Exceeding 540 days - Long residence ILR

[poling213]

Hi guys,

is there no hope for applying for ILR if we have definitely exceeded 540 days absence from the UK?

I held one Tier 4 Child visa, two Tier 4 Generals and one Tier 2 General, giving me 10 years of lawful residence from the period of 2007-2017 without any break in visas.

However, when I was studying at boarding school and university I would go and see my parents over summer break, and I also took a 9 month Erasmus gap in between. However, during my Erasmus year I would come back to the UK several times, which means that any one trip outside the UK was less than 180 days (my gaps are 170, 16 and 110 days respectively during my Erasmus year).

I also decided to take a few months off between graduation and the start of my postgraduate diploma to go to Japan to study Japanese. I still had valid leave to enter/remain in the UK before and after this (as I had applied for a new Tier 4 visa). In that period I stayed outside the UK for 174 days.

Lastly, while working, I was sent abroad on secondment for 6 months, adding another 170 days of absence in 2016.

All in all, I have about 940 days of absences in the UK, even though none of my trips (though some of them pushing dangerously close to the 180 day limit) has ever exceeded 180 days.

Is there no hope at all for the 10 year ILR route?

[CR001]

You would be asking HO for discretion on your absences, which are almost double what is allowed for long residence.

Other members who have applied with similar absences, including child students initially, have been refused due to excessive absences.

How long have you been on Tier 2 General?

[poling213]

You would be asking HO for discretion on your absences, which are almost double what is allowed for long residence.

Other members who have applied with similar absences, including child students initially, have been refused due to excessive absences.

How long have you been on Tier 2 General?

Thanks a lot for this information. I have been on my Tier 2 General for a little over 2 years now.

Which would make it (roughly) 2 years on Tier 4 (Child), 4 years on Tier 4 (General - uni); 2 years on Tier 2 (General - postgraduate), and 2 years on Tier 2 (General). Would that make a difference somehow?

Do you know whether or not they take into account the degree of excess? eg. 600 days vs 900? My understanding was that it doesn't matter whether or not you were absent for 541 days or 1000, but that discretion would have to be exercised either way.

Secondly, I was wondering if I could argue not having sufficient ties to my 'home country', so to speak.

I was born in country A (mum's country), but my dad is from country B. I lived in country C from 3 to 15 years old and then moved to the UK where I've resided since now. When I moved to the UK, my parents moved to country B, and I've been going to see my parents in country B for summer breaks since then. I've recently obtained country B's passport for freer visa travel (thereby rendering my passport A invalid since country A doesn't allow dual citizenship), but I don't speak language B, I've never been to school there and I don't have any friends there. Do you think the HO are familiar with cases like mine?

[CR001]

You would be relying entirely on the discretion of the caseworker. Absence is absence and yours is excessive.

You could apply and ask for discretion, but I would not hold out any hope for a positive result. You will also lose the fee you pay, which is already substantial.

Even if you apply and are refused, you can then wait to apply based on Tier 2 General once you have 5 years residence in that category.

[poling213]

You would be relying entirely on the discretion of the caseworker. Absence is absence and yours is excessive.

You could apply and ask for discretion, but I would not hold out any hope for a positive result. You will also lose the fee you pay, which is already substantial.

Even if you apply and are refused, you can then wait to apply based on Tier 2 General once you have 5 years residence in that category.

One final question: if I apply for ILR now and my application gets refused, does that count as a visa refusal for general purposes? Say, if I want to apply for future visas in other countries and I have to disclose any past visa refusals, would I have to disclose this as well?

[poling213]

Also, thank you for the response That is pretty much the most optimistic response once an hope for under the circumstances!

[CR001]

Refusal of ILR has no effect on other visas. Remember that ILR is not a 'visa'.

Link below is the HO staff guidance on Long Residence applications.

https://www.gov.uk/government/uploads/s ... ce-v14.pdf

[CR001]

Tier 2 General route to ILR is far more generous with absence where you are allowed 900 days in the 5 years (no more than 180 days per 12 month cycle)

[poling213]

Refusal of ILR has no effect on other visas. Remember that ILR is not a 'visa'.

Link below is the HO staff guidance on Long Residence applications.

https://www.gov.uk/government/uploads/s ... ce-v14.pdf

Hi there,

Sorry to bother you again, but I've just had a chat with an immigration solicitor and came back majorly confused.

He basically told me I wasn't eligible for the long residence route because I needed to not have left the UK for more than 90 days a year and I would have had to keep to the terms of my visa if I do leave..? As in, since I held a Tier 4 visa my leaving for 90 days a year should have been explicitly connected to the purposes of the visa (ie. study, or work for Tier 2). This applies irrespective of whether or not I'm applying for ILR through the Tier 2 route or 10 year long residence.

I'm really confused now, because I've not read anything about the 90 day rule --> and all but one of my major absences from the UK have been for the purposes of my visa ie. Erasmus under Tier 4, 6-month secondment under Tier2. The only trip that wasn't explicitly connected to my visa was my going to Japan to study Japanese out of personal interest.

Are you by any chance aware of this rule?

[CR001]

It is no single absence of 180 days or more NOT 90 days. Not all immigration advisors have a clue and often get the simplest of applications horribly wrong.

Suggest follow the official HO documents.

[poper]

Refusal of ILR has no effect on other visas. Remember that ILR is not a 'visa'.

Link below is the HO staff guidance on Long Residence applications.

https://www.gov.uk/government/uploads/s ... ce-v14.pdf

Hi there,

Sorry to bother you again, but I've just had a chat with an immigration solicitor and came back majorly confused.

He basically told me I wasn't eligible for the long residence route because I needed to not have left the UK for more than 90 days a year and I would have had to keep to the terms of my visa if I do leave..? As in, since I held a Tier 4 visa my leaving for 90 days a year should have been explicitly connected to the purposes of the visa (ie. study, or work for Tier 2). This applies irrespective of whether or not I'm applying for ILR through the Tier 2 route or 10 year long residence.
Means, someone on Tier 2 can only be absent from the UK for work/business trips? How absurd. Does he mean the immigrant should never visit his home country???

I'm really confused now, because I've not read anything about the 90 day rule --> and all but one of my major absences from the UK have been for the purposes of my visa ie. Erasmus under Tier 4, 6-month secondment under Tier2. The only trip that wasn't explicitly connected to my visa was my going to Japan to study Japanese out of personal interest.

Are you by any chance aware of this rule?

https://www.gov.uk/long-residence/eligibility

The rules related to absence are explicitly stated.

Your solicitor is either ignorant or trying to make good money out of applicants by misleading them

[LindaLou]

Hi! I am in a similar situation although my length of stays abroad has been around 580 and I am still 1 year away from the 10th year. However, for health reasons, I must travel to my home country to get treatment. The deal is the NHS doesn´t wanna do treatment because I still don´t have dangerous effects of my condition, while in my home country I have private insurance and they do preventive treatment...indeed to avoid dangerous effects as much as possible in the near future. Each trip with MRIs, lumbar punctures and appointments take me about a month, and I need at least 2 trips per year. This will take me to 640 days aprox out of the UK.
However, several of my months away have been because of fieldwork of my PHD, which is mandatory by the standards of the degree. Would they count both the medical reasons and the fieldwork-academic reasons to give a discretionary ILR with the 10yrs route?
I´ve heard that when trips are mandatory because of the nature of your work or of your studies then that time can often be overlooked.
Any help will be much appreciated
Thank you!!!