ILR refusal due to absences but under consideration. Help!

[mcmill]

Hi

I wonder someone can please help. I applied for ILR at Croydon PEO today but the case worker told me that my application is refused but under medical grounds, she will forward the application to Refusal Officer for consideration to get further extension but ILR is refused.

I applied under HSMP Forum Judicial review. I had two absences in five years - 2008 (37days) and in 2009 (123 days). Both absences were due to my spouse's ill health and treatment overseas as NHS treatment was not successful. The case worker took the medical evidences, GP letter, recent 3 months payslips, passports, and recent 3 months bank statments but refuse take the payslips and bankstatments for the absence period. I was fully paid during both absences. She said that it may take more than 2 weeks to decide.

I have called a few solicitors. Some said to wait until I receive the refusal letter and right to appeal but one solicitor said to write a letter to homeoffice now saying that why they did not accept my ILR due to medical emergency.

I wonder someone can help me to decide what shall I do. Also, can we apply once again in case I receive refusal and I do not get right to appeal.

thanks

[Obie]

2.3 Discretion in cases where continuous residence has been broken
Time spent here may exceptionally be aggregated, and continuity not insisted upon, for cases
where:
• there have been no absences abroad (apart from those described in para 5.1 above) and
authorised employment or business here has not been broken by any interruptions of
more than three months or amounting to more than six months in total for the whole five
year period. Decisions in such cases must be taken at HEO level or above.
or
• there have been longer absences abroad, provided the absences were for compelling
grounds either of a compassionate nature or for reasons related to the applicant’s
employment or business in the United Kingdom. Where continuous residence has been
broken, periods may be aggregated or shortfalls disregarded only with the approval of an
SEO or Grade 7.
This discretion only applies where the continuity of residence has been broken due to
absences abroad. It does not apply where the lawfulness of residence in the UK has been

I think you should be fine. If in the unlikely event of you being rejected, you will be given a right of appeal if you don't currently have any leave to remain, apart from Section 3C leave.

[jami]

What is the validity date of your current visa?
If they give you extension to aggregate absences than you would be lucky one - may be the first instance on this board.

[mcmill]

Thanks for the quick response,

My Visa is expiring in 15 Dec 2011,

Let me correct myself what I was told at PEO, I was told that my ILR was refused on the grounds that I was away for more in 90 days in one stretch. However, as the absences was because of medical reasons the refusal team “might” consider giving a visa that will give me the time to do another 5 years i.e. will consider giving 3 years Tier1 visa again that make me eligible to apply for ILR again after the end of that period.

But it is not sure if they will be giving this visa or not as it was entirely with the Refusal team to decide.

As my visa is expiring in 4 weeks time, I am not sure if I should withdraw my application and apply for Tier1(HSMP) extension again if possible.

I have following question:
1) Can another extension for Tier1 (HSMP) be made, or is there a limit on the number of extensions?
2) If I can apply, then does it need to be before my visa expires?

Please advice me if it would be good to withdraw the application just before 2 weeks of visa expiry and apply again or to wait for their response which might take more than 4 weeks in which case my visa expires.


Many Thanks

[Obie]

I believe that under your circumstance, ILR should be granted on the basis of the discretion conferred on the caseworker. They should not give you an extention in my view. As you made an application before your leave expired, the condition of your leave will continue to exist whiles your application is been decided under section 3c of the immigration act 1971 and you will have a further leave under section 3d if the matter went to court. I strongly belueve it wont go that far

[farah]

During pendency of your ILR application one can apply for extension and fee paid towards ILR would be treated towards extension.

If one applies for extension after refusal of ILR than one would have to pay fee for extension. One may seek as many extensions as one may want.

Better for you to wait for ILR decision or 10th Dec whichever is earlier for your next course of action. Withdrawing ILR application would not be prudence as it may succeed.

[mcmill]

Thanks you all, this is very helpful information. I will update my position in two weeks time.

In the mean time can someone please give me details of good immigration solicitors in London.

Many Thanks

[Obie]

I dont think lawyer at this stage is necessary as it will be costly and there is not much difference they can make at this stage.

If however ILR is refused, and the discretion conferred on them to overlook absence in cases like yours is not exercised in your favour, then a lawyer may be necessary.
I could give you assistance if it came to that

[mcmill]

Thanks Obie, much appreciate it. Will update you all in few weeks time

Thank you all for your support

Kind Regards

[mcmill]

Just as a second thought, will it be advisable to put a complaint form on the following grounds:

1) The officer did not took any documents such as: Life in the UK, Cohabitation proof, P60s, Employer's letter, Payslips and Bank statements covering the period I was absent. I did asked her if she require these documents to pass it on to refusal team, but she said its not required and returned the Bank statement and payslips covering the gap period as well.

2) Did not mentioned nor did we notice that this decision was made by a Senior Immigration Officer, as my understanding was in my case a decision should be made by a senior officer. It appeared to me that as soon as she noticed that it is more than 90 days in one stretch she straight away refused the ILR and said will pass it over to refusal team with very limited documents ( medical proofs and 3 months payslips and Bank statement nothing else).

3) Did not ask any questions nor did give any options to explain the situation. Just was in rush to close the case.

Please advice

Many Thanks

[jami]

Latest feedback indicates that case worker did not consult senior for using discretion. This is contrary to normal procedure/published guidance and as such not fair. Moreover case worker should have obtained/retained documents mentioned by you especially if case was being sent to refusal team.

As per an earlier instance on this forum case worker said similar things to applicant but the application was not refused by refusal team rather he received approval after some weeks. But in your case he has not obtained/retained documents in support of our claim. Hence complaint lies against the standard of service you received and/or professional conduct of staff.
Rest assured on filing politely worded compliant you would not be in any further adverse situation in which you are already in rather chances of getting approval would increase.

Blew is related topic for sending compliant:
http://www.immigrationboards.com/viewtopic.php?t=90701

[mcmill]

Hi All,
I got the response back by post, I states that my ILR has been refused, but after 4 months time I can again apply for ILR. So they asked me to apply for FLR.

My friend just got his ILR approved, same case like me but away for 9 months in one go. So it is clear that there is no clear rule followed, and depends on caseworker, which I feel is bit unfair.

Anyway, I want to apply for extension now but it seems there are no PEO appointments for atleast 2 months from now. Please send me the details of anyone who can help me to get the same day service and represent my case for FLR (Tier1) HSMP extension. I did approach few solicitors but no one had dates at least for 2 weeks.

My visa is expiring 15th Dec.

Many Thanks

[innocentdevil]

Hi All,
I got the response back by post, I states that my ILR has been refused, but after 4 months time I can again apply for ILR. So they asked me to apply for FLR.

My friend just got his ILR approved, same case like me but away for 9 months in one go. So it is clear that there is no clear rule followed, and depends on caseworker, which I feel is bit unfair.

Anyway, I want to apply for extension now but it seems there are no PEO appointments for atleast 2 months from now. Please send me the details of anyone who can help me to get the same day service and represent my case for FLR (Tier1) HSMP extension. I did approach few solicitors but no one had dates at least for 2 weeks.

My visa is expiring 15th Dec.

Many Thanks

Send a postal application. Good luck

[farah]

UKBA has acted smartly in their interest.
They have issued you formal refusal very promptly (within a week) before expiry of your visa on 15 Dec.2011 so that you do not get right of appeal and they get additional fees.
Normally refusal of case dealt at PEO is received after 4 weeks.
There is no uniformity of treatment as UKBA guideline is very general in nature.

[jami]

Instead of paying premium fee for FLR Tier 1 (HSMP) as well as fee of solicitor it would be better to send postal application. Postal FLR Tier 1 (HSMP) is normally decided within 4 weeks. PEO staff is not well versed with FLR Tier 1(HSMP) as now such cases are very rare at PEO.

In addition send reconsideration request citing the case of your friend etc praying either ILR or FLR (aggregating absences as per guideline) should have been granted. Different decisions in same facts and circumstances are weak point of UKBA.

Then send notice for JR. UKBA would submit to that.
Be smart like UKBA.