Complicated Situation ILR - Urgent Help Needed Please

[Genius00_1]

Dear esteeem group members,

Thanks for stopping by to read my complications and perhaps help. I hope this request didn’t make it here too late.

I came to the UK as a student in January 2003 and had my visas successfully renewed with no issues up till July 2011 (8 years 5 months) when I completed my studies in the UK and moved on to Asia for a job.

Before my residence permit expired, I applied for a visiting visa for 10 years (to expire in 2021). The visiting visa was graciously approved due to my unblemished immigration history at that time. The visiting visa was approved when my residence permit was still valid. Meaning there was no break.

I was away from the UK from May 2011 and returned in October 2012 (after 1 year 5 months absence). I met my ex-wife on transit to Asia in London on that trip. We got married in Nov 2013.

After getting married in Nov 2013, I posted my passport away and it came back three months (March 2014) with EEA Residence card valid till March 2019. Before my passport came back the time exceeded the 180 days allowed for a visiting visa!

We got separated in April 2014, my ex-wife naturalised to become a British citizen in June 2014 (unknown to me as we were not in touch), my EEA family residence card ceased as result.

She initiated the divorce process in September 2015 (1 year 10 months). When the divorce finally came through in August 2016, I applied for ILR under 10 years residence. My assumption at that point was, I MAY qualify considering I have had somehow more than 10 years visas for UK and lived here for more than 10 years (January 2003 – August 2016).

My ILR application was refused and both First Tier and Upper Tribunals refused me the right to appeal! As a result, I developed a severe depression and now on medication. The only option for appeal left for me is to go down the judicial review route, which is quite complicated and I still do not see any chance of winning the case. I have already served the Home Office a pre-action notice for judicial review.

I have passed and even exceed some of the requirements, have a successful business in the UK and I am not finding the idea of going back home encouraging due to hostility and difficult family problems.

I have been misled by many solicitors cos all they wanted was to cash in the consultation fees and leave me in more annoying situation and out of pocket.

As am still in the appeal process, do I have the right to work?

Please how can I get out of this difficult situation?

[CR001]

I was away from the UK from May 2011 and returned in October 2012 (after 1 year 5 months absence)

You DO NOT have 10 years residence because you had a long absence of more than 180 days, which broke your continuity of residence. It is not about 'holding a visa for 10 years' it is about 'residing in the UK' for 10 years.

Also, as part of your immigration history is EEA based, what evidence did you submit for the whole period you were on the EEA route?

[Genius00_1]

Dear CR001,

Thanks for your promptness.

I am not sure if I understand your question clearly, but my attempt for an answers are:

1. 'when I applied for the EEA residence card, I submitted the marriage certificate and evidence that the ex was a qualified person'.

2. When I applied for the ILR, I assumed that the stamp (residence card) in my passport suffices - so I did'nt include any documents regarding my EEA residence card. As I had already notified the HO within 14 days of receiving the decree absolute (prior to submitting the ILR application).

I hope I have managed to nail down the question.

Is there any way out of this for me please?

I look forward to your response on this.

Many thanks

[CR001]

You seem to have missed my point that your continuous residence is broken due to your absence from the UK for 1 year and 5 months.

2. When I applied for the ILR, I assumed that the stamp (residence card) in my passport suffices - so I did'nt include any documents regarding my EEA residence card. As I had already notified the HO within 14 days of receiving the decree absolute (prior to submitting the ILR application).

NO!! The residence card is NOT sufficient. You must submit evidence of your EU spouse exercising treaty rights and being a qualified person for the WHOLE period you are claiming lawful residence under the EEA rules. The ILR form clearly states this.

[Genius00_1]

You seem to have missed my point that your continuous residence is broken due to your absence from the UK for 1 year and 5 months.

2. When I applied for the ILR, I assumed that the stamp (residence card) in my passport suffices - so I did'nt include any documents regarding my EEA residence card. As I had already notified the HO within 14 days of receiving the decree absolute (prior to submitting the ILR application).

NO!! The residence card is NOT sufficient. You must submit evidence of your EU spouse exercising treaty rights and being a qualified person for the WHOLE period you are claiming lawful residence under the EEA rules. The ILR form clearly states this.

Thanks, now I understand.

She stopped exercising treaty rights in June 2014 when she naturalised as a British citizen (2 months after receiving my residence card). I was not aware at that point and time cos our relationship was very sour! So, I did not pursue EEA family route when applying for the ILR - I didn't submit any evidence to the HO.

I also understand that because the divorce proceedings were initiated in two years after our marriage, I lost the chance of pursuing RTR route.

[CR001]

If she wwas not exercising treaty rights at the time of divorce, you would not have qualified for retaining rights of residence either.

2 reasons ypu fail to qualify for long residence ILR:

1. No evidence for a substanitial period priving your spouse was a qualified person.

2. Your absence of more than 180 days in one go.

The ILR refusal was correct and appeal or JR will also fail as HO did not make an error.

[Genius00_1]

If she wwas not exercising treaty rights at the time of divorce, you would not have qualified for retaining rights of residence either.

2 reasons ypu fail to qualify for long residence ILR:

1. No evidence for a substanitial period priving your spouse was a qualified person.

2. Your absence of more than 180 days in one go.

The ILR refusal was correct and appeal or JR will also fail as HO did not make an error.

I think there was an error of judgement by HO as they counted the period when I sent my passport away for the residence card as overstayed. It was contrary to the provision of Sect 3 of the immigration act 1971?

Is there any way out for me in this case?

[CR001]

Your EEA rights start from the date you married (if you married in the UK).

This still does not change the fact that you have broken your continuous residence, a point that you seem to be ignoring.

[Wanderer]

I might be as thick as a whale omelette but 17 months gap isn't doing to be overlooked under any circumstances......

[CR001]

I might be as thick as a whale omelette but 17 months gap isn't doing to be overlooked under any circumstances......

Not thick, you are spot on with this one (for a change)

[Genius00_1]

Your EEA rights start from the date you married (if you married in the UK).

This still does not change the fact that you have broken your continuous residence, a point that you seem to be ignoring.

I will take the HO on the 'overstay' claim and maybe we meet halfway.

Is there any chance of getting any concession or leave outside the immigration rules LOTR that I can aim for if the ILR is not possible?

I am sure someone here has come across (or overcome) a similar or even more complicate challenge than this.

Many thanks

[CR001]

I will take the HO on the 'overstay' claim and maybe we meet halfway.

What exactly do you mean by 'meet halfway'?? You can't 'negotiate' with HO to give you ILR!!

Is there any chance of getting any concession or leave outside the immigration rules LOTR that I can aim for if the ILR is not possible?

If you are not married to someone settled or EU and appear to have no British children, then no there isn't really a route for you. Years of abuse has lead to a clamp down on LOTR applications. You state you have a business, what about Tier 1 Entrepreneur?

I am sure someone here has come across (or overcome) a similar or even more complicate challenge than this.

Yes, but usually when there are children/family involved and exceptional circumstances. You seem to 'prefer living here' which is not an exceptional reason.

[Genius00_1]

Yes, but usually when there are children/family involved and exceptional circumstances. You seem to 'prefer living here' which is not an exceptional reason.

Can mental health condition be considered as exceptional circumstance? Yes, I prefer living here let the truth be told.

It seems my only option now is to wait for the Court to turn down my request for JR and then voluntarily depart?

What is the cleanest way of getting out of it? Leave now or wait till the HO gives me notice?

Many thanks.

[secret.simon]

Can mental health condition be considered as exceptional circumstance?

Depends on what mental condition. Feeling down in the dumps at the prospect of leaving the UK does not count. It does sound like you are clutching at straws.

Furthermore, if granted (unlikely in itself), it will not lead to ILR, but FLR(FP) and a further 10 continuous years of legal residence will be required for ILR.

[Genius00_1]

Depends on what mental condition. Feeling down in the dumps at the prospect of leaving the UK does not count. It does sound like you are clutching at straws.

Furthermore, if granted (unlikely in itself), it will not lead to ILR, but FLR(FP) and a further 10 continuous years of legal residence will be required for ILR.
[/quote]

Many thanks secret.simon, it seems this is a 'hopeless' case. From experience, have you ever come across anyone that clawed out of similar situation?

Do I need to wait to receive the final refusal to leave?

Regards, G.

[secret.simon]

it seems this is a 'hopeless' case.

The problem is not so much that it is a hopeless case because of fuzzy rules that have some ambiguity. It is that you very clearly do not meet the requirements of the Rules for ILR.

There is no exceptional reason (which you have listed in the thread above) for the UKV&I to give you any form of leave in the UK, let alone ILR.

You can of course apply for a visa under the PBS routes, but they are only available if you apply from outside the UK, to the best of my knowledge.

[Obie]

why were you refused? the absence is long indeed, but if you were not refused on that basis, then i think you may have a shot.

Even though you could not show your partner was a qualified person, the fact that she was issued a naturalisation certificate means that she held a right of Permanent residence.

This means that from November 2013 to August 2016, your presence in the UK was indeed lawful.

However because proceeding started before November 2016, you cannot retain a right of residence.

You sought legal advise very late. You could have possibly delayed the divorce.

[Genius00_1]

why were you refused? the absence is long indeed, but if you were not refused on that basis, then i think you may have a shot.

Even though you could not show your partner was a qualified person, the fact that she was issued a naturalisation certificate means that she held a right of Permanent residence.

This means that from November 2013 to August 2016, your presence in the UK was indeed lawful.

However because proceeding started before November 2016, you cannot retain a right of residence.

You sought legal advise very late. You could have possibly delayed the divorce.

Thanks Obie,

She wanted to push me out of the country by all means and the relationship has broken down the divorce was the only sincere way forward. A lesson has been learned.

[Genius00_1]

[quote=Genius00_1 post_id=1525243 time=1503587795 user_id=177412]
[quote=Obie post_id=1525224 time=1503586317 user_id=36693]
why were you refused? the absence is long indeed, but if you were not refused on that basis, then i think you may have a shot.

Even though you could not show your partner was a qualified person, the fact that she was issued a naturalisation certificate means that she held a right of Permanent residence.

The refusal was based on switching visas and overstay. These were things I had not control over.


This means that from November 2013 to August 2016, your presence in the UK was indeed.

[Genius00_1]

I am confident that someone in this forum knows how I can get a key to unlock this.

I am hoping and waiting for that key.

Many thanks.

[Obie]

Why was your appeal dismissed?

[Genius00_1]

Why was your appeal dismissed?

Yes, both First Tier and Upper Immigration and Asylum Tribunal dismissed and refused to grant the right to appeal.

[Genius00_1]

They (Tribunals) believe that no error of judgement was made.

[CR001]

Can you post the exact wording of the refusal letter (taking out all personal information)?

[Genius00_1]

Thank you very much for taking your time to help with legal advise. Your support has been acknowledged and appreciated. I am still very new in this group; hence, my posting my come across as inconsistent or unclear. If that happens, kindly ask a proving question to understand and help, please.

After a long paperwork trail (refusals) with the tribunals (First tier & Upper Tribunal), I contacted the Home Office to get my passport back to enable me voluntarily leave the UK, some contacted my to arrange returning the passports back to me. I realised that they were expecting me to leave and arrange for my passport to be handed back at the point of departure. One of the staff sent me an email with a form to sign and return it back to the Voluntary Departure Unit of the HO. I refused to sign the form because I was not willing to withdraw my intention to apply for Judicial Review (JR)/legal proceedings as the ILR refusal letter indicated that I over stayed my visiting visa between getting married to my EX wife and the approval of the EEA residence permit. I turned down the option of the voluntary departure cos I believe there was something wrong there, which I picked up in a comment by (CR001 » Thu Aug 24, 2017 2:03 pm) that my EEA rights start from the date you married (if you married in the UK).

I left it off there frustrated and waited to hear from the Home Office! To my surprise, I received my passport back with a letter, which is very brief and believe is a game-changer. The letter reads as follows:

Thank you for your correspondece of ----- 2017, in which you requested for your documents.

These documents were previously retained under Sect 17 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

As you have valid leave to remain in the UK, I am returning the document to you.

Yours sincerely,

---------------

Note that my current EEA Family Permit expires in March 2019. My questions here are:

(i) Does that letter confirm my retained right of residence even though the ILR refusal letter claims that I have no right stay as the divorce has been finalised?

(ii) Can I use the letter (above) to go back to the Home Office to apply for ILR for spending 5 years legally in the UK?

(iii) In what way can I please use the current situation to my advantage?

I look forward to your kind comments and help.