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10 year ILR: Discretion on absences

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

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david086
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10 year ILR: Discretion on absences

Post by david086 » Thu Aug 15, 2019 10:51 am

Hi all,

I am in the process of preparing for a possible 10-year ILR / SET(LR) / long-residence ILR application, but have a few too many absences. Has anyone here had success with excess absences and discretion on that? All the posts I've found on the topic were from rejected applications, but I'm sure there must be instances where discretion was granted too.

Specifically, I'm looking at about 150 extra days due to (absolutely essential) PhD fieldwork, in one long trip. Several other trips were also school related, but even discretion on that one trip would bring the absences below the limit. I had a chat with an immigration lawyer a few days ago who said that they had previous cases with similar circumstances where discretion was granted. But I've not found any examples of something like that on here, and I was under the impression that discretion for ILR was very rare and only possible in very exceptional situations. I wonder if the lawyer maybe confused the 10yr ILR with some of the 5yr routes where work absences don't count, I think. So I wanted to check / hear others' thoughts before potentially wasting a lot of money on the applicatoin.

Has anyone here applied in a similar situation, and how did it go?

Thank you all so much!

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Re: 10 year ILR: Discretion on absences

Post by CR001 » Thu Aug 15, 2019 10:58 am

Discretion for excessive absences are very rare for Long Residence ILR applications.

So besides the 540 days in the whole 10 years, any absence of 180 days more also disqualifies you. You don't say how long your one long trip was??

Re your comment about work absences on 5 year route not counting, this is not correct for certain visas where all types of absences count.

Having said that, thought you were applying through the EU Settle/Pre Settle Scheme?

eea-route-applications/lounes-case-pre- ... l#p1806502
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Re: 10 year ILR: Discretion on absences

Post by david086 » Thu Aug 15, 2019 11:19 am

Thank you! I thought so too. Are there any cases of successful applications with discretion?

The one long trip was 150 days. Without it, I am just below the 540 day limit. No absences of over 180 days.

Ah, yes, I don't know specifically about the 5 year routes as they don't apply to me, I just vaguely know that for some applications work absences count differently and thought maybe that might have been a mixup.

I have indeed applied for the settlement scheme, but only for pre-settled status. It will be another four years before I qualify for settled status, as I only switched to an EEA residence card a year ago, while I will have been in the UK for 10 years in a few months. So if it is possible, I would prefer to get the 10 year ILR rather than wait another four years.

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Re: 10 year ILR: Discretion on absences

Post by CR001 » Thu Aug 15, 2019 11:22 am

What is your relationship to your EU sponsor and for how long??
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Re: 10 year ILR: Discretion on absences

Post by david086 » Thu Aug 15, 2019 1:17 pm

Unmarried partners, living together for about 3 years now. Does that make any difference though? I thought 10yr ILR was independent of my sponsor.

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Re: 10 year ILR: Discretion on absences

Post by CR001 » Thu Aug 15, 2019 1:22 pm

david086 wrote:
Thu Aug 15, 2019 1:17 pm
Unmarried partners, living together for about 3 years now. Does that make any difference though? I thought 10yr ILR was independent of my sponsor.
Was asking as if you had been married, your time under the EEA route would have started from date of marriage if you married in the UK.

Unfortunately this doesn't apply to unmarried partners.

Is your partner still (and has been) exercising treating as a qualified person since you held the RC??
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Re: 10 year ILR: Discretion on absences

Post by david086 » Thu Aug 15, 2019 2:07 pm

Ah, right. No, unfortunately settled status really is four years away for me, we already double checked that.

My partner has had permanent residence for several years and a DCPR. So as far as I understand the qualified person criteria per se don't apply anymore, she just has to make sure she maintains permanent residence status. But that's just a matter of not spending more than two years outside the UK, which she hasn't, and won't. Right? She would also still be a qualified person I think, in case I got the PR criteria wrong.

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Re: 10 year ILR: Discretion on absences

Post by CR001 » Thu Aug 15, 2019 2:11 pm

For ILR under long residency, if you take the risk, you have to include evidence of your EU partner being a qualified person and this usually entails evidence of residence and work etc.
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Re: 10 year ILR: Discretion on absences

Post by david086 » Thu Aug 15, 2019 2:34 pm

Oh, right, are the rules here different? Because time as an EEA family member technically also counts as a discretion by the home secretary here, right? Huh. Thank you for pointing that out, that hadn't occurred to us. This should be okay though. Plus, I imagine pre-settled status doesn't require this, since it's a domestic immigration status, not an EEA thing? So it would only be for the time between my previous visa expiring, and when I got pre-settled status.

Anyway, to get back to the original question: So in your experience, asking for discretion regarding my absences would indeed be a risk? Do you know of any resources that might help in figuring out what counts as compelling reasons, so we can gauge if it's worth spending 2.5k on it?

Thank you so much for all your answers! Really appreciate it.

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Re: 10 year ILR: Discretion on absences

Post by CR001 » Thu Aug 15, 2019 2:42 pm

When did you previous visa expire and when did you get an RC as an unmarried partner or Pre Settled status??
Anyway, to get back to the original question: So in your experience, asking for discretion regarding my absences would indeed be a risk? Do you know of any resources that might help in figuring out what counts as compelling reasons, so we can gauge if it's worth spending 2.5k on it?
Yes it is a risk. Members have been refused even for extremely compelling reasons for absence, i.e. parent dying of cancer and also a few under 18 year olds who were here in boarding school and going home for holidays and exceeding the 540 days, for example.
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Re: 10 year ILR: Discretion on absences

Post by secret.simon » Thu Aug 15, 2019 4:50 pm

david086 wrote:
Thu Aug 15, 2019 2:34 pm
Do you know of any resources that might help in figuring out what counts as compelling reasons, so we can gauge if it's worth spending 2.5k on it?
See Page 10-11 of the Long Residence Guidance.
Long Residence Guidance wrote: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
As you can see, the most likely outcome of discretion being exercised is not ILR(LR), but (limited) LOTR (Leave Outside The Rules).
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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Re: 10 year ILR: Discretion on absences

Post by david086 » Fri Aug 16, 2019 10:09 am

CR001 wrote:
Thu Aug 15, 2019 2:42 pm
When did you previous visa expire and when did you get an RC as an unmarried partner or Pre Settled status??
My previous visa expired or would have expired only a few weeks ago, around the same time I was granted pre-settled status. Not sure if that counts though, or if the visa automatically got cancelled when I got the EEA RC. They didn't return my BRP after the EEA RC application, but since it's two different things I'm not sure how it works legally.

Anyway, are you sure my sponsor would have to show employment etc., even if she already has PR/DCPR? I thought the point of that requirement was only to make sure an applicant was in the UK legally, which I have been as long as my sponsor maintained PR.


secret.simon wrote:
Thu Aug 15, 2019 4:50 pm
See Page 10-11 of the Long Residence Guidance.

As you can see, the most likely outcome of discretion being exercised is not ILR(LR), but (limited) LOTR (Leave Outside The Rules).
Oooh. Thank you for pointing that out. I had read that guidance before, but since Leave Outside The Rules didn't mean anything to me, that didn't stand out to me. Now that I've read up on that, that really does seem to change things significantly. Is the general guidance on Leave Outside The Rules relevant here as well then? ( https://www.gov.uk/government/publicati ... tion-rules ) If so, then indeed the bar for that looks to be exceptionally high.

And you're saying that usually they would then only grant limited leave to remain? Then the whole thing would be pointless anyway, since I have leave to remain via pre-settled status anyway. The point of ILR would only be so I can apply for naturalisation sooner.

Thank you both, this has all been really helpful!!

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Re: 10 year ILR: Discretion on absences

Post by CR001 » Fri Aug 16, 2019 10:12 am

My previous visa expired or would have expired only a few weeks ago, around the same time I was granted pre-settled status. Not sure if that counts though, or if the visa automatically got cancelled when I got the EEA RC. They didn't return my BRP after the EEA RC application, but since it's two different things I'm not sure how it works legally.
Exact dates of when your visa expired and what date you applied and were granted pre-settled status under Appendix EU is important. If there is a gap in your residence, you won't qualify for ILR LR anyway.
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Re: 10 year ILR: Discretion on absences

Post by david086 » Fri Aug 16, 2019 10:38 am

There is no gap, I am sure of that. I won't post personally identifying information, but the rough timeline is:
Tier 4 visa until late June 2019
October 2018 applied for EEA RC, granted November 2018
April 2019 applied for pre-settled status, granted early June 2019

I am only curious if the tier 4 visa would still count as valid until its original expiration date, then I don't even need to rely on EEA rules for any period. Or if it would be considered void from the date I got the EEA RC. In the latter case there would still be no gaps (not even close as you can see), just that then between November 2018 and June 2019 I would rely on EEA rules. (I assume that for the period after pre-settled status was granted, I wouldn't be relying on EEA rules anymore in any case.)

Any thoughts on exercising treaty rights when my sponsor already had PR?

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