If ILR refused, will this affect future ILR applications?

[DrD]

Dear all - readers/visitors of the forum as well as moderators.

I am writing to seek some advice and insight about your experiences on this matter; it would help me immensely in deciding whether or not to go ahead with my application.

I am contemplating making an application for an indefinite leave to remain (10 year route) in mid July 2017. This is when I reach 10 years of being in the UK. The first 8 years I was on student visas, and the last 2 years I have been on a Tier 2 visa. My Tier 2 actually expires in late 2020, so technically I can wait and apply with more certainty via a 5 year work route. However, the prospect of waiting 3 years, whilst knowing that I may have a chance now, disheartens me.

I am from outside the EU, from one of the republics of the former Soviet Union, and I am employed as a University Lecturer. The requirement which I do not meet is the absence of up to 180 days at a time. Back in 2011, when I was a PhD student, I went to my home country for data collection and as a result was outside the UK for 7 months. It is a typical procedure for PhD students to spend up to a year in the country that they study in order to collect data. Originally, I was planning to spend up to 6 months, but getting access to data was more difficult than I thought and I had to travel to another neighbouring country for 3-4 weeks to collect more data. Thus, my fieldwork was extended by my academic supervisor/professor. The priority was to collect good and sufficient amount of data, based on which a PhD dissertation can be completed. And to be frank, at that time I was more concerned with making sure that I was on course to finish my PhD, as opposed to keeping in line with immigration rules (I am sure those who did PhD will know the feeling). So in the end, I spent a total of 7 months (at a time) outside the UK. Essentially, the main reason of "overstaying" was associated with my research programme and this was agreed with my professor. My point by providing this information is to underline that my absence of more than 180 days had a reason and was not simply a purposeless decision to leave the UK with intention not to come back. I was receiving a monthly stipend from Uni throughout this time and my fees were being paid in full for that year. My status was a full time postgraduate student collecting data abroad.

I successfully completed my PhD and have published papers based on that data. I can provide much evidence to support this - for instance, i can obtain official letters from my supervisor and the university to support all of this, and to emphasise that coming early would not have been beneficial/productive in terms of meeting the requirements of the PhD degree. This 180 days rule is the only point I do not fulfil. I meet all other requirements. As I currently read the rules/guidance, it states that "it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances".

Would, in your views, my situation fall into these compelling or compassionate categories? Essentially, what do you think my chances are in going ahead with ILR application? Has anyone had a similar experience/case that they can share? And, if I go ahead, should I book premium service or send by post? Any advice would me hugely appreciated.

Actually, lastly, I am married and my wife is with me (she came to the UK on a dependent visa only a year ago); would her status/visa category have to change as a result of my application?

Thank you so much for your help.

[CR001]

Absence of 180 days or more breaks continuity of residence.

Your spouse would have to switch to FLR(M) if you are successful in getting long residence ILR. This will reset her clock to zero and a new 5 year residence period (2 X 2.5 year visas) before she will qualify for ILR.

[DrD]

Absence of 180 days or more breaks continuity of residence.

Your spouse would have to switch to FLR(M) if you are successful in getting long residence ILR. This will reset her clock to zero and a new 5 year residence period (2 X 2.5 year visas) before she will qualify for ILR.

Thanks for your prompt reply, CR001.

I wonder if you are aware of/can points me to any cases with an absence of over 180 days that have been successful? Any successful precedent? I certainly remember reading at least one post in this forum a few weeks ago where someone was successful whilst still having an absence of 180 days; however, I wasn't registered to the forum back then, didn't think of saving the link and simply can't find it again.

Any previous experience would be helpful!

Dear fellows, please respond!

thank you.

[sonrock]

you'll be fine when going to appeal really because a similar case happened before to a lady who had to go to her home country for data collection which lasted for 12 months.

when she appealed, she won the case and the judge gave her ILR.

nevertheless, it's a bit different from your case because your current visa is until 2020. So if you applied for ILR now, there is no chance for appeal but just an AR which I doubt they will do anything different from the first decision.

having said that, it doesn't mean you won't be able to succeed with the first attempt. Try to find a great solicitor who can help you to exercise the compelling and compassionate reason as inherently requested by the nature of a PhD. I completed one and I know that.

all in all, you're in a great position as you're in Tier 2 and your visa is very long. I'm not that lucky to get a sponsorship job but having only one option to go to the ILR LR route whilst my current DES visa is running out early next month.

FYI, just give it a try and see how things going, but I see you have more than 50% of chance to be successful in this case because it's just slightly more than 6 months.

good luck if you want to go ahead with the application, please let me and people here know the result.

[Aliraza12]

Hi
I think you are fine to apply ILR .. you can easily get ILR.
I know people have away from uk 9 month due to medical reason he got it
So you are only 30days day difference
You are fine

[poper]

https://www.gov.uk/government/uploads/s ... -v15_0.pdf

see page11

for the single absence of over 180 days:
o 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
o you must also consider the reasons for the absence

-Produce as much documentation as possible to support your reasons for the break
-The case worker needs to apply discretion.
-And don't forget your prayers
-All the best

[DrD]

you'll be fine when going to appeal really because a similar case happened before to a lady who had to go to her home country for data collection which lasted for 12 months.

when she appealed, she won the case and the judge gave her ILR.

nevertheless, it's a bit different from your case because your current visa is until 2020. So if you applied for ILR now, there is no chance for appeal but just an AR which I doubt they will do anything different from the first decision.

having said that, it doesn't mean you won't be able to succeed with the first attempt. Try to find a great solicitor who can help you to exercise the compelling and compassionate reason as inherently requested by the nature of a PhD. I completed one and I know that.

all in all, you're in a great position as you're in Tier 2 and your visa is very long. I'm not that lucky to get a sponsorship job but having only one option to go to the ILR LR route whilst my current DES visa is running out early next month.

FYI, just give it a try and see how things going, but I see you have more than 50% of chance to be successful in this case because it's just slightly more than 6 months.

good luck if you want to go ahead with the application, please let me and people here know the result.

Sonrock, thank you for your input!

I am still unsure whether to go ahead; the problem with solicitors is that i am not sure whether they will actually care more about this case than myself. Spoke to 2, both were ok but didn't convince me. And from what I gathered, they will prepare the application in the same way I would do it, but perhaps they will argue the case in the cover letter differently. Hence, thus far my voice is telling me to do it on my own.

Regarding your case, try to be more positive and remember that nothing is more difficult than a PhD, so this, in theory, should be a peace of cake for us! I will surely let you know. If you have any more info regarding my case/situation or any other thoughts, please let me know. I am still gathering more insights on this.

[DrD]

Aliraza12 and Poper - thank you both for the input, I much appreciate the encouragement!

Aliraza12 - do you have more info about that case you mentioned (9 months out, medical reason)? My fear is that medical reasons are more serious and therefore have a better chance (of qualifying as compassionate/compelling reasons), whereas mine is less so, so I am not sure mine will be looked at similarly.

Can I ask others who may have any insights on this to share please? Other gurus of the forum?

thank you.

[DrD]

Folks, I have a quick question regarding an ILR application.

I am on Tier 2 General which is until 2020. However, next month (July 2017) I will qualify to apply for an ILR via 10 year route. But there is a chance that my application via a 10 year route might be rejected/refused, because I spent 7 months abroad in a single trip, thus breaking the 180 days rule.

If I am rejected/refused, will I still keep my Tier 2 status (I assume I would)? And most importantly, will this in any way affect (negatively) my future application for an ILR, when I become eligible again via 5 year route in 2020? I couldn't find any definitive information on the HO website on this.

Does anyone know the answer to these questions and could you please share it? Or could you point to any official guidelines where this is clarified?

Thank you in advance for your time.

[sonrock]

I don't think doing PhD and gathering information is less compelling to medical, especially when you just slightly spent more than 6 months at one point.

I went out for 10 months and my wife 9 months for health and fertility treatment before going back to start my PhD. We'll submit our ILR applications next week with a help from a solicitor whose wife also had ectopic pregnancy like mine.

It's really difficult at the moment for internationals who come from outside the EU but not American, Australian or Canadian to stay.

We all know how hostile the HO is towards immigrants under this Tories government, so just try our best and hope luck will be with us.

In your case, I think you can try to apply by yourself and write a proper cover letter to explain your situation and asking them to exercise discretion.

I'm sure you know how to argue and deliver a great presentation in your letter .

Good luck!

[vinny]

If your leave isn't curtailed, then you may continue on it.

A seven months absence also breaks the PBS 5-year continuity.

[DrD]

If your leave isn't curtailed, then you may continue on it.

A seven months absence also breaks the PBS 5-year continuity.

vinny, thanks for response. You got me worried there - why could my current leave be possibly curtailed? Just to give you some info - I am on Tier 2 since 2015 (it runs until 2020), and my 7 month absence was back in 2011 when I was a student (in Tier 4). Never broken any laws, etc. I work at University and my contract is permanent. My SAR didn't have any negative comments or notes.

Any more thoughts on this please, folks?

[DrD]

I don't think doing PhD and gathering information is less compelling to medical, especially when you just slightly spent more than 6 months at one point.

I went out for 10 months and my wife 9 months for health and fertility treatment before going back to start my PhD. We'll submit our ILR applications next week with a help from a solicitor whose wife also had ectopic pregnancy like mine.

It's really difficult at the moment for internationals who come from outside the EU but not American, Australian or Canadian to stay.

We all know how hostile the HO is towards immigrants under this Tories government, so just try our best and hope luck will be with us.

In your case, I think you can try to apply by yourself and write a proper cover letter to explain your situation and asking them to exercise discretion.

I'm sure you know how to argue and deliver a great presentation in your letter .

Good luck!

Sonrock - you indeed went through some tough times, it seems. I hope the better days are ahead!

Was your 10 month leave in one go (like me, breaking the 180 days rule)? What has your lawyer said about the absence, will you argue for discretion based on medical grounds (I am just interested to hear versions of other lawyers on this)? Is your lawyer optimistic? In anyway, I wish you the best of luck next week. Please come back here and share your experience and tell us how it went, if you can. We would appreciate it much!

[vinny]

If your leave isn't curtailed, then you may continue on it.

A seven months absence also breaks the PBS 5-year continuity.

vinny, thanks for response. You got me worried there - why could my current leave be possibly curtailed? Just to give you some info - I am on Tier 2 since 2015 (it runs until 2020), and my 7 month absence was back in 2011 when I was a student (in Tier 4). Never broken any laws, etc. I work at University and my contract is permanent. My SAR didn't have any negative comments or notes.

Indeed. Making a failed application isn't necessarily a reason for curtailing leave.

[marcnath]

Sonrock, thank you for your input!

I am still unsure whether to go ahead; the problem with solicitors is that i am not sure whether they will actually care more about this case than myself. Spoke to 2, both were ok but didn't convince me. And from what I gathered, they will prepare the application in the same way I would do it, but perhaps they will argue the case in the cover letter differently. Hence, thus far my voice is telling me to do it on my own.

Regarding your case, try to be more positive and remember that nothing is more difficult than a PhD, so this, in theory, should be a peace of cake for us! I will surely let you know. If you have any more info regarding my case/situation or any other thoughts, please let me know. I am still gathering more insights on this.

I agree that solicitors will add little value in this case. You are not fighting on any legal point but rather you are appealing to the discretion of the HO.
I also think you have a good case, add in letters from your supervisor and someone else like the Dean on why 7 months was needed and/or the value the overall work has contributed to.
I still give UKVI people the benefit of doubt, so I think they would prefer to grant you ILR rather than reject. However, they are bureaucrats and need to justify all their decision.
So, what you are doing in your arguments is giving them enough reasons and evidence so they can justify a positive decision if they are questioned.

[sonrock]

Sonrock - you indeed went through some tough times, it seems. I hope the better days are ahead!

Was your 10 month leave in one go (like me, breaking the 180 days rule)? What has your lawyer said about the absence, will you argue for discretion based on medical grounds (I am just interested to hear versions of other lawyers on this)? Is your lawyer optimistic? In anyway, I wish you the best of luck next week. Please come back here and share your experience and tell us how it went, if you can. We would appreciate it much!

Yes, both I and my wife went out for more than 6 months at 1 point.

She had ectopic pregnancy when we were doing our master course and went through 3 big operations which almost took her life. Doctors and nurses at QMC made her infected after the first operation and things went badly pretty quickly. Before being discharged from the hospital, a senior consultant arranged a meeting with us and said my wife would face difficulities in having children naturally again. Taken into account her both physical and mental conditions at that moment, you can imagine how horrible the news for her to bear.

We went back to our country for wedding and getting her treated by traditional methods from a well known doctor. We have his cover letter, her prescriptions, his ID, registration etc. to prove everything is authentic but not from a ghost.

We also have all of her medical record from NHS and even a failed IVF treatment when back in the UK in 2010.

I came to see quite many solicitors, most of them said our chances are less than 50% because of breaking the 6 months period at one point, but we still have chance for appeal, especially my daughter will be 7 years old next October. She was born and raised in the UK and just left the country for only 1 month since then. My son is 3 years old and also born in the UK.

So my solicitor who is helping me in our case showed much sympathy and gave us much confidence compared to others, because his wife also had ectopic pregnancy although not as severe as mine. And he's working for Charities who help refugees and especially children who are unaccompanied by parents/adults in the UK.

He's the head of immigration, a partner of a big law firm in the city where I live. He helped people with similar circumstances like mine before successfully.

He said that, the HO might not give us the ILR in the first attempt, but we'll appeal. And when the judge looks at all the evidences, especially the human rights point of view that a burning desire to having children again by using a different treatment method which the UK cannot provide (obviously because the doctor is living in my country), it is not only compelling but also compassionate according to my solicitor.

In addition, I have all the proof that I was looking for and applying for PhD scholarships/position at UK Universities even before I left the UK. And I faced some setbacks with administrations such as applications lost on post or University couldn't contact one of my referees to finalise their unconditional offer for my PhD.

So all these shows our always intention to go back as soon as we can but not just simply leaving the UK and that's that.

I hope I gave you enough background of our case and will defo let you know about the future outcome. Whatever happens, I won't give up and fight till the end.

I bought a house here no mortgage in 2012, now working for the government (unfortunately not sponsoring visa) in important projects, have great savings to show that we've never claimed a single penny of benefit and won't do so if they give us permanent residency and then citizenship.

In the worst case scenario which I hope won't come, we'll go back to our home country before going elsewhere such as Canada or Australia. If Trump will be kicked out in the next 2 years and replaced by somebody else, I'll think about going to the US but that's the future.

Now just focus on ILR here first

[secret.simon]

To the OP;
I am inclined to agree with you that I would imagine a compelling/compassionate circumstance would be something that you would have no control over. So, if you were hospitalised for a few months or if your flights got cancelled due to an Icelandic volcano having a bad hair day, I would consider that compelling. I am not sure that having spent an extra month collecting data for studies can be classified as compelling.

Having said that, you have some advantages in applying for discretion. To start with, you breached the 180 day limit only by a month or two, so about 60 days or less in a 10 year period. At the end of your studies, based on that data, you gained a PhD.

You could therefore argue in your cover letter that discretion should be exercised because the balance of exercising the discretion tilts in the UK's favour (note; the UK's favour, not yours). The UK gains a person who is eminently learned in his/her field, for excusing the absence of a mere 60 days in a 10 year period. Play that to your advantage.

It may also help your case if you get letters from people in your field commenting on the usefulness of the research that you did in that seven month absence from the UK and why that data could not be collected in a shorter period.

Best of British luck to you in your ILR application and in your field of study.

nothing is more difficult than a PhD

Don't say that. I was rather hoping to apply for one myself. Then again, I daresay that if you are doing a PhD in a field you enjoy, it is not a burden but a joy. It is just the form-filling and administration and followup and chasing that can be dispiriting.

[DrD]

Folks,

Thank you so much for your input and insights regarding my chances to apply. I shall consider your suggestions.

However, I am still a bit unsure regarding my latter questions - if my application is refused, could this in any way mean that my current leave is "curtailed", or my future ILR applications may be negatively affected?

Vinny - I appreciate your response, but to be frank you sound a bit like my academic supervisor - he would explain a theory to me in "simple" ways, but it would take me a few days to make out what he actually said. I always wished he was a bit simple. Thus my question to you - what do you exactly mean by

"Indeed. Making a failed application isn't necessarily a reason for curtailing leave."

Are you not sure whether the leave may be curtailed/not curtailed? I just never thought this issue may actually be a problem, so it is important for me to have some clarity on this; otherwise, I wouldn't want to risk my current ILR if my current status/future applications may be affected negatively. Please point to more answers from the forum, if you know.

Dear readers and gurus, please give me more insights on the question of the subject box.

thank you.

[vinny]

Is making a failed application breaking a condition of your leave?

Read the caseworkers' guidance on curtailment and conditions of your leave. If you haven't broken any conditions of your leave, then would they have any grounds for curtailing your leave?