Tier 2 Gen to ILR - Breach 180 Days Rule (Work absence)

[RosT]

Hello,

I'm currently on a Tier 2 General visa which expires in August 2018. I first entered the UK in 2005 under a Tier 4 Student visa and was on this visa until I graduated in 2010. Since then, I have been on a PSW visa (2010 - 2012) and Tier 2 General visa (2012 - 2018).

Throughout my employment with the company (from Sept 2010 - to date), I was put on work assignments abroad and have been absent from the UK for more than 540 days in total over a 10 year period, which makes me ineligible for a 10 year ILR.

During my time on the Tier 2 visa, the UK company posted me to work abroad from Aug 2013 - July 2014 (for an entity partially owned by the UK company - 51% share, but this is now wholly owned by the UK business) and I was absent for about 300 days over that period, which thus makes me ineligible for my ILR via the 5 year route as well. During this time, I continued to be employed by the UK company, however, I paid tax abroad and was filed as a non-UK Tax resident by the business. The initial agreement was for me to remain paid by the UK company payroll and taxed in the UK, however, in Nov 2013, the company changed the terms without consulting me and stopped paying me in UK. They then told me to sign a contract with the the local business stating however that I remained on secondment and would return to UK as per my initial secondment posting. The UK company also then filed my non-UK tax resident status through an accounting firm and all the tax returns were credited to the company.

Speaking to an immigration advisor, I was advised to submit an ILR application by post (via the 5 years route) in August 2018 just before my current visa expires. In my application, I was advised to submit letters supporting my application (E.g. from MPs/employer), provide character references (from friends), demonstrate that I earn a decent salary and make a decent tax contribution working as a mechanical engineer at a biofuels plant. Please see ILR continuous leave calculation table below:

ILR Years Start End Days In UK Days OUT of UK
Year 1 07/06/2013 08/06/2014 65 300
Year 2 07/06/2014 08/06/2015 312 53
Year 3 07/06/2015 08/06/2016 334 31
Year 4 07/06/2016 08/06/2017 326 39
Year 5 07/06/2017 08/06/2018 332 33

I should also push forward the point that if I was refused the ILR, I would have to leave the UK and the life I have built over the last 13 years since I first arrived to pursue my degree at a UK University. This would be in breach of human rights and we should argue it using "Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society"."

I would like to ask if anyone has been in a similar position as I have several concerns about this idea:
1. Is this suggestion valid / worth the risk?
2. If we were to appeal the initial decision by UKBA, what are the chances of a successful appeal? And how long would the appeal take?
3. From my understanding, so long as I do not overstay my existing visa and apply for my ILR before the expiry date on my current visa, does my current working status remain?
4. During the appeals stage, am I allowed to stay employed with my current company in my existing role until a decision is made?
5. How long can the UKBA hold my passport / documents during the appeal stage?

Thank you all very much, I really appreciate the time taken to read my post and provide some insight on the matter.

Best Regards,
RT

[CR001]

There is no appeal for PBS route ILR. You will only have the option of Administrative Review, which is for if you believe HO have made an error in their decision.

[RosT]

There is no appeal for PBS route ILR. You will only have the option of Administrative Review, which is for if you believe HO have made an error in their decision.

Thank you for your reply - please can you advise what qualifies someone to take up an Administrative Review? In my case, seeing as I was in breach of the 180 days rule, please can you advise if this is not an option for me, thanks.

[CR001]

If ILR is refused, as it likely will be, due to your having more than 180 days absence in ANY 12 month rolling period, then the refusal will be correct and HO will not have made and error, so AR will also fail.

The simplest thing, back then, would have been to let your sponsor notify HO that you have left the UK, do your contract abroad and then reapply for a Tier 2 General 12 months after leaving the UK, as this would have given you a new 6 years on Tier 2.

[cracker1234]

As per my understanding your Tier 2 was started on Aug, 2013 so literally you can stay till 2019 Aug to complete your 6 years on T2G.

In this case you can skip the first year of T2G (2013 to 2014) that has more than 180 leaves and show the 5 years from 2014 to 2019 when applying for ILR. I presume that's possible, but would wait for experts to comments on this.

[RosT]

As per my understanding your Tier 2 was started on Aug, 2013 so literally you can stay till 2019 Aug to complete your 6 years on T2G.

In this case you can skip the first year of T2G (2013 to 2014) that has more than 180 leaves and show the 5 years from 2014 to 2019 when applying for ILR. I presume that's possible, but would wait for experts to comments on this.

Hello,

Thank you for your reply.

Unfortunately, my Tier 2 visa started in 2012 and expires in 2018, which means I will miss out on my ILR as I was away in 2013/2014.

[zcy9079]

Hello

Please could you kindly share any updates on your ilr as i am in the same situation as you and really worries :（

Many thanks