ILR review, knowing my rights

[ukstay]

Firstly I would like to thank you all for being generous with your time and to share your knowledge on immigration matters with people who come to the forum for advice. I would like to ask about my position in my case and would be grateful with any feedback.

I had applied for ILR and the application got back refused on the ground of my trips spent abroad over 10 years . I was not given right to appeal since my current visa is valid till end of this month. I managed to get my MP to interfere and obtained a review since I feel my case was not dealt with great consideration, despite all the backed up documents ( I had to travel out of necessity, being an active classical musician and also had to spent sometime abroad when my father died of cancer ).

I would like to know what options will I have should the review come out negative and made after my current visa expired

a) Would I be able to obtain any further extension in country?
b) What would be my immigration status if the review is negative ( is 28 days given and what is my status within this 28 days if given ? )
c) Shall I wait for the review since I know that I have a strong case or shall I reapply for a new IRL when I will be granted with an appeal where I can defend and argue for my case in court if needed and not become an overstay in this country.

Leaving the country or to apply for other visa ( student ) extension is not an option as I have few important solo recording projects lined up in the UK and only the IRL would give me right to work as freelance musician.

Many thanks again and looking forward for your feedbacks.

Best wishes

[Wanderer]

What type of visas have you been in UK on?

[ukstay]

Thanks Wanderer for getting back,

I have been on student visas continuously and would like to take up work offers since I have been very restricted with my previous visas ( I had to agree to travel expense only for all the performing activities done in this country ).

I would also like to note that this is not only about me and my application, it is more about the inconsistency with Home Office's decision where my colleague's application with the same situation - same amount of time spent abroad for professional reasons- had been approved without any complications.

[paulp]

ukstay, please do appreciate that, from what you say, your excessive number of days outside the country is a non-negligible problem for your ILR. It is up to the caseworker to exercise his discretion, because you apparently are not eligible under the normal criteria. Your friend having benefited from his caseworker's discretion does not mean that you will automatically benefit from your's.

[ukstay]

Many thanks paulp for your reply. I do appreciate that every case is treated with it's own merit but me and my colleague do have the similar case and this is where I got puzzled ( I have even stronger evidence why I had to travel ). I wonder what the result would have been if my application got to the same caseworker as my friend's? However, my question here is will I get right to appeal to the review's decision should it come out negative ? Thanks again.

[Siggi]

Ukstay,
If I understand you correctly, you have been on a student visa for 10 years.
If that is the case you have no grounds to even apply for ILR, as been on a student visa does'nt count towards ILR.
Your only route into the UK will be to return to your country of orign and apply for some form of visa either based on your qualifications or a job offer from a company in the UK, who may or may not wishes to sponors you.

[ukstay]

Thanks Siggi for your reply. Anyone who has been staying in this country legally for 10 years can apply for ILR under long residence rules, students or else.

[paulp]

Ukstay,
If I understand you correctly, you have been on a student visa for 10 years.
If that is the case you have no grounds to even apply for ILR, as been on a student visa does'nt count towards ILR.
Your only route into the UK will be to return to your country of orign and apply for some form of visa either based on your qualifications or a job offer from a company in the UK, who may or may not wishes to sponors you.

Siggi, his 10 years of continuous student visas are ok but it's the number of days absent from the country that's the problem.

[paulp]

Many thanks paulp for your reply. I do appreciate that every case is treated with it's own merit but me and my colleague do have the similar case and this is where I got puzzled ( I have even stronger evidence why I had to travel ). I wonder what the result would have been if my application got to the same caseworker as my friend's? However, my question here is will I get right to appeal to the review's decision should it come out negative ? Thanks again.

Again, it is a question of the caseworker exercising his discretion and it will certainly depend on his mood on that day, etc.

As you already have existing leave, there was no right of appeal for the original refusal and the only alternative was a review/reconsideration. I don't think there will be any more appeal/etc.

Perhaps if the review is not postive, you should consider employing an immigration specialist to construct a case for a new application?

[paulp]

Just to confirm, the refusal was because of days spent abroad, not because of visas renewed abroad or at the immigration counter while the previous leave had already expired, i.e. the dreaded "gaps" in stay.

[Wanderer]

I just wonder if part of the reason for the refusal is that the OP is working (albeit for expenses only) and maybe this could be considered 'persuing a career'?

Playing Devil's Advocate....

[paulp]

Ukstay, why don't you give us the exact words of the refusal? Maybe we'll be able to see a little bit more clearly.

[Siggi]

Guys sorry I did not know that one could be in the UK for 10 years on a student visa and still be eligible for ILR.

So I guess the op is a professional Student!???? Does it pay well? I bet the HO are thinking that!

[ukstay]

paulp, there was no gap and all visas were extended in country ( either at home office or at the borders ) and alway a month before the previous expired.

Wanderer, I had a very strong letter from the Royal Academy of Music supported my application explaining the nature of my trips. One cannot hope to have a good performing career without performing experience in live performances. Exams at school are not exactly " performing practice " , not to mention we have to take part in competitions, rehearsing with other fellow musicians, research trips, travel for recording abroad or interviews with radio/television to establish ourself. The paradox is that the better one is as a performing musician, one will have to travel more. I doubt that UK would want a musician who did nothing to establish their career or to better his skills. What good can he offer or contribute as a musician if all he could do is to stay put in the UK for the sake of not breaking the rules ? Catch 22 heh ?

[ukstay]

Siggi, please be open minded and not rush into any conclusions before you know what you are talking about.

[Siggi]

Ukstay, don't take offence to my comments I'm only staying how I beleive the HO will see your application.

[ukstay]

paulp, the case worker stated that I had " attended " concerts and had holidays over 4 trips where in my application it clearly stated that I " performed ". It is very far from the truth where the amount of works and time involved for a performance, especially when it comes to rehearse with orchestra, is considerable. Evidence of these concerts had been submitted. Also, all the dates I spent looking after my father when he had been gravely ill and time spent with my mother after the funeral ( and I wish I did not have to present these facts as evidence, but again they are true facts ) were not taken into account. However, my MP did realise the situation and I hope that is why I have a review. The only fact troubles me is that should the worst possibility come out from the review, I would be left in the situation that is not fair where I could not even apply for any extension due to the slow speed of the Home Office ( the review got accepted over two months now and still no news ) .

[ukstay]

Siggi, thanks, point accepted.

[jes2jes]

Guys sorry I did not know that one could be in the UK for 10 years on a student visa and still be eligible for ILR.

So I guess the op is a professional Student!???? Does it pay well? I bet the HO are thinking that!

Studying for 10 years is not 'abnormal' in this country.
People are brought over here from a tender age (2-15 years old etc), depending on how 'rich' their parents are to study to the highest level.

In such a situation, a person can be a pupil/Student/Post Grad/Research for more than 10 years in the UK.

And to add to that, 10 years continuous legal stay in any category of leave to remain qualifies for ILR under the Long Residency Criteria in the UK.

I guess it makes sense for the BIA to award ILR to people who have lived here legally for 10 years since they would have formed a strong bond to the UK (if not lost touch with their home countries already) and would have strong ties over here. It makes perfect sense to reward such people for the investment of time (years) and money (tuition, food, clothing etc).

Hope you understand.

[iceman010899]

siggi

wots your problem ? u got some serious issues. you could come here on a student visa for A-levels and then done degree, masters, PHd, for 10 years.

put yourself in others shoes bruv.

[olisun]

siggi

wots your problem ? u got some serious issues. you could come here on a student visa for A-levels and then done degree, masters, PHd, for 10 years.

put yourself in others shoes bruv.

Maybe you should take time reading Siggi's last comments before jumping to conclusions

[flanker]

the case worker stated that I had " attended " concerts and had holidays over 4 trips where....

I do not think having more than 4 holiday trips is a valid reason for refusal.

I am guessing yout total absence is greater than 18 months? Or that you had an individual absence of more than 6 months?

[ukstay]

Do you think the MP can ask the Home Office to speed up their decision, or it is not of normal practice ? I myself don't believe it is possible, just ask if you know of any case ? Thanks.

[ukstay]

flanker, of course the dates spent outside UK over 18 months that caused the problem. These dates are backed up with very strong reason and evidence, prompted me to feel that my case is unjustified. Am not a holiday person ( my field is way too competitive to afford long holiday trips ) and never been out of the UK more than 3 months in one go. I think the case worker misunderstood totally the nature of what I do ( hard works that only the result of the performance can show ).

Question to paulp, if the review is negative and I do not have any existing leave, how can I put in a fresh application ? This is quite a daunting process of time and money wasting just because my case worker was not "in the mood " on the day, so to speak. I am aware that there are worse situation than mine.

Thanks

[paulp]

ukstay, please watch your visa expiry date and do not become an overstayer while waiting for the outcome of the review.

How long has it been since the HO started the review and how long do you have on your current visa?

I would advise if you are running out of time to get professional advice.