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Saturday, 7 April 2012

HSMP/TIER1 valid for 4 years & 11 months = ILR dramas

It took me over a year to find the answers to my problem when applying for Indefinite Leave to Remain (ILR). As a couple of other friends were in the same situation, I thought I’d share my experiences online for others to learn from. To clearly explain the problem, here is my one of my letters to UK Border Agency (UKBA):
Dear UKBA,
Can you please provide me with information as to whether or not it is possible to to apply for settlement (ILR) if the HSMP/Tier1 is to expires exactly at 4 years and 11 months? (short 27 days of 5 years). Toillustrate the question:
-         HSMP date = 19/5/2006
-         5 years from the HSMP = 19/05/2011
-         Able to apply for settlement 28 days prior 5 years: (19/05/2011 - 28days) = 21/04/2011
-         HSMP/Tier1 VISA is valid until the SAME date = 21/04/2011
So, the question is, based on the dates alone, would I be able to apply for ILR if I make an application at the public enquiry office (PEO) on 21/4/2011? Ideally, I would like to book an appointment at the PEO to apply for ILR on this date, however, if this option is not appropriate, I would like to find out what do to extend the leave to remain.
I have found this forum/letter that suggests I there may have been an error with my leave to remain:
Paragraph 9 of "Migrants who currently hold HSMP leave and have either applied for an extension of stay or will need to do so in the future " states:
 "If an applicant meets these requirements we will grant them:
 a. Three years' leave; or
 b. Enough leave to enable the applicant to complete the qualifying period for settlement, whichever is the greater."
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/workingintheuk/hsmpjudicialreview

This letter made recommendations for this individual to submit their passport with a cover letter explaining the error: http://www.hsmpforumltd.com/HSMP%20Forum%20error%20correction.pdf
I am wondering if I should follow the same instructions? (Note: I am based in central London)
I anxiously look forward to a response urgently as I would like to know if I could book an appointment at the PEO for the exact date.
Thanks.

After 3 attempts at writing snail mail letters to UKBA and not getting the response I had hoped for (turnaround time of approx 6-8 weeks!) I decided to write another email to ukbapublicenquiries@ukba.gsi.gov.uk

I had the same LONG generic response, but this time, I read the all of the fine print in the email and stopped at: "If you have read this message and looked on the UK Border Agency website, but you have not found the information you require, please re-send your enquiry with "FAQ" in the subject/title line to: UKBApublicenquiries@ukba.gsi.gov.uk"
One day after changing my subject to FAQ, I received a most welcoming response:
From: IND Public Enquiries <UKBApublicenquiries@ukba.gsi.gov.uk>
Date: Wed, Mar 2, 2011 at 1:16 PM
Subject: RE: Require urgent information about ILR and HSMP error

Thank you for your enquiry.
Please be advised that from the information that you have provided, you will be eligible to submit your application on 21 April 2011. As your current leave also expires on the same day, please ensure that you either submit your application in person at our Public Enquiry Office on 21 April 2011 or submit your application via postal route using Royal Mail Recorded/Special Delivery service as date of posting is deemed as date of application.
Please visit the following website to make an appointment at one of the Public Enquiry Offices listed below: ukbabooking.homeoffice.gov.uk
Full details of the service they provide can be found on the UK Border Agency website at: www.ukba.homeoffice.gov.uk/contact/applyinginperson/
Please note, if you are unable to secure an appointment, you should send your application by post to the address on the form before your current leave to remain expires. Application forms can be downloaded from the UK Border Agency website at: www.ukba.homeoffice.gov.uk.
I hope that this information will be of assistance to you.
Yours sincerely,
Amrit Haria, Immigration Group, UK Border Agency
If you intend to reply to this e-mail please ensure that you re-send all the information from your original enquiry.
On the day of my appointment, there were no questions asked about applying exactly 4 years and 11 months from my qualifying period! Having said that, I had a friend in almost the same situation, but was told she had to extend her TIER1 a second time! All I can say is, if you are reading this in detail, then I wish you the best of luck. :) 

Other useful information saved during my research:

7 comments:

  1. Hey Pete,

    Thanks for the useful links!

    I've got a few more questions perhaps you can help me with..?

    1. How do they calculate absences over 5 years; do you include flying days? i.e. depart 5th, return 8th.... is this counted as 4 days, or 2 days absent?

    2. Do I need to demonstrate savings in my account? If so, how much and from what period onwards? i.e 3 months prior application

    3. Entry date - is this the actual day you enter the UK (on working Holiday Visa), or the date where you first receive your HSMP?

    4. Section 9A: I have a Limited Company - does this make me a director of a company? or is this not really the case?

    Thanks a million!

    Teri K

    ReplyDelete
  2. Oh! and one more thing! How strict are they with the 180 day/6 months absent thing? Cos I'm already over by about 2 weeks, and I've got another 7 months til I can apply :s

    ReplyDelete
  3. Hey Teri,
    I'll try my best to help you out with your questions based on my research and experience.

    1. As you were actually in the country on the 5th and 8th for the example above, it is counted as 2 days absence. I had an excel spread sheet with the following columns: Date left UK, page in passport, Date returned to UK, page in passport, Destination, Number of days out of country (formula =A2-C2-1), reason. I then did a total number of days out of the country for 5 years and 1 year.

    2. Sorry, I can't comment as I did not need to fill this part of my form as I came in on my HSMP and fit in the Judicial Review exemptions.

    3. Entry date: I asked others the same thing and I think I ended up putting my working holiday visa entry date as I did not need to leave the country to apply for my HSMP or extension as others need to do these days.

    4. I don't have any experience with this either, but I can ask around. I think I have a friend who may have a limited company setup as well who applied for their ILR last year.

    5. I was under the impression they were quite strict about the last year. Didn't realise they changed it to 180 days.

    The only thing to comment is that the absences from the UK is used at the discretion of the person reviewing your application. They are checking to make sure you have made UK your resident/main country; this means that they *may not count* travelling for work or holidays towards the number of days absent from the UK. I’ve found this link I saved from my previous research, and they seem to have more detail from when I read it a year ago:
    http://www.ind.homeoffice.gov.uk/britishcitizenship/eligibility/naturalisation/absencesfromuk/

    ReplyDelete
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