Thanks for this.
But I just wanted more detailed answer as a way forward in an Immigration Tribunal.
Ok you are saying compelling situation. Is there any Human Right law that could help in this case?
I understand. I have already got a solicitor but I am trying to get more opinions on the case.
As mentioned in my question, I think these caps have been put into place to avoid students reaching the 10 years and apply for ILR under the long term residency scheme.
Do you think UKBA would be more willing towards accepting my visa request so that I finish my current course of study, if I was to give them guarantee that I will not apply under this scheme and if I do they can note this down on their systems to refuse it instantly? Do you think this is something that could help or would it simply not make a difference to them?
Are you suggesting that I could be applying for the discretionary long term residency ILR while this appeal is in process?
What could be the basis under Human Right?
Yes so long as you appeal within the time limits and so your existing visa continues. As you still have extant leave (continuous leave under s3c of the 1971 Immigration Act) until a decision is received your 10 years should become complete by then - also the 10 year guidance allows you to submit an application 28 days before the 10 year period is due to complete so it would be worth doing that to ensure the application is submitted while you have extant leave.
If you are successful on compassionate grounds with your current appeal, then the chances of the 10 year ILR are increased in any event.
I hope that helps.
Do you think I would be submitting an application to UKBA 28 days before my 10 years comes to end or, would I apply to court for the variation of leave?
Should we win on the compassionate ground, would they not issue me with a discretionary leave to remain that wouldn't count towards the 10 years?
I'm thinking if it's worth having our focus more on getting the ILR than winning this court?
I would suggest making a fresh application so that the two can be decided separately - as ideally you would want a successful decision on the compelling circumstances to then argue the 10 year rule in case there are problems with it. It would be better to discuss this in detail with your lawyer who will know the merits of your case having looked at the documents and facts.
The discretionary leave visa if successful would count towards the 10 years by law (but remember this is dependant on putting together a good appeal and case. It will also depend on whether you get a 'good' or sympathetic Judge on the day of the hearing).
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