ILR deferred .... and refused

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ILR deferred .... and refused

Postby ankit.aj » Fri Nov 04, 2011 8:46 pm

I had to stay abroad twice - once under 4 month and once under 3 months purely on work purpose. I applied in person on Nov 03, 2011 today and my case has been forwarded for consideration to senior team due to these absences who will come back in approximately 4 weeks.

My overall absentees from UK over the last five years were:
Business visits: 228 days (provided the company letter on this)
Personal paid holidays: 130 days

I have provided the company letter, payslips for these periods as well as IT returns for these periods (and for the last five years) that were payed in the UK. However, I am very concerned on this further consideration.

I will very much appreciate it if anyone of you who passed through similar situation can share your knowledge and may be their application results.

Warm Regards
Ankit
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Postby jami » Sat Nov 05, 2011 7:00 am

ankit.aj

What you have posted is unusual. Please post further details of your discussion with case worker. At which PEO and any document given to you?
UKBA has become strict on any absence over 3 month at a time for whatever reason.
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Postby ankit.aj » Tue Nov 15, 2011 5:43 pm

Dear Jami,

Please pardon me for the delayed rsponse as I did not receive any alert for your message. Thank you very much for the reply.

I applied in person at Croydon PEO. The case worker mentioned that our case is denied right now but has been sent to a higherteam to decide our case. Today we received a rejection letter from higher authority. The exact words these used are:

"In view of the fact that you were absent from the United Kingdom from 10 Oct 2009 to 05 Feb 2010,the Secretary of State is not satisfied that you have spent a continuous period of 5 years in the UK in this capacity.Therefore,you do not satisfy the requirements of the Immigration rules for this category and it has been decides to refuse your application for leave to remain as a Highly Skilled Migrant under the published immigration rules under Paragraph 135 of HC395(as amended)"

They have not entitled me with a appeal right. I am appalled by the decision as we provided couple of leters from my employer (a fortune 500 company). I am not sure if we can still put case forward to any other UKBA authority (or lower court) for reconsideration where we get clearly why they refused our stay outside UK that was purely on business reasons.

Our current Tier one expires on Dec 01, 2011.

Any help will be highly appreciated.

Regards
Ankit
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Postby sushdmehta » Tue Nov 15, 2011 6:07 pm

Were you paid in the UK during the absence in question? Did your family, if you have one, stay back in the UK during this absence? Did you maintain and continue paying for accommodation in the UK for this period? Did your child(ren), if you have any, continue attending school in the UK while your were away? Did your (dependant) spouse, if you have one, continue to remain in the UK and if employed did he / she continue working?

When caseworker discretion is involved one should provide additional evidences (in addition to the generic employer letter) to convince the caseworker that "continuous residence" in the UK was not broken and discretion should be applied in your (applicant's) favour.

You may wish to consider applying again (for settlement) by post closer to the expiry of your current leave - with additional documentary evidences as outlined above. In the unfortunate event that you be refused again, you will then be able to appeal and prove your point in court. Alternatively, you may wish to submit a request for Judicial Review (do note that requesting a judicial review will not extend your current leave).
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Postby ankit.aj » Tue Nov 15, 2011 6:16 pm

Dear sushdmehta,

I was single at the time I was absent from UK. During this period, I continued to get UK salary and paying the taxes. Along with the employment letter, I had provided the case worker with my P60s (tax returns) for the last five years as well as my UK salary for the period I was not in the UK.

With regard to applying again, I am not sure if this over 3 months stay outside UK has broken my continuous 5 years UK stay fully. In that case, I would have to wait for three more years before applying for ILR?

Also, since my current visa is expiring in about 2 weeks, in current situation I would have to extend my current Tier 1 visa. In that case I wont get appeal right even if they reject my application if I apply say again in 3-6 months from now. Do you think is there any other straightforward way to challenge this decision before I apply for my Tier 1 extension?
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Postby sushdmehta » Tue Nov 15, 2011 6:33 pm

ankit.aj wrote:With regard to applying again, I am not sure if this over 3 months stay outside UK has broken my continuous 5 years UK stay fully. In that case, I would have to wait for three more years before applying for ILR?
If your application has been refused for a single absence exceeding 90 days during the qualifying residential period, then the same reason may be used unless the absence in question falls out of the qualifying residential period. So in effect, UKBA has said that your ILR clock has been reset .... unless you can prove otherwise (which you tried to but seemingly failed).

ankit.aj wrote:Also, since my current visa is expiring in about 2 weeks, in current situation I would have to extend my current Tier 1 visa. In that case I wont get appeal right even if they reject my application if I apply say again in 3-6 months from now. Do you think is there any other straightforward way to challenge this decision before I apply for my Tier 1 extension?
Not applying for extension -> applying for settlement -> appealing if refused -> does make the situation precarious because if appeal is dismissed then your future in UK will be uncertain. On the other hand, if you apply for extension and then apply for settlement again in the near future you may be refused again for the same reason and without a right to appeal!

How about applying for extension and simultaneously submitting a request for judicial review?
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Postby jami » Tue Nov 15, 2011 6:40 pm

Sorry to hear that.
There is no consistency in UKBA on this issue. There are instances on this board where business related absences of more than 90 days at a time were disregarded.

Since you have leave hence there is no right of appeal and this refusal would reset your ILR clock from 5 Feb 2010. This is not fair. They should have at least aggregated the time as per their guidance if they were refusing ILR.

Now options are:
1. Seek extension and wait for 2015 or
2. Apply ILR again before expiry of current leave - through postal application and get a right of appeal if there is refusal again as getting the same through PEO would cost extra or
3. Seek extension and thereafter file JR
4. Representation/reconsideration request that error has been made.


My advice is for 2 above due to precedent of Upper Tribunal in BD case where there were continuous absence of over 900 days and UKBA did not appeal further rather said determination is consistent with their guidance. If your ties with UK has increased after that absence you have good chance in postal application as well with additional evidence as suggessted by sushdmetha.
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Postby ankit.aj » Tue Nov 15, 2011 6:45 pm

I did not get that fully. Do you mean that we can go to the PEO office and apply for extension in person and submit a request for judicial review at the same time?

Also, do you think my case can still be considered for a judicial review? I am also not sure about the timelines and cost involved there.

Thank you very much for your valuable advice.
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Postby sushdmehta » Tue Nov 15, 2011 7:01 pm

ankit.aj wrote:Do you mean that we can go to the PEO office and apply for extension in person and submit a request for judicial review at the same time?
Sorry! I meant that you apply for extension (in-person or by post, your choice) and in parallel apply for JR (which you do through a court).

jami has also highlighted one option that I did not post - request for reconsideration. So what you can do is apply for extension (no need to wait for grant of leave to proceed to the next steps) -> request for reconsideration -> if reconsideration does not result in a guaranteed overturn of refusal, submit a permission for JR (within 3 months of date of refusal).

JR is an expensive proposition, specially if it gets to the hearing stage (personally I think UKBA will buckle before it gets to that stage). If you wish to pursue a JR option, make sure that you get it done through a competent (not necessarily expensive) legal professional.
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Postby ankit.aj » Tue Nov 15, 2011 7:44 pm

Thank you very much jami and sushdmehta for your inputs. To me option 2) is not viable as it will risk my current employment.

I will look into the options and if I may come back to you on any issues. JR is still not very clear to me and apparently may prove very expensive - not sure about the rough costs.
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Postby jami » Tue Nov 15, 2011 9:26 pm

Considering your thinking your course of action can be:

1. Apply for extension and later
2. Apply for ILR after 4 months of extension ( after aggregating absence in question)

Meanwhile reconsideration can be tried.
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Postby sushdmehta » Wed Nov 16, 2011 3:23 am

jami wrote:2. Apply for ILR after 4 months of extension ( after aggregating absence in question)
May not work as the reason for refusal is given as "break in continuous residence because of (stated) single absence" rather than "been absent from UK for more days than the permitted limit".
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Postby jami » Wed Nov 16, 2011 7:33 am

Yes. May not work but is wroth trying in March 2012 instead of waiting for Feb.2015.

Even as suggested by you JR is also wroth trying - he can withdraw that if it goes to hearing to keep the cost at minimum. As per your assessment UKBA would concede at an early stage.
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Postby ankit.aj » Thu Nov 17, 2011 5:34 pm

Dear Jami and susdmehta,

After taking to a number of people, I am thinking to pursue:

Apply for extension -> request for reconsideration -> if reconsideration does not result in a guaranteed overturn of refusal, submit a permission for JR only till the stage for sending the notice (within 3 months of date of refusal).

However, today when I called the UKBA they told me that if I request for reconsideration before my Tier1 extension is accepted, my application will be put on hold and since its unlikely that they will decide within two weeks my visa will lapse. Is that true? I could not find much details on reconsideration process.

Secondly, the same person told me that I should ask in a letter to UKBA when can I apply for ILR next - after four months or after 3 years. Based on the reply, I can make judgement to apply for next ILR application. But I am not sure about it as if the reply comes negative (i.e. after 3 years) then wont it be recorded and make any application after 4 months as suggested by Jami even weaker?
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Postby sushdmehta » Thu Nov 17, 2011 5:49 pm

1. If you make an in-time and valid application for extension, your Tier 1 (General) leave will remain extant, under Section 3C, even after the date of expiry. So, the assertion of the UKBA contact centre staff that a reconsideration request (if it is to be believed, that is) will delay your extension application will have no effect on your legal right to live in the UK and continue your employment.

2. A statement in a letter cannot override the law or policy. Any such statement can be attributed to "typographical error" by the person authoring the letter, as and when required. And you may end up losing money (application fees) unnecessarily.
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Postby jami » Fri Nov 18, 2011 8:06 am

Considering your play safe psyche fallowing sequence can be appropriate:
1. Send reconsideration request as soon as possible – no response is expected but sending it would be advantageous.
2. Send postal application shortly before expiry of leave – as mentioned by sushdmetha due to section 3C stay after expiry of leave and pendency of postal application would be perfectly legal.
3. Start pre action protocol for JR after 2 weeks of sending of reconsideration.

Put off the issue of applying for ILR after 3 months or 3 years of extension for the time as firstly it not urgent issue and secondly would arise only if reconsideration/pre-action protocol for JR fails.

I am sure you would be given ILR before decision of your postal application of extension and you may get refund of extension fee as well. On forum someone has just posted that he had 102 days job related absences at a time and he has been given ILR.

http://www.immigrationboards.com/viewtopic.php?t=90455



Your continuous absence are at par. How UKBA can defend JR on such a deviation from their practice?
Last edited by jami on Fri Nov 18, 2011 9:22 pm, edited 1 time in total.
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Postby ankit.aj » Fri Nov 18, 2011 3:58 pm

Thank you sushdmehta and jami for your messages.

I have today posted the reconsideration-request, and will send the Tier1 extension application next week. Fingers crossed..


-Ankit
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Postby sushdmehta » Mon Nov 21, 2011 4:14 pm

Your queries regarding Tier 1 (General) extension have been moved here.
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Postby ankit.aj » Thu Dec 08, 2011 7:15 pm

As suggested, I have sent the extension application and am in the process for pre-action protocol for JR.

Today I received the reply on my re-consideration request. The key lines reads as:

" Longer absences may exceptionally be aggregated, although they must not be more than three months. Where an absence is work related, evidence is required to show that it would have serious implications for the employer or business if the travel had not been undertaken.
Your absence from - to - was for more than three months, with no evidence been provided of any compelling reasons, or serious implications, as to why you were required to be absent for so long. As a result, you appeared to have broken your continuous residence in the UK. No reason could be seen to allow you to aggregate your leave."

The company letters that mentioned that:
"Consistent with maintaining his employment in the UK, Ankit has made a few shorter business trips in Europe and two such longer visits to our India offices purely on work assignments."

and then somewhat elaborated it.

In the UKBA guidelines, it was mentioned that longer visits could be ignored if they were imperative to maintain UK employment, which my employer did write, but guidelines did not say anything that it should show such a visit is necessary for employer too. Logically, no employer will send someone abroad on its expenditure unless it is necessary for the group. Moreover, in such a letter I believe no large organisation will give details what a person was doing abroad as it will make their work engagements public. Isn't it?

I have couple of questions on this:

a) Is my reasoning/thinking flawed here as I am missing something? Do you think any stuff I should be particularly attentive of while doing pre-action protocol? Any further documents you think that I should send with the notice that may be of help.

b) Clearly, the letter says that my continuous stay is broken. Jami, do you still think that if I am required to apply again for ILR after 3-4 months that will be of any help as this letter may again be documented somewhere in UKBA's records.
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Postby ankit.aj » Thu Feb 23, 2012 9:02 pm

As I have received a few messages on the progress of my case, I have sent notice under (pre-action protocol) and reminder to the notice later, but UKBA did not respond. I will now be filing a court case next week. Fingers crossed!
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