First I would like to say that the forum is very helpful and I ensure you that I read nearly all topics under ILR. However, I would have couple of questions as our case is a bit complicated and unique.
My wife came to UK in June 2013 under Tier 2 to work for a Global Company. I share her immigration history. I am her dependent (and working at same company since 2015)
Tier 2 – Granted 7/6/2013 Enter UK 11/06/2013 Extended in June 2016 until 21/06/2019
Unfortunately she had lots of absence during 2014. Mainly the reason is she had agreement with business to work from home (domicile country) but her payroll was in UK and she worked purely for this UK company. Business has consent to give the respective absence letter needed for ILR that her absence fit under business agreements. During this period she entered to UK 4 times.
Absences are as below.
06 September 2013 16 September 2013 Personal 9
28 September 2013 29 September 2013 Personal 0
21 December 2013 01 January 2014 Personal 10
18 January 2014 19 January 2014 Personal 0
31 January 2014 02 February 2014 Personal 1
08 February 2014 13 February 2014 Personal 4
01 March 2014 25 April 2014 Business 54
29 April 2014 11 May 2014 Personal 11
21 May 2014 28 September 2014 Business 129
08 October 2014 21 January 2015 Business 104
26 January 2015 18 February 2015 Personal 22
17 July 2015 02 August 2015 Personal 15
12 February 2016 21 February 2016 Personal 8
19 March 2016 30 March 2016 Personal 10
24 July 2016 04 August 2016 Personal 10
15 September 2016 18 September 2016 Personal 2
18 January 2017 19 January 2017 Personal 0
28 March 2017 10 April 2017 Personal 12
24 July 2017 06 August 2017 Personal 12
She was fitting in 180 limit in case she applies on 20/08/2018 based on old rules. However, new rules launched on 11/01/2018 demolished this strategy and she is not longer eligible. She will not be eligible until end of her visa and has no right to extend Tier due to 6 year cap.
Only hope is that probably they added an exceptional case in law as below which looks like aiming our situation.
You may also consider granting outside the rules if an applicant provides a letter setting out reasons why they believe changes to how the 180 days are counted will cause them exceptionally harsh consequences. From 11 January 2018, the rules refer to absences in any 12-month period, whereas previously they referred to absences in separate consecutive 12 month periods. Decisions will vary depending on individual circumstances, but relevant factors may include:
• when the periods of leave making up the continuous period were granted in relation to the rules change of 11 January 2018
• the level and pattern of the applicant’s absences from the UK during each of those periods of leave
• whether the consequences of a refusal would be exceptionally harsh, for example whether it would not be possible for them to qualify for settlement at a later date because they would be unable to apply for further extensions
You can only apply discretion when it has been authorised at senior executive officer level.
I am not an optimistic person but it looks like we cover 3 conditions and may have a strong case. We work with a law firm and they told there was one sample who granted ILR with this exceptional case but there is no sufficient data to confirm if this was CW`s flexibility of HO`s common sense.
I also argue with the firm that we can apply anytime (up to 28 days) before 20/08/2018 based on below rule.
Applicants can submit a settlement application up to 28 days before they would reach the end of the specified period. You must calculate the relevant qualifying period by counting backward from whichever of the following is most beneficial to the applicant:
• the date of application
• the date of decision
• any date up to 28 days after the date of application
However, the firm says that better we go on exact date to go straightforward.
My questions are as below. We are clear that there is no chance of having confirmation until we see decision of Caseworker but would be helpful if anyone can share their comments based on their experience.
- Is there any sample you heard that they are keen to be flexible if the applicant was eligible before 11/01/2018 rules but not after?
- Does it matter to be exactly in limit of 180 (under old rules) as long as we have letter from business? Or this can trigger a red flag?
- Can I apply 28 days before 20/08/2018 (please consider that there is no date before and after that she can be eligible)
- If I do so (apply 28 days before), should I highlight that they should check residency considering 20/08/2018?
- We will go with Premium. If the application requires senior approval and discretion, is there any sample that they give a decision that day (unless further check is needed) or this will automatically turn to postal-application process?
- Company will pay the costs but I stress the value of applying together. (2 sons as one of them was born 2 months ago in UK) Would this make the application stronger (referring that we built a life in UK) or would make no sense and better to go with main applicant to check if they will apply discretion?
- Is there any other route you would suggest to get over this 6 year cap as we will be only short for 2 month (she will be eligible by August 2019 from absence perspective)
It is not finished yet
We are Turkish Citizen who has a right to apply to work if we have an on-going job in UK for over 1 year which opens 10 –year route. (However, this visa type has a slim risk to be changed due to Brexit after 2020)
- Would this be an issue that they will not consider our case as harsh consequence? I believe that we should be checked under immigration route we belong to, not other visa possibilities. Same question is applicable to changing sponsorship to me as well.
- Is it legally possible to have Tier 2 and Turkish worker visa (ECAA1) at the same time? This can give us flexibility to apply by post next June 2019 and hoping that they will not give a decision before Sep 2019 (when she will have no absence issue with new rules) OR, this will give us flexibility to wish they do positive changes until our Tier 2 expires (for 6 year cap)
- Is 3c applied to Tier 2 holders if they become eligible after their 6 year period end to grant ILR?
If all fail, probably we will go with to switch to ECAA1 around new year as I will delay to expect positive changes for 6 year cap (Like they did for 60 days employment gap this year)
If you have read so far, thanks for your patience and your possible contributions.
