Discretion on single absence of over 180 days

[LMP098]

Hi,
I would like to know when a spouse visa officially cancelled. Is it when the sponsor spouse informs the UKVI about the marriage breakdown or is it when the UKVI curtails the visa of the dependent spouse (through a letter or other forms of communication?

Thanks.

[seagul]

Usually after reporting to UKIV the sponsor doesn't get any information as when the spouse visa is being curtailed. A disloyal partner must be reported to UKIV once all relationship reconciliation efforts failed.

[LMP098]

Thanks for your quick reply.

I was married to a British citizen and was on spouse visa from Aug 2013. Both of us travelled to Bangladesh in Mar 2014 when my mother was critically ill. In April 2014, my wife threatened divorce and informed UKVI about marriage breakdown. I informed UKVI in May 2014 from Bangladesh. I returned to the UK with a student visa for studying Master degree in Jan 2015. I later found out that my spouse visa was curtailed in Aug 2014, nearly 4 months after my spouse informed UKVI about marriage breakdown.

I just want to know when a spouse visa officially cancelled or withdrawn? In my case, did my spouse visa cancel with my spouse informed UKVI (in Apr 2014) or when UKVI actually curtailed my visa (in Aug 2014)?

[seagul]

Best thing is to order SAR file from UKIV which contains all immigration history.

https://www.gov.uk/government/publicati ... mmigration

[LMP098]

This is what I did, and through this SAR I found out that my spouse visa was curtailed in Aug 2014.
So, did it mean that my visa was cancelled when curtailed or when my spouse informed UKVI?

[seagul]

I think you should follow the date written in SAR

[CR001]

It is cancelled/curtailed at the time when UKVI/HO sends your notification/letter of it and not from the minute your spouse (ex) informs HO.

[LMP098]

Thanks. It makes sense to go with the curtailment date mentioned in the SAR.

After the marriage breakdown, I knew she would contact UKVI and as a result my visa will be cancelled. Hence, I did not take change when coming back from Bangladesh. I switched to student visa. I only found out about the curtailment when I requested for SAR in Feb this year . I also found out from the SAR that UKVI did not send me any notice by any form of communication (post, email, etc.) when they curtailed my visa in Aug 2014. They just served the curtailment notice straight to my file stating that they do not have any contact details of mine for the notice to be served since I was in Bangladesh at that time. However, the copies of my previous visa applications that I also requested through SAR show that I inputted my email address on those visa application forms.

UKVI knew my email address and still served the curtailment notice to file and did not inform me at all about the curtailment. Does this mean that the curtailment was not served correctly? Hence, the curtailment is invalid?

[CR001]

UKVI knew my email address and still served the curtailment notice to file and did not inform me at all about the curtailment. Does this mean that the curtailment was not served correctly? Hence, the curtailment is invalid?

Curtailment letters are sent by post and not by email. So no, it is not 'invalid'. Curtailment letters are also not posted out if HO is aware and knows that the person whose visa is being curtailed is outside the UK.

That aside, by applying for a student visa, this would have cancelled your spouse via anyway even if it was not cancelled/curtailed as you cannot hold two visas simultaneously.

Not sure what you are aiming to establish here or if just a general enquiry.

[LMP098]

I am planning to apply for ILR this Sept. if my visa was curtailed at that time, this would break my 10 years continuous leave (between Aug 2014 to Jan 2015). Hence, I was trying to establish if the curtailment was valid or not.

I found something in the guidance document for curtailment (https://www.gov.uk/government/publicati ... t-of-leave) Page -125 that suggests that the notice should be served to an email address if the migrant is not in the UK. Page 135 suggests that curtailment notice is not valid if not served correctly. Am I interpreting this document correctly? Need your advice.

Thanks.

[CR001]

This isn't even an issue looking at your absence. If you left the UK in March 2014 and only returned in January 2015, you have broken the continuous residence as your absence is more than 180 days.

Even if your visa was not curtailed, you would still have broken your continuous residence for ILR based on long residence.

[LMP098]

That is a very good point you raised. I think there are 2 problems here:

1) Away from UK for more than 180 days - I was going appeal for exceptional circumstances based on some situations I faced at that time

2) Breaks in 10 years lawful residence due to this curtailment - need your help to figure out if it was curtailed correctly

If I can establish if the curtailment was valid or not, I would have a better understanding if I stand a chance for the ILR.

[CR001]

Unlikely 'exceptional circumstances' will make the grade here. It is a very long absence and you will be asking for discretion, which does not have to be given. Members have reported refusals in the past for very complex and compassionate reasons even with substantial evidence (i.e. death of parent with terminal cancer for example).

You quoted a publication that was withdrawn. Correct one linked below.

https://www.gov.uk/government/uploads/s ... tv16.0.pdf

[LMP098]

Hi,

I have a single absence from the UK for over 180 days.
- Left UK on Mar 2014 with a valid spouse visa, which was curtailed in Aug 2014 (I was only aware of this when requested SAR in Feb 2017)
- Applied for student visa in Sept 2014, British High Commission in India took long to make decision, by the time they decided to give visa university extended enrollment deadline passed
- In Nov 2014, British High Commission in India emailed me advising me to withdraw the visa application since university could not extend the enrollment date
- Withdawn previous visa applied as advised by High Commission and re-applied for Jan session
- Entered in Jan 2015 with valid visa
- This leaves a gap of 10 months

My question: Will there be any discretion applied since application was made within the 6 months period of leaving the UK and British High Commission in India took long time to process the application???

Thanks.

[LMP098]

Thanks.

- My mom passed away in that period (May 14)
- Gone through divorce, wife filed police case accusing of domestic violence, faced trial
- Received permission from court to travel to the UK (Aug 14)
- Applied for student visa in Sep 14 (within 6 months from leaving the UK), but high commission took very long time to process the application (may be checking the details of court proceedings), finally decided to give visa in Nov 14, but at that time university enrollment deadline finished
- High commission emailed me advising me to withdraw the application.
-Withdrew the application and applied again with 4 days for Jan 15 session
-Entered UK with valid visa in Jan 15
-This leaves a gap of 10 months

Question: Any possibility of applying discretion since:
- curtailment notice was not correctly served
- application for student visa was made in Sep 14 within 6 months of leaving the UK, which had to be withdrawn as high commission took extremely long processing time
- court case is dismissed in 2017, judge acquitted me from allegation/charge

Waiting for your response. Thanks

[brent123]

This isn't even an issue looking at your absence. If you left the UK in March 2014 and only returned in January 2015, you have broken the continuous residence as your absence is more than 180 days.

Even if your visa was not curtailed, you would still have broken your continuous residence for ILR based on long residence.

when the 180 days are broken, can he count from the day of the latest retun onwards for the continuous residence from scratch again? in this case, Jan 2015?

[CR001]

This isn't even an issue looking at your absence. If you left the UK in March 2014 and only returned in January 2015, you have broken the continuous residence as your absence is more than 180 days.

Even if your visa was not curtailed, you would still have broken your continuous residence for ILR based on long residence.

when the 180 days are broken, can he count from the day of the latest retun onwards for the continuous residence from scratch again? in this case, Jan 2015?

Yes but would have to find visas he qualifies for to make 10 years. Student visas only count for 10 years long residence ILR

[LMP098]

Hi,

I have a single absence from the UK for over 180 days.
- Left UK on Mar 2014 with a valid spouse visa, which was curtailed in Aug 2014 (I was only aware of this when requested SAR in Feb 2017)
- Applied for student visa in Sept 2014, British High Commission in India took long to make decision, by the time they decided to give visa university extended enrollment deadline passed
- In Nov 2014, British High Commission in India emailed me advising me to withdraw the visa application since university could not extend the enrollment date
- Withdawn previous visa applied as advised by High Commission and re-applied for Jan session
- Entered in Jan 2015 with valid visa
- This leaves a gap of 10 months

My question: Will there be any discretion applied since application was made within the 6 months period of leaving the UK and British High Commission in India took long time to process the application???

Thanks.

Can someone help me to understand when is discretion applied when someone is absent from UK more than 180 days in 10yr ILR route?