointment for biometrics prior to my ILR appointment?

I would be travelling in that period and my travel plans are very critical. Therefore an exact interpretation of the rules will help me plan things out. I hope someone can shed light on my questions and validate my assumptions.

Thank you all for your time.

Cheers
Sagar

[Joppa]

Originally Posted by svaptailr

Hello,

I am a bit uncertain about my interpretation of the rules and would benefit from the advice of forumites.

I was granted a 3 year student visa for the UK in 2004 (entered UK in Sep 2004) and completed my PhD in 2007. On graduation, I applied for my HSMP Visa from within the UK and the visa was stamped on 6th Sep 2007 and was valid until 6th Sep 2009 (2 years).

I applied for renewal onto the Tier 1 visa on 31st Aug 2009 by post. My Tier 1 visa was stamped on 24th Sep 2009 valid until 24th Sep 2012 (3 years).

I am eligible to apply for ILR at the end of my current Tier 1 Visa and have a few queries in this regard:


Question 6.1 on form SET(O): “When did you (the main applicant) first enter the UK? This refers to the date of your first entry into the UK at the beginning of the period of stay on which this application is based”. My understanding is that in the case of persons who applied for their work visa from within the UK, this date is the date on which the visa was stamped. Therefore, the visa stamp date is the beginning of the qualifying period. In my case this would then be 6th Sep 2007. Is this correct?

Yes.

My understanding is that the period which my visa application was under consideration after the expiry of HSMP and before the Tier-1 visa was stamped (between 6th and 24th Sep 2009) is treated as a continuation of the former immigration category that I was on, i.e. HSMP (From FAQ on UKBA website: What is my Immigration Status while my application is being decided? If you make an application before your authorised stay ends, your existing immigration status will continue until your application is decided, even if the decision is not made until after the end of your permitted stay). My interpretation therefore is that this period counts towards the 5 year qualifying period in my case. Is this correct?

Yes.

28 day rule – SET(O) Guidance Notes, Section 5 When To Apply states “Please do not apply more than 28 days before completing the qualifying period”. This section does not state if the 28 day rule is applicable for only postal applications, and therefore my understanding is that I can make a premium application (in person) as early as 28 days before completing the qualifying period. Is this correct?

Yes.

If points 1, 2, 3 are all correct interpretations of the rules as they stand; then in my specific case, the qualifying period completes on 6th Sep 2012. Therefore the earliest I can apply is 10th Aug 2012 (not 9th Aug 2012). Is this correct? Also, the last date I can apply for ILR (in person) is 24th Sep 2012, when my Tier-1 visa expires.

You can apply on 9th August. 24th Sep is correct, though I suggest you give yourself a few days' leeway in case unexpected happens, such as illness, car breakdown etc.

The written ministerial statement dated 6th Dec 2011 published by the Home Office states that in order to comply with EU regulations, biometric residence permits (BRPs) would become compulsory for all residency applications (including settlement) from 29th Feb 2012. This means that I would need to apply for a BRP. Since I am planning on applying for the Premium Service (at Croydon PEO), will the fingerprints be taken on the same day or would I need to make a separate appointment for biometrics prior to my ILR appointment?[/LIST]

It will be done on the same day.

I would be travelling in that period and my travel plans are very critical. Therefore an exact interpretation of the rules will help me plan things out. I hope someone can shed light on my questions and validate my assumptions.

One thing to bear in mind is that PEO appointments get heavily booked up. Slots are released 6 weeks in advance, but many are already taken by agents who have priority access to them for their clients. Also availability depends on types of application, such as SET(O) in your case. If dates are critical, I suggest you cast your net wide and are prepared to travel anywhere for appointment (you don't need to use your nearest). Croydon usually has most slots.

[svaptailr]

@Joppa

Thank you for your quick reply.

Originally Posted by Joppa

One thing to bear in mind is that PEO appointments get heavily booked up. Slots are released 6 weeks in advance, but many are already taken by agents who have priority access to them for their clients. Also availability depends on types of application, such as SET(O) in your case. If dates are critical, I suggest you cast your net wide and are prepared to travel anywhere for appointment (you don't need to use your nearest). Croydon usually has most slots.

I recently logged into the online booking website to do a dry run and noticed that the calendar had dates "enabled" upto 3 months from today (for example, today, I can select dates upto 20 Apr 2012). After your advice that I can only block dates 6 weeks in advance, I tried to pick a date beyond 6 weeks, and although I could select the date, On hitting the "Next", I got a message saying "We do not have any appointments available for your preferred dates and locations."

This confirms your advice that individuals can only book 6 weeks in advance. I have summarised my experience with the site just in case someone else tries to book online and gets fooled at first glance into thinking that they can book appointments 3 months in advance.

[Joppa]

Originally Posted by svaptailr

I recently logged into the online booking website to do a dry run and noticed that the calendar had dates "enabled" upto 3 months from today (for example, today, I can select dates upto 20 Apr 2012). After your advice that I can only block dates 6 weeks in advance, I tried to pick a date beyond 6 weeks, and although I could select the date, On hitting the "Next", I got a message saying "We do not have any appointments available for your preferred dates and locations."

This confirms your advice that individuals can only book 6 weeks in advance. I have summarised my experience with the site just in case someone else tries to book online and gets fooled at first glance into thinking that they can book appointments 3 months in advance.

Yes, that's true. I'd have thought with just a single application (not involving dependants), you shouldn't have too much trouble getting the date you want, provided you book as soon as slots are released. Try Croydon PEO first, as it's biggest and local to you. Try logging on a few days before 6 weeks, as they sometimes release a bit earlier. Usually they are released overnight on the relevant dates, so stay up late!

[svaptailr]

Thanks again Joppa.

On a slightly different topic, with regards to calculating number of days spent days outside the UK during the qualifying period to test for compliance with the continuous stay requirements, I cannot find any authoritative document / guideline on UKBA website.
The closest match I could find was in the document titled “NATURALISATION AS A BRITISH CITIZEN - A GUIDE FOR APPLICANTS To be read in conjunction with Booklet AN”. In this document, in section 2.2, it states: “Insert the number of days you were away from the UK in the last column ignoring the day you left and the day you arrived back in the UK.”
I realise that this document pertains to guidance for Naturalisation and not Settlement. However, I would like to ask if the same rule can be applied with regards to calculating the length of absences from the UK in relation to continuous stay requirements for Settlement.



Also, do the limits on absences (90 days / year) apply to partners applying for Settlement along with the main applicant? So long as partners started co-habiting with the main applicant more than 3 years prior to the date of application for settlement, and can supply evidence of co-habiting (NHS letters, joint bank statements etc), will long/frequent absences (of the main applicant's partner) for personal reasons beyond 90 days / year be overlooked? Or will they be an issue? As far as I can see, there is no specific section in the SET(O) form that asks to list out dependents absences so I am presuming this should not be a problem. Any advice on this area would be gratefully received!

[Joppa]

Originally Posted by svaptailr

Thanks again Joppa.

On a slightly different topic, with regards to calculating number of days spent days outside the UK during the qualifying period to test for compliance with the continuous stay requirements, I cannot find any authoritative document / guideline on UKBA website.
The closest match I could find was in the document titled “NATURALISATION AS A BRITISH CITIZEN - A GUIDE FOR APPLICANTS To be read in conjunction with Booklet AN”. In this document, in section 2.2, it states: “Insert the number of days you were away from the UK in the last column ignoring the day you left and the day you arrived back in the UK.”
I realise that this document pertains to guidance for Naturalisation and not Settlement. However, I would like to ask if the same rule can be applied with regards to calculating the length of absences from the UK in relation to continuous stay requirements for Settlement.

There are no rules about how long you can stay away from UK during your probationary period in order to be granted settlement (ILR). Obviously your home has to be in UK and any absences must be compatible with that notion - that's all. You find guidance here:

4.6. Absences from UK during probationary period
There is no specific requirement in the Rules that the entire probationary period must be spent in the United Kingdom. For example, where an applicant has spent a limited period outside of the United Kingdom in connection with his employment, this should not count against him. However, if he has spent the majority of the period overseas, there may be reason to doubt that all the requirements of the Rules have been met. Each case must be judged on its merits, taking into account reasons for travel, length of absences and whether the applicant and sponsor travelled and lived together during the time spent outside the United Kingdom. These factors will need to be considered against the requirements of the Rules.
http://www.ukba.homeoffice.gov.uk/si...df?view=Binary

Also, do the limits on absences (90 days / year) apply to partners applying for Settlement along with the main applicant? So long as partners started co-habiting with the main applicant more than 3 years prior to the date of application for settlement, and can supply evidence of co-habiting (NHS letters, joint bank statements etc), will long/frequent absences (of the main applicant's partner) for personal reasons beyond 90 days / year be overlooked? Or will they be an issue? As far as I can see, there is no specific section in the SET(O) form that asks to list out dependents absences so I am presuming this should not be a problem. Any advice on this area would be gratefully received!

UK partner's absences have no bearing on naturalisation, unless there are reasons to doubt the durability of relationship - i.e. they are in fact separating.
See conditions for naturalisation as spouse of a British citizen:
UK Border Agency | Requirements for naturalisation if you are married to or the civil partner of a British citizen

[svaptailr]

Thanks Joppa.

[svaptailr]

Originally Posted by Joppa

There are no rules about how long you can stay away from UK during your probationary period in order to be granted settlement (ILR). Obviously your home has to be in UK and any absences must be compatible with that notion - that's all. You find guidance here:

[I]4.6. Absences from UK during probationary period
There is no specific requirement in the Rules that the entire probationary period must be spent in the United Kingdom. For example, where an applicant has spent a limited period outside of the United Kingdom in connection with his employment, this should not count against him. However, if he has spent the majority of the period overseas, there may be reason to doubt that all the requirements of the Rules have been met. Each case must be judged on its merits, taking into account reasons for travel, length of absences and whether the applicant and sponsor travelled and lived together during the time spent outside the United Kingdom. These factors will need to be considered against the requirements of the Rules.

Thanks for the document link. I have spent most of my time in the UK and in one of the years within the qualifying period spent exactly 90 days out of the UK (of which 60 days were for work reasons sponsored by my UK employer). I did a double take and could not find any documents specifying an explicit day count for absences, as you have rightly pointed out. Nevertheless, on a number of forum posts elsewhere I have see advice to the effect that no more than 180 days may be spent outside the UK in total during the entire 5 year period, with no more than 90 days in any calendar year. I think this is a general but common misconception.

Back to the link that you had painted above in relation to "CHAPTER 8 - FAMILY MEMBERS", an extract from the Section "Absences from UK during probationary period" : However, if he has spent the majority of the period overseas, there may be reason to doubt that all the requirements of the Rules have been met.

I think the key word is majority. Should one interpret as "more than half the number of days"? (I'm asking this not in relation to myself, but in relation to my partner who has significant absences).

Originally Posted by Joppa

UK partner's absences have no bearing on naturalisation, unless there are reasons to doubt the durability of relationship - i.e. they are in fact separating.
See conditions for naturalisation as spouse of a British citizen:

My partner (with the absences) who is currently on a Tier-1 Dependent visa will be applying for Settlement along with me. We are not yet at the stage of naturalisation . My doubt was - will absences (amounting to over half the probationary period) have any bearing on her application for Settlement along with me. Perhaps not really since we can provide evidence supporting the fact that we are very much together and intend to remain so.

[Psalm121]

Hi Seniors, am new to this forum. I will some questions I will like someone to help with answers:
1) verifying if my spouse can apply for ILR same time with me. She was issued a dependant visa and on 20/10/2011 and Joined me in uk on 2/11/2011. I understand she has to stay for 2 years in the UK before she can apply for ILR (Old rule which applies to me as i will be applying for ILR october, 2013). her current visa will expire on the 9th October 2013 by then she would have lived in UK for 1 year, 11 months 3days.

Question: with the above, can she apply together with me for ILR? (She will some few days less than 2 years)

2) For me the Principal application, i was granted my visa in october 2008, and came to uk on 20th December 2008, about two months after, and have been living in UK since then.

Question: Will be able to apply for ILR considering the calculation of period of continuous stay having spent about 60 days in total (4 trips not more than 30 days in a single trip) out on holidays and about two moths travel delay before coming to the uk

Thank you

[Joppa]

Originally Posted by Psalm121

Hi Seniors, am new to this forum. I will some questions I will like someone to help with answers:
1) verifying if my spouse can apply for ILR same time with me. She was issued a dependant visa and on 20/10/2011 and Joined me in uk on 2/11/2011. I understand she has to stay for 2 years in the UK before she can apply for ILR (Old rule which applies to me as i will be applying for ILR october, 2013). her current visa will expire on the 9th October 2013 by then she would have lived in UK for 1 year, 11 months 3days.

Question: with the above, can she apply together with me for ILR? (She will some few days less than 2 years).

They are very strict with the qualifying period prior to granting ILR. Your wife's visa must still be valid on the day she will be resident here for 2 years, and even a few days short will make her ineligible. So she will have to extend her leave before she can apply for ILR.
What I don't understand is why was her visa issued for an add period of validity of 20th Oct 2011 to 9th Oct 2013? Or was it valid from 9th Oct 2011 but she delayed her arrival by almost a month?

2) For me the Principal application, i was granted my visa in october 2008, and came to uk on 20th December 2008, about two months after, and have been living in UK since then.

Question: Will be able to apply for ILR considering the calculation of period of continuous stay having spent about 60 days in total (4 trips not more than 30 days in a single trip) out on holidays and about two moths travel delay before coming to the uk.

That's fine.