ILR Refused !!

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ILR Refused !!

Postby alwayslearning » Sat Aug 06, 2011 1:19 pm

Hi All,
I applied for ILR in January 2011 based on 5 years continious employment as a work permit holder, my application was refused by Home office in March 2011 citing conitnious absence of more than 90 days, I was absent for over 150 days in 2006 due to medical reasons.

I travelled to India for a holday in 2006 for an intended period of 30 days (got employers evidence for the inital leave request) but had to extend my holiday for additional 3.5 months as I met with an accident during the period which resulted in fractures (got all the related medical evedence), home office refused my application but allowed to accumulate the absence which allowed me the eligibility to apply for ILR again in May 2011

I appealed on the decision and the judge ruled that my appeal is dismissed under immigration rules but allowed on human rights(May 2011). As I appealed on the Home office descision of my ILR application and the judge allowed my appeal I expected home office to grant me ILR but instead they issued me a residence permit for 3 years

can anyone explain where I stand, surely the appeal was allowed on my ILR application so I should get ILR but cant quite understand why I was granted a 3 year permit and how to approach.

Thanks in advance
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Postby vinny » Sat Aug 06, 2011 1:45 pm

It sounds like they granted discretionary leave on the basis of human rights.
Please click on any given links for further information.

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Postby jami » Sat Aug 06, 2011 3:24 pm

It appears that you had flied appeal before First-tier Tribunal (Immigration and Asylum Chamber) which was allowed on human rights grounds.

Unless UKBA has appealed against the decision before Immigration and Asylum (Upper Tribunal) they were obliged to implement the determination of First -tier Tribunal and grant you ILR instead of FLR.

If UKBA has not filed appeal than it is an error on their part of granting you FLR instead of ILR. Confirm filing of appeal from Upper Tribunal and in case no appeal has been filed than write a letter to the same team/office who have granted you FLR, pointing out the error. I am sure they would rectify it.

Tribunal adverse decision on your absences is not a good news as reason was compassionate and there was substantial evidence.
Can you post details in this regard preferably on this board or through email/PM.

Another aspect is that you did not apply at PEO where one can explain his case better. It is strange that judge was not convinced. In the blew case due to medical reasons 5 months absence at a time was ignored at PEO:
http://www.immigrationboards.com/viewto ... highlight=
Last edited by jami on Sat Aug 06, 2011 7:19 pm, edited 2 times in total.
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Postby Greenie » Sat Aug 06, 2011 5:52 pm

jami wrote:It appears that you had flied appeal before First-tier Tribunal (Immigration and Asylum Chamber) which was allowed on human rights grounds.

Unless UKBA has appealed against the decsion before Immigration and Asylum (Upper Tribunal) they were obliged to implement the determination of First -tier Tribunal and grant you ILR instead of FLR.

If UKBA has not filed appeal than it is an error on their part of granting you FLR instead of ILR. Confirm filing of appeal from Upper Tribunal and in case no appeal has been filed than write a letter to the same team/office who have granted you FLR, poiting out the error. I am sure they would rectify it.

Tribunal adverse decsion on your absences is not a good news as reason was comasionate and there was substantial evience.
Can you post details in this regard preferably on this board or through email/PM.

Another aspect is that you did not apply at PEO where one can explain his case better. It is strange that judge was not convinced.


It is not an error on Ukba's part. The op did not qualify for ilr under the immigration rules-the tribunal agreed with ukba in this respect. The appeal was instead allowed on human rights grounds-presumably article 8 and therefore discretionary leave is the correct grant of leave. Just because an appeal succeeds doesn't mean the leave originally applied for will be granted. It depends on which grounds the appeal is allowed.
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Postby jami » Sat Aug 06, 2011 6:31 pm

It was not an appeal against deportation order wherein UKBA could grant FLR in pursuance of favorable order. Rather it was appeal against rejection of ILR. Hence there appears to be either an error or discretionary FLR has been given independent of appeal order . Lets wait.
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Postby Greenie » Sat Aug 06, 2011 7:20 pm

jami wrote:It was not an appeal against deportation order wherein UKBA could grant FLR in pursuance of favorable order. Rather it was appeal against rejection of ILR. Hence there appears to be either an error or discretionary FLR has been given independent of appeal order . Lets wait.


you are wrong.

The appeal was against the refusal of ILR as the UKBA considered that the appellant did not qualify for ILR under the immigration rules.

The Immigration Judge agreed that the appellant did not qualify for ILR under the immigration rules, but instead found that removal would breach his human rights. Discretionary leave is the correct grant of leave in these circumstances.

Similarly, if a person applies for leave to remain under the immigration rules as the spouse of a settled person, but does not qualify under the rules, a judge may dismiss the appeal on the immigration rules but allow it on human rights grounds - in which case again a grant of discretionary leave outside the immigration rules, and not a grant of 2 years leave under the rules would be appropriate.
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