ILR Refused due to new absence rules of 2016 - Please Help

[javed29]

Hi All,

Home Office has refused my ILR application (based on Tier-1(G) )on the grounds that I exceed 180 days allowed absence in each 12 month periods that make up the 5 year continuous residence period in UK. Home Office have included the time between Issue of Entry Clearance and First Entry towards absences.

I submitted my application by Post on April 19, 2016. At that time, the Continuous Residence Calculation guide on gov.uk website was v 12. According to that document, time between Issue of Entry Clearance and First Entry is not considered as Absence and does NOT count towards 180 days allowed absence in each 12 month period.

However, on April 25 2016, the website was updated with v 13 of that guidance document and in that version, they made changes to the absence rules. According to that new document, time between Issue of Entry Clearance and First Entry is counted as Absence.

I am confused as to why Home office uploaded this document on April 25 and why it was not available when I downloaded it and read it before submitting my ILR application on April 19.

Can anyone help me and guide me as to when these new absence rules have come into affect and whether they should have applied to my application?

I have been given right to Admin Review that decision and I will be doing that in next few days. However, I am not sure whether I will be able to convince Home Office that they should have applied old rules to my case instead of new ones as the new ones were published 6 days after my application.

My absence in first year are as follows:
Absences after First Entry: 155 days
Absences before First Entry: 46 days

If old rules are applied, my total absence would be 155. But with new rules, total absences in first year would be 155+46 = 201 which exceed 180 days.

Please advice. Do I have any chance for Admin Review?

Thanks.

[Abc499]

If you apply on 19th April then the absence should be counted as
(continuous period is always counted backwards from the date the ILR application is submitted)

Year 1 19 April 2016 to 20 April 2015=
Year 2 19 April 2015 to 20 April 2014=
Year 3 19 April 2014 to 20 April 2013=
Year 4 19 April 2013 to 20 April 2012=
Year 5 19 April 2012 to 20 April 2011=

I am afraid, I do not think there was any changes on absence calculation on 25th April 2016. it was before 25th April too when you applied on 19th April. If you enter in UK within 6 month of entry clearance date then from the entry clearance date is your eligibility period start date (con residency) but the entry clearance date to entry date will be counted towards the 180 days absence, if entry after 6 months then the eligibility period start date will be from the entry date and this rules was on 19th April too when you applied.

However case worker can apply discretion (I do believe they do too) on this to grant ILR when absence more than 180 days if they convinced with your situation, but for this you should explain and provide reasons/evidence for the excessive absence with your application. Did you provide anything, any evidence/explanation to consider or completely did not mention anything! in admin review probably they only see caseworker made any mistake or not, on your case you says first year absence 201 days! so may be they did not made any mistake.

if you have option to apply again and now counting backward is not crossing 180 days in a year then reapply probably easy way or else not much choice except carry forward this.

wait and see also, if senior members can advise anything.

[javed29]

Thanks for your detailed response.

So you think that even though "ILR:Calculating Continuous Period in UK" guidance document is published on April 25, 2016, the new absence rule changes were already in place and effective from April 6, 2016?

I was surprised that if the changes were effective by 6th, why it took HO to publish the updated guidance document three weeks later instead of on 6th.

Regarding the evidence of absence, there was no evidence submitted as it was normal absence. The absence rules were not changed since 2012 and according to those rules, First entry was allowed within 90 days and delay towards first entry was not treated as absence. Somehow, HO decided to amend this very rule after 5 years in 2016.

They have given me Admin Review rights and I will be submitting that next week.

Regarding Re-Applying for ILR, if I apply now, counting 5 year period backwards from new application date will let me qualify. But I am not sure what is the state of the time where my ILR was in processing state. I applied in April 2016 and got my refusal decision in September 2016. So my understanding is that those 5 months will count as legal stay since application was with HO. I am not even sure if I can re-apply?

Can anyone advise whether I can re-apply for ILR after a refusal and whether I can include application processing time for refused application for my fresh ILR application? Please help and advice.

Thanks.

[UKBALoveStory]

You applied on April 19, 2016. From April 19, 2016, please fill the following

April 20, 2015 to April 19, 2016... how many days out of UK
April 20, 2014 to April 19, 2015... how many days out of UK
April 20, 2013 to April 19, 2014... how many days out of UK
April 20, 2012 to April 19, 2013... how many days out of UK
April 20, 2011 to April 19, 2012... how many days out of UK

Your visa stamp date?

Your first entry to UK (exact date)?

Your visa was granted out of country on inside country?

[javed29]

Absences:
5th year: 0
4th year: 0
3rd year: 21
2nd year: 21
1st year: 155 (after entry)

Stamp date: May 2, 2011

First Entry: Jun 18, 2011
First Exit: Jun 25, 2011
Second Entry: Nov 28, 2011

Visa issued outside UK