ILR refusal due to absence more than 180 Days

[abdelrahman.awwad]

Dear Members and Admins

Hope this message finds you well, Unfortunately I received an ILR refusal letter yesterday.
The reason of Refusal was the ''excessive absence from the UK in the first year 2011 that exceeded 180.
It was for compassionate reasons , all Hospital reports death certificate were translated and sent with a cover letter.

Now, they are giving me an Administrative Review Option.
'' The refusal stressed on the term ''excessive''I will justify by saying that compassionate absence was not tied up to a certain number of days above the 180 rule'' .
I am not so optimistic about the output of the AR, however I am confident that If I re-apply with a fresh ILR application the absence gap will not be a problem any more.

The Questions is :
Will the 6 month wait time count towards my stay ? and How do I re-apply without BRP Cards ''they destroyed the old ones'' ?


Time lines & Details :
Tier1 General - 5 Years Route
Posted 04/03/2016
Biometrics Letters 14/03/2016
Biometrics Taken 19/03/2016
ILR Refusal Received 16/09/2016
BRP Cards Destroyed by HO

Documents Sent
A Cover Letter explaining the compassionate reasons for exceeding the 180 days Rule
Cover Letter | Separator Pages
Filled Set (O) ILR form
12 Bank statements | Payrolls
Biometric cards
4 Passports main+ 3 dependents
SA 302 for contracting Period
LIUK Certificates
Eng language cert
Graduation cert
Birth Certs.

[CR001]

How long was the absence?

What was the initial visa start date and entry date to the UK?

When does or did your visa expire?

[abdelrahman.awwad]

Thanks for you Quick Response CR001
221 Days
Issued on 20/Dec/2010
First entry i.e. Visa Started 01/04/2011
Extended on 20/12/2012
Expired on 14/03/2016

Kind Regards

[CR001]

What are the dates of the absence??

Who was the compassionate/death absence in relation to (family member etc)?

[abdelrahman.awwad]

The absence Between April 2011 - Sep 2011 & Sep 2011- Mar 2012
The Gap is in 2011 the total absences couldn't be divided with 2012 unfortunately.
Family member was my Father

Kind Regards

[CR001]

So how long after you entered the UK on 1/4/2011 did you leave again?

You were basically absent for almost a whole year (April 2011 to March 2012)??

[abdelrahman.awwad]

13-Apr-11 18-Sep-11 158 Days
24-Sep-11 30-Mar-12 188 Days
27-May-12 03-Jun-12 7 Days
27-Apr-13 13-May-13 16 Days
25-Jul-14 09-Aug-14 0 Days

[CR001]

You applied for ILR on 4/3/2016, so the first years absence will have been calculated from 5/3/2011 to 4/3/2016. This means that your absence between 14 April 2011 to 4/3/2012 would have been the problem as I get 319 days, excluding the time before arriving in the UK.

It might be easier to break your absence down in the 5 qualifying 12 month cycles, e.g. 1/4/2011 to 31/3/2012

13-Apr-11 18-Sep-11 158 Days
24-Sep-11 30-Mar-12 188 Days

[abdelrahman.awwad]

Yes this is What I did, in the refusal letter they did not specify which absences caused the Gap however they generically said ''though they looked in the compassionate proof but still not acceptable due to excessive absences''
mathematically I did exceed the rule, and they did not consider any circumstances . So I don't think the AR will change any facts'' however my only Justification that it wasn't specified how many compassionate/compelling days are allowed on top of the 180 not in the ILR Guidance nor in the Immigration Guidance .

Now, I have applied my post and the ILR processing took 6 month .
If I submit a fresh application the calculation will look like this:

Year 1 18-Sep-16 18-Sep-15 0
Year 2 18-Sep-15 18-Sep-14 0
Year 3 18-Sep-14 18-Sep-13 15
Year 4 18-Sep-13 18-Sep-12 90 16 7 total:113
Year 5 18-Sep-12 23-Sep-11 98

This Shift of time reduced the absences on 2011 to be 98 days & 2012 113
It looks acceptable now .
So can I submit a fresh ILR Application,after AR ( assuming AR is rejected) ? or not ?
and how am I going to submit without the Old BRP Cards ?

[CR001]

Any absence over the limit is at discretion of HO/caseworker. Your absence is excessive in year 1, so they did not apply discretion. Given that you have no valid leave, I am not sure if you can apply again.

You should probably have applied for Tier 1 G extension before the route was closed if you knew your absences were so high and could be a problem. This way you could have waited till Sept/Oct to apply for ILR.

I was interested to see your absence per 12 months with the dates I indicated.

[abdelrahman.awwad]

Dates of absences posted above @16:21
I did apply for extension before it's closure, but Unfortunately the extension was also rejected.The payment transaction failed,HO returned the forms + documents after the closure date.It was considered as an invalid extension application. I didn't have an option. Also those absences I took in 2011 wasn't an option .

Are there any options after AR rejection ?

Kind Regards

[CR001]

13-Apr-11 18-Sep-11 158 Days
24-Sep-11 30-Mar-12 188 Days
27-May-12 03-Jun-12 7 Days
27-Apr-13 13-May-13 16 Days
25-Jul-14 09-Aug-14 0 Days

I saw this which is just a list of the dates you were absent but I asked for them to be shown as below, which if you applied in March, is what your 'qualifying period' is.

1/4/2011 to 31/3/2012
1/4/2012 to 31/3/2013
1/4/2013 to 31/3/2014
1/4/2014 to 31/3/2015
1/4/2015 to 31/3/2016

[abdelrahman.awwad]

Hello CR001,

like this ?
Away #1 Away #2 Total/yr
Year 1 02-Mar-16 02-Mar-15 0
Year 2 02-Mar-15 02-Mar-14 15
Year 3 02-Mar-14 02-Mar-13 16
Year 4 02-Mar-13 02-Mar-12 28 7 35
Year 5 02-Mar-12 01-Apr-11 158 160 318

[CR001]

Hello CR001,

like this ?
Away #1 Away #2 Total/yr
Year 1 02-Mar-16 02-Mar-15 0
Year 2 02-Mar-15 02-Mar-14 15
Year 3 02-Mar-14 02-Mar-13 16
Year 4 02-Mar-13 02-Mar-12 28 7 35
Year 5 02-Mar-12 01-Apr-11 158 160 318

Not surprised your ILR was refused. You were hardly in the UK in Year 1, this is excessive absence.

[IndianConsult]

Can he shift to Tier 2 General now while in the UK?

I gather that 'qualifying period' is when one had valid leave to remain and not when one is legally in the UK e.g. delay due to postal applications.

[CR001]

Can he shift to Tier 2 General now while in the UK?

I gather that 'qualifying period' is when one had valid leave to remain and not when one is legally in the UK e.g. delay due to postal applications.

The OP does not currently have any valid visa. His Tier 1 has expired and he is not covered by Section 3C. He would have to leave the UK to apply for Tier 2 General and likely the 12 month cooling off period would also apply.

There are absence limits for the PBS routes, so yes, one is expected to abide by these and be IN the UK for the purpose the visa.