Tier 2 continuous period break by unpaid absence from UK

[tristanintheuk]

Dear all,

I have a few questions related to absence from UK using unpaid leaves during my tier 2.

1. Does absent from UK using unpaid leaves break my 5 year continuous period?
2. In the letter of absence from my employer, should unpaid leaves being included? Or should I have own letter to list unpaid leaves?
3. If 1 doesn't break continuous period, how many days of unpaid absence is allowed?

I've read through this home office document https://www.gov.uk/government/publicati ... riod-in-uk, but haven't found anything useful.

Could anyone help please?

Thank you all.

[tristanintheuk]

anyone help?

[zimba]

What was the reason for your absence from the UK while on Tier 2 visa ?
You are allowed max of 180 days from the UK in each year.
However under Tier 2, absences must be consistent with or connected to your permitted employment or business activity being carried out in the UK, for example, business trips for work or short secondments as well as paid annual holidays.
Time spent away from the UK for extended periods without a very good compelling reason is pretty much unacceptable.

[tristanintheuk]

What was the reason for your absence from the UK while on Tier 2 visa ?
You are allowed max of 180 days from the UK in each year.
However under Tier 2, absences must be consistent with or connected to your permitted employment or business activity being carried out in the UK, for example, business trips for work or short secondments as well as paid annual holidays.
Time spent away from the UK for extended periods without a very good compelling reason is pretty much unacceptable.

Thanks for your help.

The reason of my unpaid absence from the UK is visiting families. I only have one day of unpaid absence.

absences must be consistent with or connected to your permitted employment or business activity being carried out in the UK, for example, business trips for work or short secondments as well as paid annual holidays.

This is what confuses me. It says business trips, short secondments and paid annual holidays are fine. But what about unpaid leaves with the reason of visiting families? Does unpaid leaves for visiting families consistent with or connected to my permitted employment or business activity carried out in the UK?

Time spent away from the UK for extended periods without a very good compelling reason is pretty much unacceptable.

What are the extended periods? Does that mean overstay beyond my leave?

Thank you in advance for your time and help!

[zimba]

as long as your employer is fine with you being absent (and gives the letter) a single day of leave should not make any difference.

[tristanintheuk]

as long as your employer is fine with you being absent (and gives the letter) a single day of leave should not make any difference.

Thank you

[tristanintheuk]

Does anyone has experience the similar situation and successfully obtained ILR?

[tristanintheuk]

I found this: https://www.whatdotheyknow.com/request/ ... _ilr_rules

Anyone has any comments? It clearly says unpaid will break the continuity. Should I trust this?

[vinny]

( c ) Except for periods where the applicant had leave as a Tier 1(Investor) Migrant, a Tier 1(Entrepreneur) Migrant, a Tier 1(Exceptional Talent) Migrant or a highly skilled migrant, any absences from the UK during the five years must have been for a purpose that is consistent with the applicant’s basis of stay here, including paid annual leave, or for serious or compelling reasons.

The word "including" implies that what follows is a non-exhaustive list. Moreover, there doesn't appear to be anything in the rules nor guidance that excludes unpaid leave, as long as it was for a purpose that is consistent with the applicant’s basis of stay here.

See also related cases.

[tristanintheuk]

( c ) Except for periods where the applicant had leave as a Tier 1(Investor) Migrant, a Tier 1(Entrepreneur) Migrant, a Tier 1(Exceptional Talent) Migrant or a highly skilled migrant, any absences from the UK during the five years must have been for a purpose that is consistent with the applicant’s basis of stay here, including paid annual leave, or for serious or compelling reasons.

The word "including" implies that what follows is a non-exhaustive list. Moreover, there doesn't appear to be anything in the rules nor guidance that excludes unpaid leave, as long as it was for a purpose that is consistent with the applicant’s basis of stay here.

See also related cases.

Thank you very much for your help vinny . I've read through both rules and guidance several times and tend to have the similar opinion with you. But it's also really difficult to fully convince myself that unpaid absence is fine, because as you said it is not clearly stated in the rules and guidance.

For the related cases you shared, I don't really understand how should I use them. Could you please give me more help with that?

And do you have any opinion for this Freedom of Information request https://www.whatdotheyknow.com/request/ ... _ilr_rules? It looks like people from UKBA regard unpaid absence as a break of continuity.

[tristanintheuk]

Anyone successfully obtained ILR with unpaid absences from the UK?

[vinny]

If the absence wasn't for serious nor compelling reasons, then was the absence for a purpose that is consistent with the applicant’s basis of stay here?

Paid annual leave is an example of a purpose that is consistent with the applicant’s basis of stay here.

If the employer approves an unpaid leave of absence, then this is lawful and within the employer's authority to approve. If the employer didn't approve of an unpaid leave of absence, then I think the purpose of the absence may be inconsistent with the applicant’s basis of stay here.

Does the employer's approval make the purpose of the absence consistent with the applicant’s basis of stay here, or not?

How is "consistent with the applicant’s basis of stay here" defined?

[tristanintheuk]

If the absence wasn't for serious nor compelling reasons, then was the absence for a purpose that is consistent with the applicant’s basis of stay here?

Paid annual leave is an example of a purpose that is consistent with the applicant’s basis of stay here.

If the employer approves an unpaid leave of absence, then this is lawful and within the employer's authority to approve. If the employer didn't approve of an unpaid leave of absence, then I think the purpose of the absence may be inconsistent with the applicant’s basis of stay here.

Does the employer's approval make the purpose of the absence consistent with the applicant’s basis of stay here, or not?

How is "consistent with the applicant’s basis of stay here" defined?

Hi vinny, thanks again for your reply. In my case, my unpaid leave was approved by my employer. Hopefully UKBI regards this as a consistency with my basis of stay.

Since the immigration rules do not include detailed explanations about what is consistent with the employment, it's really difficult to readers to tell whether unpaid absence are okay or not. Some real life ILR outcomes with unpaid absences would be extremely helpful. I saw a few threads in here discussed similar situations but none of them update their ILR outcome.

[tristanintheuk]

It has been a few days and no one has shard anything new.

Before this thread become totally inactive, may I ask does anyone had experienced the similar situation and successfully obtained ILR?

[sandy1985]

Hi Tristan,

Hope you had successfully complete your ILR visa processing. I'm in the same situation of yours, does the letter from employer regarding the unpaid absence from UK was any help?

[tristanintheuk]

Hi Tristan,

Hope you had successfully complete your ILR visa processing. I'm in the same situation of yours, does the letter from employer regarding the unpaid absence from UK was any help?

Hi Sandy,

I haven't applied my ILR yet. When will you apply for your ILR?

[prince99]

found this on google.
https://www.whatdotheyknow.com/request/ ... y_calculat

[kk1612]

Hi ,
I found this on Gov websitehttps://www.gov.uk/guidance/immigration ... or-refusal

323AA Prohibited changes to employment for Tier 2 Migrants and Tier 5 Migrants
The following are prohibited changes, unless a further application for leave to remain is granted which expressly permits the changes:
(a) The migrant is absent from work without pay for four weeks or more in total, according to his/her normal working pattern (whether over a single period or more than one period), during any calendar year (1 January to 31 December), unless the absence from work is due solely to:
(i) maternity leave,
(ii) paternity leave,
(iii) shared parental leave;
(iv) adoption leave, or
(v) long term sick leave of one calendar month or more during any one period.


I am a bit worried I might affect by this. Here is my situation and please can anyone help me.
First Tier 2 visa stamped on - 15-March-2013
Employment start date according to COS - 01-April-2013 and this also same with Home office SMS system.
But employer started my payroll from 01-May-2013 and he didn't pay any tax or salary for April 2013 and my HMRC employment history shows employment start date as 01-May-2013. But, I am in the UK that time.
I am not sure yet how my employer will justify that April 2013 month. Maybe unpaid leave or something else.

Based my Payroll start date '01-May-2013' I will complete my 5 years on 01-May-2018. And I am planning to apply to apply ILR on 02-April-2018 which is 28 days before 5 years.
Does the unpaid period of 01-April-2013 affect my application? What are my options?
Can someone suggest me.