Tier 1 (General) / ILR - New Rules Query

[Kumar_Saurabh]

Hi All,

My wife is currently on Tier 1 (General Visa); she was on Tier 1 (PSW) earlier. She was awarded 3 years Tier 1 (General Visa) during initial application in 2010 and then further 2 years in 2013. Owing to pregnancy in 2013 she moved to India for 12 months, so her health could be looked after by our family. My question now is as her next extension falls in 2015 and the Tier 1 (General) extensions coming to an end in April 2015 under new rules, can we still apply for ILR citing pregnancy as the reason for absence of 12 months. Or should we get a further extension of Tier 1 (General) before April 2015 which would give us some room to breathe and would make up 7 years of residence on Tier 1 (General) including pregnancy gap of 12 months in between. Would that be an acceptable reason for the case worker while considering ILR application? If not what should our next steps be?
Regards,
Kumar

[Kumar_Saurabh]

Still waiting for a response from the experts...

[dk2011]

When is she eligible to apply for ILR from 2010 ? Maternity is a valid ground to seek exemption .
If her ILR is due after April 2015 then you should go for extension . If it is due before that then you can try ILR first .

[Kumar_Saurabh]

She is eligible to apply in June 2015, but has taken 12 months break coz of pregnancy in 2013 as mentioned earlier. While reading through absence guidance, it looks as if they take pregnancy as normal absence and might not exempt it while assessing application for ILR. I'm really confused as pregnancy was a big deal for us and there was no way we could have managed it in UK without the family being around for support.

[dk2011]

It is risky. I would go for extension and later split leave in a way that it is <=180 in each qualifying year .

[Kumar_Saurabh]

So if for example the leave started in May 2013 to April 2014 then according to our scenario the latest qualifying year i.e. June 2013 – May 2014 would have 11 months leave in it with 1 month belonging to the previous year June 2012 – May 2013 (total is roughly 10 days short of a year i.e 355 days). Furthermore if we extend Tier-1 again for 2 years in 2015 would that mean we can shift the ILR qualifying years according to our liking i.e. for example if the qualifying years from our situation are as follows June 2010 - May 2011, June 2011 - May 2012, June 2012 - May 2013, June 2013 - May 2014 and June 2014 – May 2015. In our scenario the year June 2013 - May 2014 would have 11 months leave in it, but if we go by your logic and apply at the start of November 2015 then the new qualifying years would be November 2010 - October 2011, November 2011 - October 2012, November 2012 - October 2013, November 2013 - October 2014 and November 2014 – October 2015. Therefore the 12 months (355 days) leave would be adjusted in the new cycle i.e. roughly <=180 days each in the year November 2012 - October 2013 and November 2013 – October 2014.
Would the UK Visa & Immigration accept this kind of calculated and fine tuned applications, and would the shifting of qualifying years depend on the actual date the application is posted and signed? This was the asumption of the scenario mentioned above - Which is very crucial in our case!
Furthermore would paid annual leave taken in the year November 2012 - October 2013 mess up the absence by adding days to the <=180 calculation? Because according to my understanding paid annual leave is not counted as a gap in UK residence.
Thanks for clearing my mind with your accurate answers but I would still need yours and other experts views on all of the above

[dk2011]

[quote="Kumar_Saurabh"]So if for example the leave started in May 2013 to April 2014 then according to our scenario the latest qualifying year i.e. June 2013 – May 2014 would have 11 months leave in it with 1 month belonging to the previous year June 2012 – May 2013 ([color=#FF0000]total is roughly 10 days short of a year i.e 355 days[/color]). Furthermore if we extend Tier-1 again for 2 years in 2015 would that mean we can shift the ILR qualifying years according to our liking i.e. for example if the qualifying years from our situation are as follows June 2010 - May 2011, June 2011 - May 2012, June 2012 - May 2013, June 2013 - May 2014 and June 2014 – May 2015. In our scenario the year June 2013 - May 2014 would have 11 months leave in it, but [b]if we go by your logic [/b]and apply at the start of November 2015 then the new qualifying years would be November 2010 - October 2011, November 2011 - October 2012, November 2012 - October 2013, November 2013 - October 2014 and November 2014 – October 2015. Therefore the 12 months (355 days) leave would be adjusted in the new cycle i.e. roughly <=180 days each in the year November 2012 - October 2013 and November 2013 – October 2014.
Would the UK Visa & Immigration accept this kind of calculated and fine tuned applications, and would the shifting of qualifying years depend on the actual date the application is posted and signed? This was the asumption of the scenario mentioned above - [color=#FF0000]Which is very crucial in our case![/color]
[color=#0000FF]This is fine. Lots of people have got ILR by spliting thier abscences like above.[/color]
Furthermore would paid annual leave taken in the year November 2012 - October 2013 mess up the absence by adding days to the <=180 calculation? Because according to my understanding paid annual leave is not counted as a gap in UK residence.
Thanks for clearing my mind with your accurate answers but I would still need your and other experts views on all of the above
[color=#0000FF]Leave taken while you are in UK isn't counted towards abscence. [/color]
[/quote]

[Kumar_Saurabh]

Thanks for your prompt & professional response
So effectively the qualifying year can be adjusted and depends on the date of application of ILR
But paid annual leave while abroad is counted towards absence from UK (90/180 day rule) if I'm correct

[dk2011]

Yes.

[Kumar_Saurabh]

Thanks