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Hello,

Can someone tell me their thoughts on my situation. I was stationed in U.K. for 3 years as armed forces, then I received official orders to move back USA (against my own choice obviously). I was in US for 18 months until my military contract ended and I returned back to U.K. immediately, like 3 weeks once my contract ended (I have the proof). I have now been in U.K. continuously and have a partner on the spouse visa. Does my situation count as compassionate or extenuating circumstances? Especially since I returned as soon as I possibly could.

It has been 10 years total since moving here and I’m interested in the 10 years long route for ILR.

Former members of the armed forces will normally be granted 28 days leave outside the Immigration Rules when they cease to be exempt on discharge, so they should leave within 28 days in order to maintain lawful continuous residence in the UK.

The problem for you is that you had a gap of 18 months which breaks your lawful continuous residence in the UK under the long residence rules. If you had returned to the UK within 6 months, then your lawful residence would have been maintained, given you left immediately when discharged.

Hi just to clarify, I was still on military contract during my 18 months in the U.S. Would this not be considered under compassion or compelling reasons since it was out of my control? Thank you.

PeterPeter1987 wrote: ↑

Tue Dec 19, 2023 6:38 pm

Hi just to clarify, I was still on military contract during my 18 months in the U.S. Would this not be considered under compassion or compelling reasons since it was out of my control? Thank you.

Discretion is rarely exercised under the long residence route in my experience. I do not see how you can argue that the normal consequence of your life choices, work obligations or life commitments is a compelling reason for why you were absent from the UK for 18 months to be granted ILR in the UK. Compelling compassionate factors are, broadly speaking, exceptional circumstances which means that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family.

Home Office guidance on 10-year long residence ILR applications says: “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”

Yes, I understand. I thought military obligation would be considered “unavoidable circumstances”. I couldn’t just leave US and return back to U.K…or I would literally end up in prison. I didn’t have the choice to move anywhere but where the military put me.

PeterPeter1987 wrote: ↑

Tue Dec 19, 2023 7:14 pm

Yes, I understand. I thought military obligation would be considered “unavoidable circumstances”. I couldn’t just leave US and return back to U.K…or I would literally end up in prison. I didn’t have the choice to move anywhere but where the military put me.

Sure but I guess that is part of your work obligation. I cannot tell you whether the UKVI will exercise discretion or not but just note that they rarely do.

As Zimba states, UKVI rarely grants compassionate or exceptional circumstances. Your military service and your return to the US for 18 months - regardless of the reason, 18 months in a single period is just not going to get consideration. Military service is not treated any differently to any other reason for not being in the U.K.

The choice element - this is a perverse way of thinking - you signed up for military service, you are directed / commanded as required. Choice was never part of the terms and conditions

As you are on a spouse visa currently it will take the normal path and once you meet the five years in country you will be able to apply for ILR.

Even if discretion is used to overlook the 18 month absence, note that it does not lead to ILR, but to (limited) Leave Outside The Rules. And as it will have to be escalated to a senior level for such discretion to be exercised, expect delays in the application.

Paragraph 5.2 of the Long residence caseworker guidance wrote:If the applicant has been absent from the UK for more than 6 months (184 days) in one period or more than 18 months (548 days) 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 184 days:
  • 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
  • you must also consider the reasons for the absence

• for overall absences of 548 days in the 10 year period:
  • 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
  • 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
  • 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.