Article 8 and compassionate grounds for overstayers

[kg1983]

My case is a bit complicated.

I entered UK on 6 months visitor's visa as a dependent of my parents. I was 17 at the time. My father then applied for extension as Retired Person of independent means which was refused for having no entry clearance and that he was not 60 years old at the time, our solicitor suggested he should apply for business visa and he did.

Once again application was refused for not having entry clearance. Now during all this time we have been living with my dad's brother (British citizen) who was suffering from Lungs cancer. Based on his illness, my father was eventually allowed by the home office to apply for business visa and the requirement of entry clearance was exceptionally "waived" by the immigration minister. All business papers were submitted but application was refused because the business plan was not good enough, further representations were made but without any results.

HSMP application was made but also refused even though we thought he qualified but the HSMP authorities didnt think his 30 years of business experience was a "graduate level" experience (rules were different at the time).

On solicitor's advice, and since we had been living with dad's brothers (my uncle) family we applied for exceptional leave to remain on Article 8 private and family life grounds. My uncle also died in 2003. Our application was refused and the right of appeal was given. Our appeal was heard 1 and a half years later and the judge dismissed the appeal.

We had five days to apply for reconsidering and we requested the tribunal to give us more time because it was the Christmas time and the barrister was on holidays and none of us were able to identify material error of law which is required to apply for reconsideration. The tribunal didnt give us more time but the senior immigration judge read court's determination and concluded that the previous judge didnt consider the "private life" aspect of our case and therefore reconsideration was ordered.

Reconsideration hearing was not held for another year. Our barrister (reputed human rights barrister) advised us to withdraw the appeal and approach the home office again since 2 and a half years had been passed since the initial decision. According to him, the senior immigration judge will not take into consideration these 2 and a half years and will make a decision based on any private life developed before the initial decision was made by the home office.

We did all that. the home office has our application since March 2007. No decision has been made yet. During all this time, i was studying. I did my A-levels and then a degree as a full time fee paying student. My father will be 65, i am 24 with a 2:1 degree and cannot work and we are running out of money.

Now my question is whether the home office will take into account the following:

1) We have been living as a family unit with uncle's family since last 7 years

2) Father will be 65 in March 2008 - is there an age concession, would the home office consider his age when they make a decision?

3) I am a graduate with a decent degree and dont need public funding

4) Continuous representations

I know there are some professionals on this forum so any help would be great.

[avjones]

Where are you from?

You have good representation by the sound of it, what do your barrister and solicitor say?

[kg1983]

solicitor just gives hope but when i read courts determinations for Article 8 and read the immigration rules i feel so hopeless. We are from Pakistan.

The human rights barrister advised us to approach the home office directly with a fresh human rights application on Set O form, rather than going to reconsideration hearing so we have done that and withdrew appeal. I personally thought it made sense because if the court gives a positive determination, it sets a precedent, whereas the home office doesnt really discuss individual cases or put them in public domain.

The home office hasnt replied yet and to be honest I am not looking forward to their decision. They will refuse yet again, citing propotionality.

So basically I wanted to know if you or anyone know of any similar cases where the home office has granted ELR or ILR due to the length of the stay, age of the applicant, no criminal record, sufficient funds etc. Its been 7 years so what are the chances?