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Gap year 10 year long residence
Posted: Wed Jan 15, 2020 1:52 am
by Britonk
Hello, I was not aware until recently that discretions on compassionate grounds would be accepted for the continuity clause for the ilr application.
I have been in the UK since 2009 as a student but I took a gap year between secondary school and university (from 2016 july till 2017 september) to spend time with my dying grandma in Korea, who in fact passed away two weeks after I left for University in 2017. I am bound to graduate in 2020 july and I am wondering if such reason would be a compassionate clause that would validate my application.
Would it be worthwhile to get a lawyer and apply with a letter or am I disillusioned that this would even be possible?
I would appreciate any advice. Thank you.
Re: Gap year 10 year long residence
Posted: Wed Jan 15, 2020 2:14 am
by secret.simon
Continuous residence is broken by an absence of more than 180 days.
Given that your absence was just under 500 days, even with a letter, relying on discretion will be quite risky.
And even if discretion is exercised, you will likely not get ILR, but either an FLR(FP/LR) or LOTR (Leave Outside The Rules) for 2.5 years.
Long Residence guidance for case workers wrote:(Page 11)
If the applicant has been absent from the UK for more than 6 months in one period or more than 18 months in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.
This must be decided at senior executive officer (SEO) level with
a grant of leave outside the Immigration Rules being the appropriate outcome.
Things to consider when assessing if the absence was compelling or compassionate are:
• for all cases – you must consider whether the individual returned to the UK within a reasonable time once they were able to do so
• for the single absence of over 180 days:
o you must consider how much of the absence was due to compelling circumstances and whether the applicant returned to the UK as soon as they were able to do so
o you must also consider the reasons for the absence
• for overall absences of 540 days in the 10 year period:
o you must consider whether the long absence (or absences) that pushed the applicant over the limit happened towards the start or end of the 10 year residence period, and how soon they will be able to meet that requirement
o if the absences were towards the start of that period, the person may be able to meet the requirements in the near future, and so could be expected to apply when they meet the requirements
o however, if the absences were recent, the person will not qualify for a long time, and so you must consider whether there are particularly compelling circumstances
All of these factors must be considered together when determining whether it is reasonable to exercise discretion.
Re: Gap year 10 year long residence
Posted: Wed Jan 15, 2020 10:11 am
by Britonk
Is the application risky because the break was over the 180 days by a lot?
If so, what kinds of reasons are accepted for over-180 days absence? Would there be a way to make my case stronger?
Re: Gap year 10 year long residence
Posted: Wed Jan 15, 2020 10:49 am
by CR001
Is the application risky because the break was over the 180 days by a lot?
Yes.
If so, what kinds of reasons are accepted for over-180 days absence? Would there be a way to make my case stronger?
Not sure there is much. Members have been refused for substantially exceptional compassionate reasons, ie parent dying of cancer is one I recall and and a couple of members who studied in the UK as a child and progressed to other visas but having spent each holiday back home when under 18 was also refused for excessive absences and failing to meet the absence limit requirements.
Re: Gap year 10 year long residence
Posted: Wed Jan 15, 2020 12:10 pm
by Britonk
Thanks a lot for the help.
When you say risky, do you mean like 30 percent chance of success or 5 percent? Has there been cases where applicants have been successful with the compassionate reasons?
If it's too unlikely, I shouldnt apply right?
Re: Gap year 10 year long residence
Posted: Wed Jan 15, 2020 12:17 pm
by CR001
When you say risky, do you mean like 30 percent chance of success or 5 percent? Has there been cases where applicants have been successful with the compassionate reasons?
95% if not higher, chance of refusal. None that I have seen on the forum in recent years.
If it's too unlikely, I shouldnt apply right?
Depends how risk averse you are if you have that level of money to lose because you don't get a refund if you are refused, you lose the entire fee paid.