HO Power to exercise discretion

[Khaled33]

Dear All,

I am just wondering if someone could answer this question for me. Does the home office have the power to exercise discretion in all cases? Is there a document that highlight all areas that the Home office can exercise discretion ?

Based on the experience of this form, if someone applies for ILR and the Home office finds a breach that the employer is responsible for, will the HO automatically reject the ILR or maybe exercise discretion and grant the ILR since it was not the fault of the applicant and maybe go after the sponsor ?

[secret.simon]

You will have to elaborate on the type of breach that the employer was responsible for. You have also not clarified what category the applicant is applying for ILR under.

Generally, ILR is not given at discretion. The normal practice would be to extend the person's (limited) Leave to Remain by a grant of Leave Outside The Rules until such time as the person does meet the requirements for ILR.

As an example, if the applicant has exceeded the absence requirements for ILR Long Residence, but "it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances", a grant of Leave Outside The Rules is the appropriate outcome.

If the applicant has been absent from the UK for more than 6 months in one period or more than 18 months in total, the application should normally be refused. However, it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances.

This must be decided at senior executive officer (SEO) level with a grant of leave outside the Immigration Rules being the appropriate outcome.

[Khaled33]

let's say that the breach is in the form of salary reduction to lower rate than the role salary thresholds that is only spotted when the applicant has submitted their ILR application. Neither the applicant nor the employer knew that there was a breach to immigration rules. how would the home office react in such cases ?

[zimba]

let's say that the breach is in the form of salary reduction to lower rate than the role salary thresholds that is only spotted when the applicant has submitted their ILR application. Neither the applicant nor the employer knew that there was a breach to immigration rules. how would the home office react in such cases ?

Very likely that they revoke the sponsor's licence for breach of the rules and curtail any leave left to the migrant. Ignorance of the rules and sponsor's duties in not valid a defence

[Khaled33]

Thank you Zimba!

this would result in refusal of ILR too , correct?

[zimba]

Thank you Zimba!

this would result in refusal of ILR too , correct?

Yes. Your sponsor must have a valid license for ILR

[Khaled33]

If the licence is not revoked or renewed when my visa is still valid , will the ILR be granted?

[CR001]

If the licence is not revoked or renewed when my visa is still valid , will the ILR be granted?

Your sponsor must have a valid sponsor license in order for you to be successful with ilr. If they do not have a licensed, whether it is revoked or they chose not to renew it, you will not get ilr.

If they don't have a licence, they cannot sponsor you for tier 2.

[Khaled33]

I understand but what if they don’t revoke the license will the HO graft ILR or they won’t due to previous breach from employer?

[zimba]

I understand but what if they don’t revoke the license will the HO graft ILR or they won’t due to previous breach from employer?

If there is a breach and UKVI knows about it, ILR will not be granted