ILR 10 Year route - eligibility

[pinko]

Dear CR001

My name is Malik I am 29 year old Pakistani National currently in the UK on Spouse visa of my 2nd term of FLR (M) route where I will be eligible to apply ILR after completing 5 year by 22nd May 2019 with British National wife, I also have a 2 year old British National child as well.
Currently I am seeking some advice in order to make an application for indefinite leave to remain under the 10 year long residence route, I need to know if I am still eligible to make a long residence 10 year route application bringing into consideration on 8th May 2008 I got my first (student Visa) entry clearance from Pakistan, and I came into the UK on 28th May 2008 (valid until 31st October 2009) which is I believe is the long residency clock start date.
On 29 September 2009 I made Tier 4 General student further leave to remain application which was granted on 13th November 2009 until 31st December 2011.
On 31st December 2011 I made a combined application for leave to remain as a Tier 4 General student migrant under the point base system which was refused on 31st October 2012 due to an invalid CAS letter submission (as per UKBA refusal notice),providing that I was unable to score required 40 point in order to meet the tier 4 application criteria at that time, a right of appeal was also given against the decision which I chose not to appeal due to not having sufficient evidence, time consumption task and the uncertainty of the outcome of refusal against such decision (copy of refusal letter dated 31st October 2012 is also attached in this email),I was advised to leave the United kingdom immediately if decided not to appeal against the decision on the other part of refusal notice served dated 31st October 2012,
After successfully completing my previous courses on which previous leaves to remain were granted. As soon as I received the notice I decided to make another Tier 4 application inside UK to continue my BA business Studies, So decided to apply to University of West London to complete remaining course after being dodged by a college which causes the entire above refusal matter. University of West London issued a conditional letter dated 23rd November 2012 offering 4th February 2013 bringing into the consideration my current immigration status (with no valid leave to remain) and advised to make an application outside the country in order to get a CAS to start intended programme as you can only make an application inside the UK to continue a course of study if your intended programme starts within 28 days of the date of Tier 4 further leave to remain application, because programme start date was February so making an application inside the UK will again result refused so on 25th of November 2012 I departed/left the UK without being overstayed by more than 28 days as law says any period of overstay of less than 28 days is disregarded in regards to making future application to stay in the UK.
A week before I travelled to Pakistan I had very severe chest infection I was being treated by local GP by prescribing some medicine which the symptoms had worsen on the day I arrived to Pakistan and admitted to hospital for a week on the same night (which is supported by appropriate medical evidence) issued at that time by my consultant.
With regards to making a Tier 4 general visa application (within first 28 days of dated 31st October 2012 refusal notice served) my representative faces delays and inability to find a suitable appointment date to IOM centre Islamabad to get my TB screening report, due to chest infection and in order to recover before going for such medical test which is major requirement as part of Tier 4 General visa application if you apply outside the UK.
Anyway after completing the requirements i.e. CAS letter, bank Statement along with TB screening certificate on 3rd January 2013 I Submitted Tier 4 PBS application which was granted by 13th January 2013 until 2nd June 2014. I came back to UK on 4th February 2013 to continue my course at University of West London and graduated in 2014 with a BA Business Studies degree.
On 22nd May 2014 I made 1st FLR (M) application via premium service centre which was granted same day until 22nd November 2016,
On 19th November 2016 I submitted my 2nd FLR (M) application via premium service to complete 5 year route which is also granted until 25th May 2019 which is my current immigration leave status.
Providing this as my first arrival in the UK is 28th May 2008 It will be legally 10 years residence by 28th May 2018, for which I have few questions/doubts either I have continues residence or its broken when I departed/left the on 25th November 2012 to make Tier 4 application from Pakistan and came back within 6 months??
Can I make an ILR long residency application and request Case worker to exercise discretion due to compelling or compassionate circumstances as my being hospitalised and not being able to submit application within 28 days and my inability to submit application due to Christmas holiday/not getting appointments in time delays in documents postal of bank statement/CAS letter from UK to Pakistan etc. If above application does not go as planned will I be able to keep the current spouse visa leave rather than getting limited leave outside the rules?
Long residence

Long residence in the United Kingdom
276A. For the purposes of paragraphs 276B to 276D and 276ADE(1).
(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or
(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
(c) ‘lived continuously’ and ‘living continuously’ mean ‘continuous residence’, except that paragraph 276A(a)(iv) shall not apply.
Question is does paragraph 276A(a)(i) apply in my case as per having been refused leave to remain application in the UK during October 2012 where I left the country to make an application from Pakistan had no valid leave to remain at the time of departure??

Besides this I believe I do meet all other requirements of 10 year long residency route for example, No convictions of any kind, have not stayed more than 540 days out of UK or 180 days in one year, Also have UK University degree and have passed life in the UK test, No breach of the leaves permitted or any immigration offence or any other such restrictions, Good character and strength to UK connections etc.
Days spent outside the UK during the 10 year residence period
14th March 2010 – 7th May 2010 = 54 days
25th November 2012 – 3rd February 2013 = 71 days
2nd December 2014 – 1st January 2015 = 30 days
2nd May 2017 – 16th May 2017 = 14 days
Total days spent outside UK = 169 days


Can you please advice me if i am eligible to make a ILR long residence 10 year route application ??
much appreciated

[abdulsaid]

Your case is more difficult than mine, you have the answer already that
You have left the UK having been refused entry.. You also have been served with a notice of removal.. But
You still have a chance as Home secretary can exercise discretion..
Mine I was in temporary admission no solicitor gave me a positive answer they say since my application was rejected my temporary admission doesn't count as legal which I know it does as I was granted later
Have u applied within 28 days? That is your chance and good luck