Dear Sir or Madam,

Please find below a Freedom of Information request seeking
clarification and statistics with regards to the UKBA 28 day early
application policy.

The rules for Indefinite Leave to Remain (ILR) as a highly skilled
migrant (HSMP) in the UK were changed in April 2006 making 5 years
continuous residence one of the eligibility requirements.

The eligibility requirements for ILR as a HSMP are detailed in Part
5 of the immigration rules are listed below:

"135G. The requirements for indefinite leave to remain for a person
who has been granted leave as a highly skilled migrant are that the
applicant:

(i) has spent a continuous period of 5 years lawfully in the United
Kingdom, of which the most recent period must have been spent with
leave as a highly skilled migrant (in accordance with paragraphs
135A to 135F of these Rules), and the remainder must be made up of
leave as a highly skilled migrant, leave as a work permit holder
(under paragraphs 128 to 133 of these Rules), or leave as an
Innovator (under paragraphs 210A to 210F of these Rules); and

(ii) throughout the five years spent in the United Kingdom has been
able to maintain and accommodate himself and any dependants
adequately without recourse to public funds; and

(iii) is lawfully economically active in the United Kingdom in
employment, self-employment or a combination of both; and

(iv) has sufficient knowledge of the English language and
sufficient knowledge about life in the United Kingdom, unless he is
under the age of 18 or aged 65 or over at the time he makes his
application."

The rules detailed above require the applicant to be continuously
resident for a set period of time (5 years in the case of HSMP) to
be eligible for ILR. The SET(O) form, which is used by HSMP for ILR
application states: “Please do not apply more than 28 days before
completing that qualifying period”.

This statement clearly implies that UKBA consider SET(O) ILR
applications valid in person or by post (with regards to the
continuous residence requirement) 28 days before the completion of
the qualifying period (or 5 years in case of HSMP).

It is common knowledge that for obtaining PEO (in person
application) appointments for ILR, UKBA also offer appointments up
to 28 days before the completion of the qualifying period however
they insist that the applicant has to have a visa to cover the full
eligibility period or 5 years for HSMP. Applicants whose visas are
short by up to 28 days are asked to first extend their visa before
applying for ILR.

The immigration rules for ILR define continuous residence as the
eligibility requirement. There is no mention in these rules of ILR
being subject to the length for which the eligible visas are issued
for. Since 28 days early applications are considered valid by UKBA
this implies that some ILR applicants who applied in person up to
28 days early would have been granted ILR even before they have
completed the full period of the required continuous residence.
This would clearly not be in compliance with the immigration rule
which states the eligibility requirement as continuous residence
and not how long the visa is issued for. The UKBA policy to allow
28 days early application should therefore be available to all ILR
applicants including those who have a shortfall due to their visas
expiring up to 28 days before the end of the qualifying period. A
clarification from UKBA on the issue raised above would be useful.

I would also like to request the total number of ILR that have been
granted up to 28 days before completing their qualifying period for
HSMP post the April 2006 change requiring 5 years continuous
residence. The figures should include all approved ILR that were
granted under the 28 days early application policy for both postal
and in person applications.

Yours faithfully,

A Ahmad

Thank you for your below request which is being considered under the
Freedom of Information Act. We will respond shortly.

Yours sincerely,

Mr Feakins,
Freedom of Information Team

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Dear Freedom Of Information Team ( IND ),

Can you please respond to this FOI request at your earliest
convenience as it is now overdue. This delay is not in compliance
with the terms of the Freedom of Information Act.

Yours sincerely,

A Ahmad

Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of UK Border Agency's
handling of my FOI request 'Clarification Regarding 28 Days Early
Application Provision'.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/cl...

Yours sincerely,

A Ahmad

Dear A Ahmad

Thank you for your recent e-mail concerning the above matter. We are
currently gathering all the information needed to complete this review
and we will respond as soon as possible.

Regards

Miss. C. Fisher.
Information Access Policy Team

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Dear A.A hmed

Please find attached a response to your Freedom of Information request
reference 11824.

Yours sincerely

C. King

Information Access Policy Team | Resource Management Group| UK Border
Agency |

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

Dear A. Ahmad,

Firstly I apologise for the significant delay in responding to your
enquiry below.

I have been tasked with carrying out an internal review into your recent
request for information under the Freedom of Information Act (FOIA).

However, having looked at your request, the response and your subsequent
request for a review it is not possible for me to carry out your request
until I have some clarification from you. I am sorry if you find this
frustrating, but until I know the exact grounds for your request, I am
not able to complete the review.

I note that from your original request you asked for "information about
the qualifying periods for settlement applications". In response the
UKBA directed you to some already published information in an attempt to
be helpful, but there was a little confusion as to exactly what
information relating to policy decisions you required. Having looked at
the published information are you now in a position to clarify your
original request?

You also asked for some statistics on the total number of ILR requests
granted up to 28 days before completion of the qualifying period for
HSMP after April 2006. It was found that to answer this element of your
request it would take more that 3 1/2 days and as such under Section 12
of the Freedom of Information (FOI) Act we are not obliged to comply
with that part of your request.

Finally, I note that your request was made 6 May 2009 and the response
was sent 22 July, outside the statutory time frame permitted by the FOI
Act.

In your request for an internal review you simply ask for that - an
internal review. Can you please clarify exactly what element of the
response you are not satisfied with? If we have misunderstood what you
have actually asked for, then please clarify.

Once I have the information I require I will ensure that an internal
review is undertaken in line with your wishes.

Thank you

Ian Morris
Assistant Director
Resource management Directorate

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Dear Ian,

Many thanks for looking into this matter.

The reason I submitted this request under the FOI Act was to seek
clarification about how UKBA interpret shortfalls of up to 28 days
whilst dealing with ILR applications. With shortfall, I mean that
the qualifying visa runs out up to 28 days prior to the full 5
years qualifying period.

The UKBA general helpline initially told me that any shortfall will
need to be covered by an extension to the exiting visa. On another
occasion I was told it is acceptable to have shortfall up to 28
days. Since the two replies were hardly consistent I requested
internal guidance on the subject.

I am however satisfied by the response that 28 days shortfall is
not an automatic rejection criteria but rather a matter for the
caseworker to use his/her discretion.

The second part of my request about the statistics was essentially
to determine any patterns with regards to ILR applications with
regards to shortfall in the tenure of the qualifying visa.

I am now satisfied with the responses and would not like to pursue
this request any further. Thanking you.

Yours sincerely,

A Ahmad

I am currently out of the office. If the matter is urgent and cannot wait
until my return please contact Mark Baldock. Alternatively your email will
be read when I am next at my desk.

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Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.