Overstayed and didn't reapply for entry clearance within 28d

[Madam Carlos]

Hello

I need help with if I have a chance and whether I should apply in person or postal

IMMIGRATION HISTORY

03/2006 - 12/2007 - holiday maker
01/2008 - 05/2011 students visa
05/2011 - 02/2012 extension of tier 4
05/2012 - 05/2014 PSW (overstayed by 20days and left the country )
05/2014 -09/2014 - i was ill (I have a medical to show)
09/2014 - applied for tier 4 entry clearance
10/2014 - 03/ 2016 tier 4
03/2014 - 09/2016 extension of tier 4

During my 10 years I've never stayed out for up to 6 months at a time or have I ever applied out of time. PLEASE ADVISE I NEED TO MADE A DECISION QUICKLY

[CR001]

As you left the UK after the PSW visa expired, your continuous residence is broken as far as I understand. You would have needed to leave with a valid visa and then apply abroad and return on a valid visa for this absence to be ok.

On what date your PSW expire?

On what date of PSW expired did you leave the UK?

On what date was your Tier 4 granted (valid from date)?

On what date did you re-enter the UK on your Tier 4 visa?

[Madam Carlos]

My PSW EXPIRED ON 21/05/2016 and I left the UK on 15/06/2016.

Entry clearance on tier 4 was issued from 14/10/2014 - 02/03/2016

I re-entered the UK on 24/10/2016


I know you're refer to this from the Ilr guidance -

Time spent outside the UK
Continuous residence is not considered broken if the applicant:
 is absent from the UK for 6 months or less at any one time
 had existing leave to enter or remain when they left and when they returned – this can
include leave gained at port when returning to the UK as a non visa national, see
related link: Information for non-visa nationals
 departed the UK after the expiry of their leave to remain, but applied for fresh entry
clearance within 28 days of that previous leave expiring
If the applicant had existing leave to enter or remain when they left and returned to the UK,
the existing leave does not have to be in the same category on departure and return. For
example, an applicant can leave the UK as a Tier 4 (General) student and return with leave
as a spouse of a settled person. Continuous residence is not broken as the applicant had
valid leave both when they left and returned to the UK.

However I was wondering what are my chances under the discretion as follows from the guidance as I was ill -

Periods of overstaying
When refusing an application on the grounds it was made by an applicant who has
overstayed by more than 28 days, you must consider any evidence of exceptional
circumstances which prevented the applicant from applying within the first 28 days of
overstaying.
The threshold for what constitutes ‘exceptional circumstances’ is high, but could include
delays resulting from unexpected or unforeseeable causes. For example:
 serious illness which meant the applicant or their representative was not able to submit the application in time - this must be supported by appropriate medical documentation
 travel or postal delays which meant the applicant or their representative was not able
to submit the application in time
 inability to provide necessary documents - this would only apply in exceptional or
unavoidable circumstances beyond the applicant’s control. For example:
o it is the fault of the Home Office because it lost or delayed returning travel
documents
o there is a delay because the applicant cannot replace their documents quickly
because of theft, fire or flood. The applicant must send evidence of the date of loss
and the date replacement documents were sought
Any decision to exercise discretion and not refuse the application on these grounds must be
authorised by a senior caseworker at senior executive officer (SEO) grade or above.
When granting leave in these circumstances, the applicant must be granted leave outside
the rules for the same duration and conditions that would have applied had they been
granted leave under the rules.

[KhanNW]

As you left the UK after the PSW visa expired, your continuous residence is broken as far as I understand. You would have needed to leave with a valid visa and then apply abroad and return on a valid visa for this absence to be ok.

On what date your PSW expire?

On what date of PSW expired did you leave the UK?

On what date was your Tier 4 granted (valid from date)?

On what date did you re-enter the UK on your Tier 4 visa?

CR001 is right in saying that contineous residence seems to be broken. A person normally suppose to have a valid leave on depart and should come back within 6 month in order to keep contineous residence. Only exception to the rule that you should have a valid visa to depart is; if you leave the UK after your current visa is expired, you should apply for a new visa within 28 days of previous visa expiring from your home country. In this case, it will be disregarded that you did not had valid leave when you left the UK. However, I am not sure about having medical certificate to justify that any period of overstaying and applying late for a new visa was due to medical reasons. Hopefully a senior member can advice you better about discretion on compassionate grounds

[Madam Carlos]

Any senior members can advise regarding discretion and my chances??

[Obie]

You have to accept that an application for ILR is highly likely to result in a refusal.

[migrant4ever]

You have to accept that an application for ILR is highly likely to result in a refusal.

why do yo you think the HO will not use discretion is she was ill as it is stated in the guidance -

Example 3
An applicant has a single gap in their lawful residence due to submitting an application 34
days out of time. The applicant has provided a letter from their consultant stating they were
hospitalised during this period.
Question Would you be right to use discretion in this case?
Answer Yes. Even though the application was more than 28 days out of time,
the applicant has provided sufficient evidence to demonstrate that there
were exceptional reasons for the late application and has tried to
maintain lawful residence throughout the rest of the 10 year period.
You must confirm this with your senior executive office (SEO) senior
caseworker.

[Madam Carlos]

You have to accept that an application for ILR is highly likely to result in a refusal.

Just to inform you, I was successful with my ILR under the 10 years rule and have since received my BRP card in under 2.5 months of application.

My advise: never give up - it's better to try and fail, than to fail to try.