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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.
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.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?
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).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
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.
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.
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.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.