Outside UK more than 180 days due to UKVI Fault

Hello I need help and would appreciate if someone can provide guidance.

I’ve been on various visas in the UK and have never breached any immigration rules. I initially arrived the UK in January 2010. I would have clocked my 10 years in January 2020. In December 2019 I left the UK before my then valid Visa expired and applied for a dependant Visa from my home country. The visa was refused for a totally wrong reason so I requested an Admin review. Eventually the Admin review was successful and I was granted a dependent Visa in September 2020. Unfortunately the mistake from UKVI meant that I stayed outside the UK for more than 180 days. This alone has discouraged me from applying for ILR and risk losing my very high application fees if they refuse it based on the 180 day rule.

Has anyone else been in a similar situation and what was the outcome. I know UKVI can be very mean and I suspect they will refuse a person a Visa even if the reason for the refusal was their fault. Any help or advise will be really appreciated.

You should ask for discretion to be applied in your case. There is no guarantee but you may be granted ILR under long residence if the long absence was not your fault. Did you apply for a new visa soon after leaving the country?

I'm going to disagree with @Zimba about the outcome of asking for discretion.

I think, from my reading of the Long Residence caseworker guidance, specifically pages 11-12, that the 180 day absence from the UK is a hard limit.

When discretion is exercised in such cases, the outcome will likely be LOTR (Leave Outside The Rules), not ILR.

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.

Also, as the discretion must be exercised at a more senior level than the caseworker, it is likely that your application will take longer than average.

Zimba wrote: ↑

Wed May 12, 2021 11:04 am

You should ask for discretion to be applied in your case. There is no guarantee but you may be granted ILR under long residence if the long absence was not your fault. Did you apply for a new visa soon after leaving the country?

Thanks a lot Zimba. I’ll include the request for discretion in my cover letter. I just hope that request won’t further make them feel that I’m in the wrong.

Yes I applied for a new visa as soon as I left because I would have been short of about a month for me to reach my 10 years criteria under my previous visa.

secret.simon wrote: ↑

Wed May 12, 2021 3:04 pm

I'm going to disagree with @Zimba about the outcome of asking for discretion.

I think, from my reading of the Long Residence caseworker guidance, specifically pages 11-12, that the 180 day absence from the UK is a hard limit.

When discretion is exercised in such cases, the outcome will likely be LOTR (Leave Outside The Rules), not ILR.

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.

Also, as the discretion must be exercised at a more senior level than the caseworker, it is likely that your application will take longer than average.

Thanks for your response secret.simon.

I read that same guidance and at page 11, at the second to the last paragraph, it says: “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.”

In this case, it was an unavoidable circumstance because the UKVI made a mistake which prevented me from returning to the UK. Further down it also says the caseworker should consider if the applicant returned as soon as possible. I returned 5 days after I received the Visa.

On the second aspect you mentioned, I suspect that they might give me leave outside the rules if successful.

Is there any thing like leave outside the rules for ILR or it must be the 5 or 10 year route only? Because that would mean a waste of 10 years struggling to get another 10 years again.

What was the reason the pbs dependent visa was initially refused?

Hi there, did the HO accept your exercise discretion? I had the same situation as you.