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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Hello, I was wondering if you could help me out in clarifying

Customer Question

Hello,

I was wondering if you could help me out in clarifying as to whether my absence should count as a compelling reason for SET (LR).

My Grand Aunt (Grandmother's Sister) has been critically ill (she couldn't feed herself). She has no children, no brothers/sisters and her husband has passed away. So it was up to me and my two aunts to take rounds in taking care of her. That meant that I had to leave the UK whenever I got the chance to help in taking care of her. She was ill for about three years and sadly she passed away. That meant that I ended up accumulating about 250 days of absences!

My question is, will this be considered a compassionate reason by UKBA provided I provide all the necessary evidence?
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Thomas replied 1 year ago.
Hi,

What visa do you hold for the UK?

Is 250 days the total days of absences throughout the whole 10 year period in which you applied?

Did you spend more than 6 months outside the UK any 12 months period?

Kind regards,

Tom
Customer: replied 1 year ago.

Hi Tom,


 


I was on a student visa for 6 years. 2 years PSW and currently on a Tier 2 general.


 


No, 250 days is in excess to the 540 days of absences allowed.


 


These absences were in 2007/2008/2009. Basically, I left whenever I had the chance to help out in caring for her.


 


I did not spend more than 6 months outside the UK in any 12 months period.


 


 

Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

The assumption will be that continuous residence has been broken because you have spent an excess of 540 days outside of the UK during the ten year period. Therefore the case worker will be bound to reject the application under the immigration rules.

The only circumstances in which they may not reject the application is if exceptional circumstances apply. However, this is very much judged on the facts of each case and it always involves getting the UKBA to exercise their discretion.

The threshold to get them to exercise their discretion is very high.

The first problem is that the level of absences above 540 days is very high. You have excess absences of almost 50% of the total absences that you are allowed. This means that threshold for “exception circumstances” is made even higher because the absences is excessive. They are much more willing to exercise discretion where the absences are around 20-50 days are the most.

The second problem is that the reason for your absences was not because of an immediate family member, such as a child or spouse. I would be a little moe confident if you were arguing your case because the absences were due to your parent being ill. Although I am certain she was very dear to you your great-aunt is not likely to be considered to be part of your immediate family. In the event that you did apply you would have to produce evidence not only of each absence but also convince the UKBA that your relationship with her was beyond that of a typical great aunt and that she was something akin to a parental figure for you.

I have to be honest and say that the two problems together make a very big hurdle for you to get over. I would discourage an application because of the problems because I would not be confident that the application would more likely than not be approved.

Instead I would probably advise getting further leave to remain under which ever category you are under or can obtain and then waiting until the ten year period has caught up sufficient to eliminate some earlier absences so that the excess is not as big OR applying for ILR once you are eligible if you are eligible for ILR under the relevant visa category that you are in.

I am sorry I could not have better news for you.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Thomas, Solicitor
Satisfied Customers: 6522
Experience: BA (Hons), PgDip, Practising Solicitor
Thomas and other UK Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Tom,


 


How to I produce evidence proving that we were close? Can you give me examples?

Expert:  Thomas replied 1 year ago.
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Customer: replied 1 year ago.

Hi Tom,


 


Just wondering, if this has been my grandmother, not my grand aunt, would things have been different?


 


 

Expert:  Thomas replied 1 year ago.
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Customer: replied 1 year ago.

Hi Tom,


 


On a different note, what about preparing and attending my brothers wedding? Is that time to be disregarded from my overall absences?


 

Expert:  Thomas replied 1 year ago.
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Customer: replied 1 year ago.

Why not? Am I expected to remain in the country while he gets married?

Expert:  Thomas replied 1 year ago.
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