Applying for Long residence ILR with over 1400 days absences

[dnf]

Dear All,

I have an appointment on Thursday, 2nd July 2015, in Croydon.

My case is as follows:

First came to UK - Feb 2004, which makes it 11 years and 4 months on the application date.

Personal absences - 300 in 11 years and 4months
Compassionate absences - 1100 in 11 years and 4 months

I will be asking for the Senior case worker to apply discretion to disregard 1100 compassionate absences.

Compassionate reasons are that my wife has a chronic illness which was dormant and she was with me in UK till 2010. The illness came back and it was advised by her doctors in Canada and in UK to be followed by her own specialists in Canada. I have doctors letters (with medical reports) confirming that the illness has effected her functionality and she requires constant attention from myself, which has triggered the 1100 absences.

Ties to UK are:

1. Business for over 7 years
2. Letters from charities about my involvement in the community (3 different charities)
3. Most of my estate is in UK
4. A UK practicing certificate holder that only allows me to practice in UK
5. Letters from clients with their UK passport copies.
6. Copies of articles that I wrote and were published in an online magazine
7. Invitation to become a guest speaker for an Entrepreneur business show.

Other documents:

1. UK Tenancy agreement showing I have a home in UK.
2. Letter from orange showing I have been in contract with them since 2004
3. Letter from the gym that I have existing membership.
4. Professional indemnity insurance on the company
5. Employers Liability insurance on the company.

What do you experts reckon? Anything else I should add?

[Zee ali]

Dear All,

I have an appointment on Thursday, 2nd July 2015, in Croydon.

My case is as follows:

First came to UK - Feb 2004, which makes it 11 years and 4 months on the application date.

Personal absences - 300 in 11 years and 4months
Compassionate absences - 1100 in 11 years and 4 months

I will be asking for the Senior case worker to apply discretion to disregard 1100 compassionate absences.

Compassionate reasons are that my wife has a chronic illness which was dormant and she was with me in UK till 2010. The illness came back and it was advised by her doctors in Canada and in UK to be followed by her own specialists in Canada. I have doctors letters (with medical reports) confirming that the illness has effected her functionality and she requires constant attention from myself, which has triggered the 1100 absences.

Ties to UK are:

1. Business for over 7 years
2. Letters from charities about my involvement in the community (3 different charities)
3. Most of my estate is in UK
4. A UK practicing certificate holder that only allows me to practice in UK
5. Letters from clients with their UK passport copies.
6. Copies of articles that I wrote and were published in an online magazine
7. Invitation to become a guest speaker for an Entrepreneur business show.

Other documents:

1. UK Tenancy agreement showing I have a home in UK.
2. Letter from orange showing I have been in contract with them since 2004
3. Letter from the gym that I have existing membership.
4. Professional indemnity insurance on the company
5. Employers Liability insurance on the company.

What do you experts reckon? Anything else I should add?

Difficult to be certain.

1100 days r much much above the allowed absence 540 days.

Try your luck

and dont forget to update here.

Regards

[dnf]

I agree with the certainty. However, my gut feeling is saying that it will be approved.

I will keep you guys posted and may not be same day tomorrow as I may be very busy celebrating.

[dnf]

My gut feeling was proven wrong and I was refused today. However, I have a few things to add, which seems out of ordinary:

1. Senior caseworker refused to give discretion. However the caseworker did not reject my application and called me to provide further explanation. She than told me that she will try and ask the senior case worker again. She did and got refused. In my opinion, she was sympathetic towards my case.

2. Medical reasons were acknowledged but the absences were way off, which was the reason it was rejected.

3. I have an existing leave till 17/12/15 - I am not sure why was I given the right to appeal? Again I believe the case worker was sympathetic

4. One paragraph, that i find rather strange on the rejection letter is 'It is acknowledged that your wife has medical and chronic condition and you were required to assist your wife. However, as per your absences, it is not considered that you had any family life in UK and, therefore a discretion can be used in your favor in this regard (In my opinion, she was suppose to write a discretion cannot be used in your favor and mistakenly wrote can)

In summary, my gut feeling may not have been wrong and may just prove right after the appeal. I may be able to only argue on the basis that if it says on the rejection letter that a discretion can be used in my favor and medical situation was acknowledged than why was it not used?

I think, I am aware of some situations, where mistakes such as these had proven costly for UKVI. I am quite certain that the tribunal will raise the question that if the case worker believed discretion could be used in my favor than why was it not used?

Plus, on the guidelines, it does not say how many absences could be disregarded so 541 or 1400 is irrelevant. If the medical situation is acknowledged than how come the discretion was not given?

Plus, I have many other reasons as follows:

1. Business in UK with employment (Genuine Business)
2. Only allowed to practice in UK so if I want to practice anywhere else, I will have to pass that country exams plus training, which would effect the family life.
3. She mentioned, why cant you hire help where your wife is so you don't have to travel that much, which means I would live away from my ill wife and 3 kids - human rights (not on rejection)
4. She mentioned why cant my wife live in UK, when it was advised by a doctor in UK and a doctor in my wife's country that she should be followed by her own doctors. Again, was she suggesting that we go against the qualified doctors advice? (not on rejection)

What are your thoughts?

[physicskate]

It sounds like you essentially live in Canada... so I have to ask: why do you want ILR?

[secret.simon]

if I were your caseworker (I'm not one), I would consider your case quite weak. By taking so many days outside the UK, you have essentially demonstrated to the UKV&I that you have a mobile lifestyle that is not linked strongly enough to the UK to warrant granting ILR.

"However, as per your absences, it is not considered that you had any family life in UK and, therefore a discretion can be used in your favor in this regard"

.
Can you strengthen the family life aspect of your case? That is, can you prove that your family life is strongly linked to the UK, such as children being integrated in UK schools, etc? I would also demonstrate that a high proportion of my estate (personal and real) is based in the UK.

That your qualification is UK only is neither here nor there. Given that you have earned a professional qualification in the UK, you may be able to either export it to another country or gain the equivalent qualification in another country.

Plus, on the guidelines, it does not say how many absences could be disregarded so 541 or 1400 is irrelevant

The whole point about "discretion" and "guidelines" is that they are exactly that. They are not cast-iron rules, but an approximation of what a caseworker would look for. Essentially, the caseworker needs to be convinced that you are settled in the UK , that the "center of your life" is based in the UK (I'm borrowing language from the EEA Regulations relating to the Surinder Singh route and it is by way of approximation). Were you able to do that, I think discretion would then be applied.

I think the senior caseworker may have written an explanation into your home office file as to why discretion was not applied. You may want to apply for a SAR to the Home Office.

[dnf]

I do spend quite a lot of time in Canada, which is because my wife has been followed by the same doctors when the illness started in 2001. This was even recommended by a UK doctor. When the illness was dormant, she was with me in UK.

Why do I want ILR? As explained above, I have a genuine business in UK for the last 5 years and running the business itself has it issues plus the hassle of having to renew my visa every 2 -3 years (Entrepreneur visa) is not something I particularly enjoy.Also, I have to be in UK to renew it, cannot travel till I get the passport and the BRP, which could take months (unless premium appointment is available). On top, I have numerous good individuals who I cannot hire because they are not settled in UK (Entrepreneur Visa requirement).

I understand that the case is weak, question is, why the letter say that 'Discretion can be applied in my Favor' and no discretion was applied?

Also, why was I given the right of appeal when my existing leave is not expiring till 17/12/15?

[secret.simon]

I understand that the case is weak, question is, why the letter say that 'Discretion can be applied in my Favor' and no discretion was applied?

Also, why was I given the right of appeal when my existing leave is not expiring till 17/12/15?

As you mentioned, it could be a typo ("can" instead of "can't").

Another way of reading the sentence is "However, as per your absences, it is not considered that 'you had any family life in UK and, therefore discretion can be used in your favor in this regard' " (i.e. treating the part of the sentence in single quotes as a sentence by itself).

Do you have any family in the UK apart from your wife, who would count towards family life? Or is your connection to the UK solely your business based on your Entrepreneur visa?

As regards the right of appeal, a decision has been taken on an application for ILR, which was rejected and you have been given a right of appeal. That is irrespective of current leave, because the right of appeal is related to the rejected ILR application and has nothing to do with your current leave.

If you were to appeal, as I said, I think the bar for you to prove is that you are settled in the UK, that it is the center of your life. Until you can do that, you are at the mercy of the evershifting sands of the Immigration Rules.

[dnf]

You are right Simon, it could either be a typo or meant to be written that way. However a discretion can "not" be used in your favor would have made a lot more sense. I will use it either way to create diversion.

The only option I have left is to argue based on compassionate grounds. As they have agreed that the chronic condition existed and I was required to assist my wife than a discretion should have been applied based on their guidelines. Also, as per the guidelines, it state that a discretion should be considered based on private/family life (which lets say I had none in the last 5 years in UK, although I will argue the private life, which I obviously had), if the applicant had any business (which I had), if the applicant was involved in the community (which I am, around 4 charities) and if there were any substantial investment (which I have). They cannot just use one part of their guideline and conveniently ignore the other parts.

I am researching tribunal decisions and guess have found one, where absences were disregarded by the tribunal, based on similar circumstances.

The letter also mentioned that I have shown no intentions to live with my family in UK. I will argue this as well as I have shown the intentions by living with my wife in UK before her illness and told the caseworker that I will be bringing them back once her illness is dormant. As these intentions depend upon circumstances outside my control (don't know when her illness would go dormant), the only way, one could have shown intentions was from previous course of actions, which I have....

In the end, I am neither worried nor stressed as I believe in giving my 100%, which I will by going to tribunal and if needed upper tribunal. If I don't get it than ILR was not meant for me and something better would show up.