Tier 2 - Am I eligible to apply for ILR?

[the_eclectic]

Hello,

I've just signed up here because in a couple of weeks it will be 5 years since I arrived in London for my job. I hadn't really looked into the ILR details until now (and I realize I should have done so earlier!), but better late than never I guess.

I have a Tier 2 - General visa sponsored by my employer. I entered the country on 15th Sep 2010 on a 3-year visa. Then in 2013, I had my employer get a new one(extension?) and now it expires in October of 2016.

My main question is if I am eligible to apply for ILR status when I've been out of the country for more than 180 days the past 12 months. As an example, I was outside of the country for almost 6 months during the first half of this year mostly due to work. About 5.5 weeks of the total 22-week or so stay I'd say was due to personal reasons (vacation, flying out early to be with family for Christmas). The rest of the days were for work and I'm sure my employer would have no problem proving this. HOWEVER, I'm getting mixed messages from people/the Internet. On a XXX website where it was explaining why some people might want to go with an extension rather than applying for an ILR status, the first reason was because you spent more than 180 days outside of the country (even if it was for work). Some people here I have noticed confirmed they got their ILR status despite being outside of the country for more than 180 days.

Does anyone know what the actual rule is? I'm going to go through my passport, work emails, etc. to get an accurate figure, but just from mid-December of last year till now, I can confirm I was out for about 190 days already (and I have another business trip planned in a couple of weeks).

I'm hitting myself over the head for willing to stay out of the country for so long now! Foolish me! I was there working for most of the period, but I see now that in terms of applying for ILR status, I might as well have been on holiday!

Thank you for your time.

[CR001]

The rules state that it should not be more than 180 days absence per 12 month cycle, it is not calendar yesr, but dependent on when you apply, i.e. Sept to Aug.

So you are allowed 5 x 180 days.

[geriatrix]

i believe WP ceased to exit in 2008!

Reading FAQs for ILR - Tier 1G/Tier 2/WP/HSMP - Read before posting will be useful.

[the_eclectic]

Hello,

Thank you for the replies and sorry about catching up so late.

Yes, I'm aware it's the past 12 months and not a calendar year.

I'm just confused because some people are saying as long as I can prove that I was out of the country for more than 180 days DUE TO WORK. In other areas I'm finding info telling me that it doesn't matter even if it's work.

Does anyone else know?

If I'm still eligible (i.e. fine if my employer proves it was for work), then I'd like to apply ASAP because the IELTS test I took to get my visa for first coming to London expires in 2 years and also will be eligible to use only till early November. Or if the expiration is 2 years (and I took the test back in 2010), then I might as well just forget about applying now and wait till a few months (when hopefully I'll be under 180 days) and have taken the test again.

[CR001]

The 180 days absence allowance limit per 12 month cycle includes ALL absences.

[the_eclectic]

Hello,

Thank you for the reply.

Okay, maybe I didn't make myself clear and I apologize if I didn't.

Basically, by the time I actually take the Life in the UK Test, get all documents sorted, etc. and then apply, I think my days out of the country will exceed 180 days (mostly due to work).

Will I still be eligible as long as the company proves it was for work? Or is it the case that once it goes over 180 days then I need to wait a few more weeks/months till I'm back within the 180-day range (in which case I'll just be more patient with this and plan to apply a few months down the line).

Thank you again.

[CR001]

The 180 days absence allowance limit per 12 month cycle includes ALL absences.

I feel my post has been very clear. There have been maybe 2 members on the forum that have been successful with slightly more absences, but most don't even take the chance as a refusal means loss of fee paid to.

If you have the capacity to wait till you are within the limits, that is what I would suggest you do. Obviously the split of absences across the different 12 month cycles also depends on the date you actually apply.

[the_eclectic]

Hello,

I'm writing (like many others here) to see if I can get advice on my (potential) ILR status application. Mid-September of this year marked 5 years in the UK (I'm here on a Tier 2 - General visa sponsored by my company). I've been travelling extensively (especially during the last year or so) due to work, but based on my communication with Company Name Removed by Mod (which my employer is a client of), I'm not eligible until 2020 (due to the days I've been outside the UK). I had a bad experience with them as they initially gave me incorrect information (saying I was eligible February of 2016) and I had to go back and forth asking about different pieces of data, the reasoning behind it, etc, etc. After lots of emails, I'm not told that I need to wait another 5 years. I'm very much upset and trying to see if there is no other way.

Mid-Sep 2010 - Entered UK to start new job with employer (with a 3-year visa)
August/September 2013 - Visa extended (to same type)
October 2016 - Visa expires

Below is a breakdown of all my travels (both personal and business) using a spreadsheet I was provided by Company name removed by mod. Last number is the actual number of days 'outside of the UK' for the specific trip.

1 27 October 2010 - 31 October 2010 / Personal (3)
2 16 November 2010 - 28 November 2010 / Business (11)
3 29 December 2010 - 02 January 2011 / Personal (3)
4 19 January 2011 - 22 January 2011 / Personal (2)
5 20 April 2011 - 03 May 2011 / Personal (12)
6 25 August 2011 - 06 September 2011 / Business (11)
7 29 September 2011 - 01 October 2011 / Personal (1)
8 21 November 2011 - 05 December 2011 / Business (13)
9 21 December 2011 - 30 December 2011 / Personal (8)
10 19 March 2012 - 25 March 2012 / Personal (5)
11 25 May 2012 - 05 June 2012 / Business (10)
12 18 August 2012 - 21 August 2012 / Personal (2)
13 28 September 2012 - 16 October 2012 / Personal (17)
14 09 November 2012 - 30 November 2012 / Business (20)
15 23 December 2012 - 30 December 2012 / Personal (6)
16 14 March 2013 - 20 March 2013 / Personal (5)
17 13 June 2013 - 26 June 2013 / Business (12)
18 04 August 2013 - 14 August 2013 / Business (9)
19 12 December 2013 - 04 February 2014 / Business/Personal (53)
20 09 March 2014 - 20 April 2014 / Business (41)
21 12 June 2014 - 14 June 2014 / Personal (1)
22 17 June 2014 - 07 August 2014 / Business (50)
23 23 August 2014 - 22 September 2014 / Business (29)
24 05 October 2014 - 01 December 2014 / Business (56)
25 09 December 2014 - 11 December 2014 / Personal (1)
26 16 December 2014 - 05 June 2015/ Business/Personal (170)
27 22 June 2015 - 27 June 2015 / Business (4)
28 10 July 2015 - 15 July 2015 / Personal (4)
29 03 August 2015 - 17 August 2015 / Business (13)
30 12 September 2015 - 29 September 2015 / Business (16)
31 12 November 2015 - 17 November 2015 / Personal (4)
32 29 November 2015 - 02 December 2015 / Personal (2)

Company name removed by mod is saying that because there are 12-month periods I've been outside of the UK for more than 180 days (even if it's for work), my first 12-month Travel Year that will count toward the time in the UK is not 2010.

I've spoken to the director of my company who spoke to HR about this and he told me that it seems this is the new policy put in place, thus there's nothing I can do about it and that if I wish to seek secondary advice I could do that privately.

If I have to wait another 5 years, honestly I'm not sure if I will stay in this country any longer. I cannot even get a mortgage now because that requires 1) ILR status OR 2) minimum 18 months on my visa.

Is there really no way around this? I don't mean breaking the law obviously, but is it true there are no exceptions even if most of days outside of the UK was for work? If so, I feel like a big fool as I wouldn't have gone on these business trips had I known.

Thank you very much for your time. ANY advice would be appreciated.

Jean

[CR001]

At a glance, it doesn't seem like you are over the limit, except for "26 16 December 2014 - 05 June 2015/ Business/Personal (170)"

It might be easier if you calculated or listed it slightly differently, listing as Year 1 total absence, Year 2 total absence etc base on a date you wish to apply. Doing this will then allow you to work out how you can split any absence that is over the limit into two separate 12 month period.

You are allowed absence of no more than 180 days 12 month cycle. When the cycle starts and ends depends on what date you are applying and then counting backwards, so it could be May to June or Jan to Dec

Edit : and no, possible that you do not have to wait another 5 years, they are talking nonsense.

[jhm3]

Agreed; it's nonsense that you would have to wait another five years. The five one-year periods during which you must not have been outside the UK for more than 180 are counted backwards from the date of your application, so it looks, at a glance, like you would be ok from sometime around February 2016 (as you were originally advised).

This is all laid out in the UKVI staff guidance on this point:

https://www.gov.uk/government/uploads/s ... .0_EXT.pdf

... It's often better to dig up and read carefully the official documents than to rely on "professionals" who sometimes turn out not to know what they are talking about!

[CR001]

Also remember, that your employer will be aware that once you are granted ILR that you can resign.

Also be aware that you will require a letter from your employer confirming that you are still required in your job for the foreseeable future and that they effectively 'support' your ILR application.

[the_eclectic]

Hello again,

I think the reason reference to company name removed by mod are saying I need to wait another 5 years is because they tried to spread my days (mostly because of the 170 days during the first half of this year) and found that the first 'travel year' where I have 180 days or under is 2015. This is what I was trying to say in my original post.

I understand that I can split up the years (which would ultimately mean my eligibility gets pushed back from Sep 2015), but I think the problem is I have no leeway because I was also out of the country quite a bit the 2nd half of last year.

I was fine for the first few years (as the days are quite low), but it's from the 2nd half of last year till middle of this year pretty much that is impacting me significantly.

Lastly, yes, I'm aware that I require my employer to confirm that I'm needed for 6 months or more (due to the reason you stated).

Cheers,
Jean

[CR001]

Please refrain from referring to the company by name and rather refer to them as 'the solicitor'. Thanks

[CR001]

There is no time limit that your employer has to state you are still required, it can be open ended.

Choose a date in Jan or Feb next year (as suggested by the other member) and calculate your absence backwards per 12 month period. It will be easier to see the overall rather than the long list of dates/days absence you have posted. Absence makes no difference whether personal or business.

[the_eclectic]

Hello again,

Thank you for the reply. Yes, I just noticed the removal of the company name and will be mindful of it in the future.

I will choose a couple of dates (i.e. one in Feb and one a few months down to line) to get a better idea and post again.

Jean

[CR001]

Hello again,

Thank you for the reply. Yes, I just noticed the removal of the company name and will be mindful of it in the future.

I will choose a couple of dates (i.e. one in Feb and one a few months down to line) to get a better idea and post again.

Jean

Great, then post here and we can see if we can help/advise to get you sorted and ready for ILR.

[the_eclectic]

Thank you. I will (and am looking at it now).

But, I think it's difficult because basically from (for example) 12 December 2013 - 02 December 2015 I have been out of the country is 444 days. So that's 444 days during TWO 12-month periods (I'm aware it doesn't need to be 12 months from Jan-Dec). So it seems there is no way for me to spread out my days/travel years so that I can 180 or under in any 12-month period. Is this correct?

[CR001]

And are you only counting whole days out of the UK (disregard day of departure and day of arrival)?

[geriatrix]

The OP is not a WP holder! Title amended (again)!

[geriatrix]

from (for example) 12 December 2013 - 02 December 2015 I have been out of the country is 444 days.

So, taking that example, wait for about another 5 years!

[jhm3]

I see; I had missed the fact that you were out of the UK quite so much during 2014, in addition to the 170-day absence during the first half of this year. Yes, unfortunately, it looks like you will need to wait almost another 5 years before you have five consecutive 12-months periods with not more than 180 days of absence. As has been discussed, it makes no difference that many of your absences were for business purposes (discretion to allow such absences was removed a couple of years ago). According to page 30 of the staff guidance on continuous residence (which you are looking at), the only situation in which absences of more than 180 days in a 12-month period might be allowed would be in the case of "serious or compelling reasons"; these aren't defined, but it says that travel for employment or economic activity or absences connected with pregnancy and parental leave would not qualify, so presumably they're talking about medical emergencies. It doesn't sound like this applies to your situation, I'm afraid.

[the_eclectic]

And are you only counting whole days out of the UK (disregard day of departure and day of arrival)?

Yes, I'm using a spreadsheet that ignores the departure/arrival dates.

[the_eclectic]

The OP is not a WP holder! Title amended (again)!

What do you mean? Are you saying I'm not a work permit holder? I am. I'm on a Tier 2 General Visa which I believe is a work permit, is it not?

[the_eclectic]

I see; I had missed the fact that you were out of the UK quite so much during 2014, in addition to the 170-day absence during the first half of this year. Yes, unfortunately, it looks like you will need to wait almost another 5 years before you have five consecutive 12-months periods with not more than 180 days of absence. As has been discussed, it makes no difference that many of your absences were for business purposes (discretion to allow such absences was removed a couple of years ago). According to page 30 of the staff guidance on continuous residence (which you are looking at), the only situation in which absences of more than 180 days in a 12-month period might be allowed would be in the case of "serious or compelling reasons"; these aren't defined, but it says that travel for employment or economic activity or absences connected with pregnancy and parental leave would not qualify, so presumably they're talking about medical emergencies. It doesn't sound like this applies to your situation, I'm afraid.

Thank you for looking into this. Yes, I was planning on going through the dates again to see how I could spread them out, but I feared this would be the case. (Still wanted to get second opinion from others as obviously it is a very important issue for me that impacts my career/course of life). I guess I have no one else to blame than myself for not being mindful of this before agreeing to go out on these trips. It has impacted me significantly as I cannot even get a mortgage (as they say I need to have ILR status or have at least 18 months on my visa). Very distressing.
Thank you again.

[O_Relly]

Sorry about this mate, I realise it can be frustrating, not being aware of the qualifying period limitation in prior. Below are some reference threads, which may be useful.

See below case where applicant split 320 days of absence over 2 years and was successful,
http://www.immigrationboards.com/indefi ... l#p1052224

Below is a case where applicant was successful on compassionate grounds,
http://www.immigrationboards.com/indefi ... l#p1109888

Below is a friend of mine, who was not eligible and eventually waited additional time to complete his qualifying period:
http://www.immigrationboards.com/indefi ... ml#p942517

Good luck.