Absences exceeding 180 days

I came to the UK in 2009 as a Tier 1 (General) migrant. After exploring suitable employment/business opportunities I decided to be employed as a Consultant with a partner through a company registered in the UK. My job involved extensive overseas business travel and hence I exceeded the 180 days of allowed absence during a year. This was not a worry until the Immigration Rules changed in 2012. Even if I had come to know of this change on a timely manner I would have had an issue with complying with the same since the company had ongoing contracts. I was confident the excessive absences will be waived off exercising powers vested with the Home Secretary since the absences are purely related to business travel; my family (wife and 4 children) are permanently in UK; my family lives in a home which I jointly own with my wife; the children can prove to be valuable citizens (the eldest is a Medical Doc, the second is a final year medical student etc. all paying international fees); and last but not the least I have fulfilled the rest of the criteria including earnings and paying tax on this during the last 5 years. Hence, my absence in substance has caused no damage to the UK economy. However, my recent ILR application has been refused based on absences and also was advised the discretion is no longer available. Looks like my situation has been unfairly affected due to frequent changes in Immigration Rules. Although I can now reduce my absences not to exceed 180 days per year, due to the limitation of Ieave I have to remain in UK (until 2017) this cannot be corrected. Do I have a recourse? Should not my application be reviewed applying rules prevailing at the time I arrived (since my business strategy was based on the said rules)?
Thank you

Give the exact dates of absences from 2010 onwards?
You don't say which immigration category you are currently in?
On what date does your current leave expire?

Should not my application be reviewed applying rules prevailing at the time I arrived (since my business strategy was based on the said rules)?

No, Home Office realized that error they had made on 07-Nov-2006 (that's when HSMP scheme was abolished and PBS scheme was introduced).

Thank you for the prompt response. As per refusal letter absences are as follows: 8/14 to 8/15 - 210 days; 8/13 to 8/14 - 263; 8/12 to 8/13 - 254; 8/11 to 8/12 - 275; 8/10 to 8/11 - 263. These absence are not at one go. I have been travelling in an out of the country several times. They were all paid for and purely on business except for 2 very short holidays during the last 5 years. I have a severe orthopaedic problem resulting from a very old motor car accident. The Royal Orthopaedic Hospital has recommended hip replacement, but I have managed to survive with Ayurvedic treatment. I have used my paid business travel for this purpose too. (As you may know Ayurvedic treatment requires frequent interaction with the physician). I submitted adequate evidences with regard to this too along with my application. I am currently in the UK as a Tier 1 Skilled (General) Migrant. My current leave expires in August 2017. Although ignorance of law/rules is not an excuse I based my business strategy on the rules prevailing at that time. Thereafter, I was also made to believe the absences could be subjected to discretion due to reasons I have already mentioned.

IMHO, multiple issues:
1. You have exceeded the limit in each and every year of the qualifying residential period.
2. It is easy to claim personal absences from UK as work related when self-employed / operating as a business entity, so HO is always extra cautious and such application come under greater scrutiny.
3. It is easy to claim personal travel expenses as expenses for business travel.
4. To undergo ayurvedic treatment was a voluntary decision at your end, whereas the UK doctors recommended a hip repalcement which would have been done free of cost to you under NHS and without the need for you to travel outside the UK to see your physician regualry.

Given that you had provided all the evidences you thought adequate to explain the reasons of your absences from UK and yet discretion was not applied, it is highly unlikely that a new application will have a different end result without new and compelling evidences.

Thank you. Do I have any option???

Only one I believe - Switch to a different immigration category that you qualify for.

In fact, I have been considering Tier 1 (Entrepreneur) option for a while. However, since Immigration Solicitors / Consultants keep advising me that I have a chance given that my circumstances are exceptional, I have put it on hold. As mentioned before the company had ongoing contracts entered before the rules changed, and termination may lead to violation of terms; have paid taxes (both corporate and personal) including payments made to local consultants (who in turn would have paid taxes); there is revenue generated locally too. Hence, the business is not simply to stage employment. It is real. Also some of the contracts are with world class companies. With regard to medical I have a generous insurance cover. Hence, I need not necessary get the hip replacement done free covered by NHS. However, I decided against it, since hip replacement can have severe side effects, and if I can manage without it let me do it as long as this is possible. In fact, I submitted all my medical reports as old as ones received just after the accident 25 yrs ago. Therefore, this is also not something staged.
Given the above, will a judicial review help?
Are you someone conversant with Tier 1 (Entrepreneur) applications? If you are, I am willing to engage you for further advice. Please let me know your email id. Thank you.

There was no intention in any of my reponses to suggest that anything was staged. I wrote from the POV of Home Office as to the possible reasons for not applying discretion.

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision - not applying discretion may not be considered unlawful, it is after all "discretion". So I am not sure if it will help.

I am really sorry for not expressing myself clearly. I didn't in anyway mean that you understood that I staged my business travel / sickness etc. What I wanted you to know was if HO had closely looked into my circumstances they would definitely know that they are genuine. There are lot more genuine reasons to evidence my absences and factors to prove making UK as my home. In fact, I live in a house which I purchased outright spending about £300k. If I only knew my genuine circumstances would not be acceptable, I could have used these funds to switch to the entrepreneur category. While thanking you for clarifying judicial review may be a waste of time and money, please let know if you possess knowledge of the entrepreneur category so that I can engage you for further advise.

If you think you may not be the right person to advise me please feel free to recommend someone who can assist me. Thank you.

Judicial Review isn't an appeal, but a review of a decision to see if that decision is lawful or not. In this case, you'd need to show that it was an irrational refusal by the Home Office, and that would be very difficult. I can see why you think the Home Office has taken an unnecessarily harsh view of your absences, but nevertheless, you have been out of the UK for well over 180 days each year and the Home Office will say at a JR that they were entitled to refuse you. JR is expensive and time-consuming, so should only be done where there are really good prospects.

Many thanks Amanda for the comprehensive reply. I believe I have been unfairly affected due to frequent change in rules. In fact a colleague of mine was successful despite the excessive absences. I was seeking advice from him and engaged his consultant since my case is similar. Unfortunately the consulatnt migrated and I was not aware of the changes until I made the application. If not I could have corrected the absences.

I was speaking to another consultant who suggested that I should apply for discretionary leave. Is this an option.

aru123 wrote:I was speaking to another consultant who suggested that I should apply for discretionary leave. Is this an option.

On what basis do you think you will qualify for discretionary leave or leave outside the immigration rules?

The changes in the Immigration Rules come thick and fast, and often affect people in adverse ways.

I totally see why you think it's unfair. Unfortunately, the courts have held many times that it's the Rules at the time you apply that matter, with rare exceptions, where the HO has promised to deal with future applications in a particular way.

It is the applicant's responsibility to keep up to date with the changes in Immigration Rules, which take place, on an average, two-four times a year.

That is one reason that I haunt these forums, to keep abreast of developments in immigration laws.

Thank you all shedding further light into my issue.