ILR application refused

[aisikitesi]

Hi all,

I had an HSMP visa for one year from Apr 2006 to Apr 2007, and upon expiry of that as I was not eligible for renewal because of higher points required I successfully got a Tier 2 WP for 5 years which has now expired on 24/4/12. In Jan12 I gave my documents to my solicitor for an ILR application and she complied the application and lodged it in March 12, just over a month before it ran out, so within good time.

I had applied in person in March for same day decision but the officer said it was a senior level decision due to overstay outside UK. My solicitor has been informed today that the application has been refused; she is still awaiting the official notification with the reasons of refusal.

My main overstay was for 178 days in 2009 at a stretch in India. I had basically gone for a holiday and then came to know of an orthopaedic surgeon who had successfully done operations to rectify polio deformities. I had polio since birth in one leg and the foot had not been resting flat as normal while walking, I was literally landing on the small finger on that leg. For 36 years I endured quite a lot of pain while walking so naturally I went ahead for this surgery, and was in a plaster cast and then post recovery rehab etc so stayed a total of just under 6 months as return to UK was not feasible. I submitted the Xrays and medical evidence regarding the surgery. During this time away, I was still in touch by phone and email with my employer so was considered working away from home by my employer and was paid in full.
I also had some 50 scattered days out for business trips and short holidays, though not in 2009, but in the other years. And then in the last 12 month before the application I was out for only 11 days.

I submitted payslips as required including for the months of 2009 in my application. Though no reason is available at present as I await the notification letter, I believe its the days out that have been the reason for refusal.

My solicitor has advised that she shall appeal once the full facts are known.

I would like to ask the knowledgeable members here, on what my chances are of succeeding in an appeal, possible on compassionate grounds or otherwise. And if decision on appeal is not in my favour, do I stand a chance of applying for Tier 2 again, and if so can I use the latter part of 2009 (after which I have not spent much time outside) to add up with a fresh Tier 2 so that I can apply for ILR earlier instead of strating afresh and apply in say 2018.

Many thanks for the help.

[Lucapooka]

Was this op not available in the UK? Did you remain on the payroll of the company throughout your entire period?

[asim72]

Did you explain all that you have mentioned in your post, with your ILR application?

[ramay]

Hi aisikitesi!Wich Peo you aplied?It took 3 months?

[aisikitesi]

Hi all,

To answer your questions:

The operation could be possible here, I believe, either privately at a high cost where I could choose the surgeon, or under NHS totally free but where I would have had no control over which surgeon would do it and what his success history was, By doing it in India, the surgeon who did it has a 35+ year success rate and specialises in all kinds of ortho ops only. Comes highly recommended and charges fairly high by local standards (but for me going from here the whole op and post op totalled only £1400 + travelling, which if I did privately here would simply require adding another zero at the end). The success of the operation is unquestionable hence I have no regrets doing it.
I knew then that I would overstay by doing it but if the pain in walking since birth could be eliminated by a surgery, I had to do it at the expense of an overstay, just in case the same surgeon for whatever reason was not available later.
The reassurance I had was that at the time my Tier 2 was issued my solicitor had advised that for the first 4 years I would get a 3 month allowance outside stay per year, and I could combine those months but not stay out for more than 6 months at a stretch. In the 5th year I could only stay out 3 months and not combine that with any of the previous years. Probably that was the regulation at that time, and was subsequently changed. I was even advised earlier by a different solicitor that the overstay allowance is not fixed as a written law but 'normal overstay' is allowed, hence 3 months has become the acceptable duration.

And yes I was on the payroll for all the 6 months I was outside. But of course since I am not physically here but involved on phone/email, I was paid a reduced amount of 40% per month for the 6 months plus a few more months after I came back to UK but could still not resume work full time, which was justified on prorata basis.

All what I had written earlier at the start of the thread was mentioned in the application.

I had applied in person at Croydon, on same day basis paying the extra fees, just chancing that it would be decided on the same day. But I was informed earlier by my solicitor that it might go further as an application like mine was generally beyond the authority given to counter officers. And thats what happened, and 3 months later, yesterday I was informed by my solicitor (when she called the PEO for the status) that it was refused - now waiting for the actual reasons for refusal.

[Lucapooka]

The operation could be possible here, I believe, either privately at a high cost where I could choose the surgeon, or under NHS totally free but where I would have had no control over which surgeon would do it and what his success history was,

Hmmm! So you have exercised your free choice to remain outside the UK when you could have easily remained in the UK, and taken a significant salary reduction to do so.

I think further comment is mere guesswork until you can provide the exact wording of the refusal notice.