10 year residency ILR - compassionate grounds advice

[tyckoon]

Hi all,

I have been reading the forum for a while now. As I am approaching the submission date of my application I decided to clear something for myself.

I will be applying based on a 10 year residency rule next week. I came here on July 5, 2006. I qualify on July 5, 2016 but as the rules state that I can apply 28 days in advance, I thought that I want to get this out of my way ASAP. Hence, I chose to apply on June 10.

My application would have been straightforward if it was not for the requirement to be away from the UK for less than 540 days. I was 14 years old (2004) when my father was diagnosed with cancer. Doctors gave my father 2 weeks initially. However, he survived. In about a year (2005) it became evident that my father will die. It was a matter of time, he was struggling. My parents did not want me to see my how my dad is slowly dying. So i was sent here in 2006 to study GCSE (1 year fast-track course). Up until his death in June 2008 I travelled back and forth every half term and sometimes outside of the term dates to see him. I treated every trip as my last chance to say goodbye. He changed with every trip I made and everntually he died in 2008 during my AS-level exams. After his death I was in depression and saw school counseling service. I was allowed to travel outside the term dates because my mother and I needed each other to overcome such a tragic event. As you probably understand by now (if you had the time read all of the above), I would like to exercise compassionate grounds. I have a death certificate stating the cause of death and the period of illness. My school is also preparing documents to prove that this indeed happened and that I struggled a lot during A-levels and GCSEs.

After that I only travelled back to the country where I was born a couple of times. However, I would still like to waive a few of those trips as well. For example, twice I travelled back to the "home country" because I was not allowed to switch from Tier 5 (Government authorised exchange) to Tier 1 (Entrepreneur) in the UK. I treat this as a forced leave. I had to cancel my rental agreement and find storage for my things. I would have applied in the UK if I had the chance. On another occasion, I had to travel back to the "home country" to change my passport to a new one as I turned 20 years old (that's a requirement of that country).

If I waive trips taken due to my father dying / berievement period, Tier 5 to Tier 1 forced out of country application, Tier 4 to Tier 5 forced out of country and the trip to change my passport, I will have 400 days. However, if I include those trips, I will have 617 days.

I have the stamps for all the trips taken from 2010. However, I do not have my previous passport which covers the period between 2006 and 2010. Having said that, I did a SAR request where I noticed that I indicated all the trips I took between 2006 and 2009 back in 2009 when I still had my old passport. That leaves the 2009 to 2010 period for which I requested a rental agreement from my university for my room on campus. It will show the dates for which I paid.

If anyone was patient enough to read through all of the above, what are your thoughts on my case? I have 2 MScs and a BSc from top 15-20 business schools. I also worked in IB for a year and now set up my own advisory firm. I have references from my friends (all British) and will request references from my past employers.

[shockwave1986]

ILR has been granted for compelling and exceptional circumstances, I recall one post where a boarding school student spent in total 1000+ days due to holidays. It was initially refused but granted after a proper case was made.

If your application does not fall within the immigration rules i.e. not more than 180 days in any 1 year period and not more than 540 over the 10 years, then it is at their discretion. Make sure you provide all evidence of compelling/compassionate/exceptional reasons as well as ties with the UK (family, partner, relatives...etc).

Applications like this, which has a human rights element to it, have to be considered under article 8 of the European Convention of Human Rights. Still there's no guarantee that it will be successful as lately 2 of us in similar situations got refused at first. You may find this a helpful read:

http://www.immigrationboards.com/indefi ... 09907.html

Good luck

[tyckoon]

Hi there! Thank for the reply, quite frankly I stopped checking my post because I thought no one would reply.

So I'm applying on Tuesday in Croydon. Booked a premium service. In terms of the docs - got references from employers and friends (friends provided photos of the IDs to show that I did not fabricate anything), NHS medical records which show I was in depression after my father's death and was prescribed anti-depressants, letters from my housemaster and assistant head of pastoral care from my school confirming my dads death and my struggles, my dad's death certificate, translated letter from my dad's doctor confirming the diagnosis and the length of the illness, two letters from guardianship agencies confirming the dates when I travelled to see my dad dismissing host family accommodation. I also attached translated letter from my father written before a chemotherapy, short letter from our school chaplain received shortly after my dad died and school performance reports which also mention my dad's death and the fact that I struggled with it which sort of impacted my a-level results.

Would you say that's enough evidence to make a strong case for exercising discretion? I also recalculated the number of days of absence, I'm on 579, which is 39 days short from 540.

Looking forward to the reply! Thanks in advance!

[tyckoon]

In terms of my ties - submitting payslips from previous jobs, tenancy agreement, utility bills, council tax, a financial research I worked on while was at uni which received coverage from press and evidence of buying shares in a small company and my directorship position there. I'm on Tier 1 entrepreneur ATM.

[shockwave1986]

Well i would advise against the premium service as these tend to be more appropriate for straightforward cases. My solicitor advised against it but since you already booked it, it's worth a shot. In any case it's saving you 6 months waiting time - mine took 5 months for them to decide.

As for your evidence, as strong as it is I feel it's depending on who's your caseworker - mine was a complete idiot. If you're lucky they will understand the medical report and apply the relevant policy. Otherwise you might need to be prepared to go to appeal.

In your application it would be advisable to raise article 8 of ECHR especially if you have family life in the uk.

[tyckoon]

Thanks, so it seems everything comes down to luck in being assigned a caseworker who will be kind enough to exercise discretion in my favor. Not sure I like how it sounds.

Well, but what can I do, I guess. Is there a way for me to talk to a caseworker at the centre? I mean, I do genuinely understand that there a lot of people asking to exercise discretion due to some sort of compassionate circumstances. However, it seems almost barbaric to me not to exercise discretion if someone's immediate relative died. I know some people apply and say, hey, I had to take care of my mother or grandfather because they were ill. But I, on the other hand, lost someone who was dying of cancer for 3 years when I was still a kid. For me the excess of 39 days of absence meant that I could see my father a little bit longer before he died. I will never see him ever again so those 39 days gave me a chance to say goodbye really. The rules are stupid, the guidance is stupid. I'm so pissed.

[Casa]

The issue is that PSC Case Workers are of a junior level without the authority to decide complex cases.
7. When you can't use the service (includes the following)
someone whose case is complex because of personal circumstances

[tyckoon]

So in a case like mine, are they more likely to refuse or take a couple of weeks to make a decision?

Thanks for the reply by the way!

I understand that you are not a legal professional but a moderator btw. Just wondering if you are aware of what happens usually - refusal or decision to take more time for consideration?

[ohara]

If on the day they decide your case is too complex to decide there and then, it will just be added to the postal queue with all those who didn't pay for the premium service.

[secret.simon]

I would still like to waive a few of those trips as well.

Errr, you don't waive the trips, the Home office exercises discretion in waiving the requirements. All you can do is request that they exercise discretion.

I think you have a very good case to request discretion for the absences relating to your father's illness and its immediate aftermath. That can certainly be considered under compassionate grounds. I think you have mentioned that you have the relevant paperwork (doctors' letters, reports, etc) and all you need is a coherent and cogent covering letter comprehensibly laying out why discretion should be exercised.

Regarding the absence for switching visas from T5 to T1 and the renewal of passports, etc, I doubt that would be considered under compassionate circumstances. That is simply you following the law and meeting legal requirements, as you should. I doubt that absences under those categories would be included under compassionate leave.

Leaving aside just the leaves that were a direct consequence of your father's illness and passing away, how many days of absence do you have in the 10 years?

And has any single period of absence exceeded 6 months?

See Pages 13-14 of the Long Residence Guidance.

If the applicant has been absent from the UK for more than 6 months in one period and 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

Things to consider when assessing if the absence(s) was compelling or compassionate are;

for all cases

• you must consider whether the individual returned to the UK within a reasonable time once they were able to do so

for the single absence of over 180 days:

• 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
  
  you must also consider the reasons for the absence

for overall absences of 540 days in the 10 year period:

• you must consider whether the long absence (or absences) that pushed the applicant over the limit happened towards the start or end of the ten year residence period, and how soon they will be able to meet that requirement
  
  if the absences were towards the start of that period, the person may be able to meet the requirements in the near future, and so could be expected to apply when they meet the requirements
  
  however, if the absences were recent, the person will not qualify for a long time, and so you must consider whether there are particularly compelling circumstances

All of these factors must be considered together when determining whether it is reasonable to exercise
discretion.

Note that the guidance suggests that if the absences occurred towards the beginning of the long residence, you could be issued with LOTR (leave outside the rules)-not ILR-till such a time that you qualify for ILR without the need for discretion. So, be prepared for that outcome too.

[tyckoon]

Thanks guys.

I have actually prepared a witness statement where I explained all the above in details. It is not long but I think it does give a different flavour to my application. Also a lawyer who has been helping me with the process prepared a cover letter from her also explaining my circumstances and asking to exercise discretion over my fathers illness.

If I subtract absences due to my fathers illness, my Total DoB will be 532.

On your note about passports, I understand your point. However, I had a valid visa, active tenancy agreement which I had to terminate so in my point of view, they forced me to leave when I might had as well applied in country. Not fair really

[IndianConsult]

Hello,

I gather that you were going to apply on Tuesday. I hope your ILR was granted.
would be great if you can update the group about your experience. Thanks.