Regular readers know The Mobility Brief reports outcomes whichever way they go. We covered the refusal wave when it started in ECAA Decisions Have Started: What You Need to Know, set out the playbook in ECAA Application Was Refused. Now What?, and dealt with the evidence question in Can You Submit New Evidence in an Administrative Review?
Last week, two refusals arrived on our own caseload. Today I am publishing both, deliberately. Not because of the refusals themselves, but because of what happened between the first decision and the second.
Both were ILR refusals on the ECAA Turkish Businessperson route, from the Liverpool settlement team. In both, we found caseworking errors.
We wrote to the team and asked for the decisions to be withdrawn and remade, while the administrative review window was still running. In both, the Home Office confirmed the case was under review, then remade the decision. No administrative review was decided in either case. The review happened because we put the errors in front of the ECAA team in writing.
Both remade decisions were refusals. Again.
The Home Office’s reconsiderations policy does not cover decisions that carry a right of administrative review, and ECAA settlement decisions do. On paper, the AR is the remedy and a reconsideration request should go nowhere.
In practice, we have persuaded the ECAA team five times in the past two months that the errors in a decision were so serious it had to be looked at again. That is a win in itself. Two of those files have now produced remade decisions. This post covers them.
Three earlier requests are still pending, and I will report on those when they arrive.
What the reconsiderations achieved
Case one :
The original refusal attacked the application from every direction: invoice credibility, VAT presentation, invoice numbering, ICO registration, even whether the applicant lived where he said he did. The remade decision drops every one of those grounds. Every single one. It now refuses on one ground alone: continuous residence. The business survived the reconsideration intact, and that changes everything about the administrative review and any future application.
Case two :
The original decision ignored the death of the applicant’s spouse. That is not a side point: it is an example written into the Rule itself. It barely engaged with serious medical evidence, and it relied on an absence schedule containing an impossible entry, an end date that fell before its start date. The remade decision engages with the schedule, corrects the impossible entry, and addresses the bereavement. Still a refusal. But a narrower one, and the reasoning is now fully visible and fully challengeable.
The lesson is that a written reconsideration request, sent promptly and identifying specific legal errors, can get read. Ours was sent in direct response to the invitation from the Second Permanent Secretary to provide examples of legally unsound ECAA decisions (covered in an earlier post). Both files were reviewed within 10 weeks.
A reconsideration is not an administrative review. An AR goes to a separate team, independent of the original decision maker. A reconsideration usually goes back to the same team, and often to the same caseworker. And that is one of the reasons a reconsideration like this can fail: you are asking a decision maker to withdraw their own refusal, and they seem unwilling to do it. On these two occasions the pattern was identical. The most difficult and obvious mistakes were corrected, and the refusal was maintained anyway. It is hard not to see that as face-saving. The result is a decision that is tidier, narrower, and still equally wrong.
What we are now fighting: CR 3.4(c)
Both remade refusals now rest entirely on continuous residence. The Rule is short. Under Appendix Continuous Residence, an applicant must not have been outside the UK for more than 180 days in any 12-month period (CR 3.1), subject to CR 3.4, which provides that any period spent outside the UK will not count where the absence was for, among other reasons:
(c) compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or the life-threatening illness or death of a close family member
That is the whole test. Yet the decisions we received apply requirements that appear nowhere in the Rule:
That treatment must have been unavailable or inaccessible in the UK, a kind of “NHS alternative” test
That the applicant must prove they were medically unfit to travel, or that travel was contraindicated
That the absence must have been “unavoidable or beyond your control”
That an applicant who began treatment abroad “chose” their predicament, so the documented clinical risk of transferring care mid-treatment can be disregarded
None of this is in CR 3.4(c). The Rule asks one question: were the circumstances compelling and compassionate? It does not ask whether the applicant had alternatives, and it does not import a but-for test about where treatment started.
The core error is common to both decisions:
CR 3.4 provides that a period of absence “will not count” where it was for a listed reason. That is a mandatory disregard: once the condition is met, the caseworker has no residual choice. Both decisions instead frame the exercise as a discretion (”discretion also cannot be applied”, “we do not consider this... to exercise discretion in your favour”). A caseworker cannot refuse to exercise a discretion the Rule never gave them, and writing the refusal in that language reveals that the wrong test was applied from the start.
We will be challenging both decisions by fresh administrative review, and through other avenues1.
What This Means for You
Be aware that there is no formal reconsideration route for ECAA refusals: the AR is the remedy, and the 14-day AR deadline keeps running regardless. A reconsideration request is exceptional, works only where the legal error is serious and specific, and must never be your only protection.
Prepare for continuous residence to be the main battleground on ECAA settlement. Where the business evidence is strong, absences are where refusals are now being constructed.
Expect CR 3.4(c) arguments to be met with reasoning that goes beyond the Rule. Build your evidence to meet the actual test (compelling and compassionate circumstances) and challenge anything added on top of it.
Check your eVisa after any refusal
One more practical point affecting almost everyone refused on this route. If you applied in time and your leave has since expired, section 3C of the Immigration Act 1971 continues your leave while the administrative review window runs and while any administrative review is pending. The most common error we see after a refusal is an eVisa that fails to show this: it displays expired leave or no status at all, even where the AR was lodged in time.
That is an error, and it must be corrected through the eVisa error reporting service:
➡️ Report an error with your eVisa
The Home Office aims to respond within 10 working days. Do not leave it uncorrected: right to work checks, renting, banking and travel all depend on what the eVisa shows.
Written by William O’Neill, Immigration Expert & Founder, The Mobility Brief 🔗 Read all posts | 🟢 Join our WhatsApp Channel
I will say more about in the coming weeks.