Tier 2 to ILR: Clarification on the number of days outside the UK

[santiagosolari]

Hi,

I am currently on Tier 2 visa since 02/12/2013 and will be due for ILR Nov. 2018. I am a field based staff seconded to a major oil operator in the north sea working on an oil rig (which is only 45miles west off mainland but outwith UK territorial waters) and within the United Kingdom Continental Shelf on a 21 days in/21 days out rotation. I have only been out of the country 3 times within the qualifying period totalling 45 days. My salary and guaranteed offshore allowance have been paid in the UK and I have been paying Tax and NI throughout this period.

My main concern is that if I include the days offshore,I would have travelled 'abroad' 64 times in the 5year qualifying period and I will be on the brink (Using any 12months rolling period). By my calculation, I was away for actual 180 days at some point if I exclude the travel in and out dates.

Since my passport isn't stamped while going/coming back from the rig and due to closeness to the mainland. What's your advise please. Please see my dates in/out below(including anticipated trips);


DEPARTURE ARRIVAL
12/12/2013 19/12/2013
27/12/2013 09/01/2014
16/01/2014 23/01/2014
20/02/2014 27/02/2014
27/03/2014 03/04/2014
01/05/2014 08/05/2014
15/05/2014 21/05/2014
05/06/2014 12/06/2014
03/07/2014 17/07/2014
24/07/2014 30/07/2014
11/08/2014 21/08/2014
25/08/2014 01/09/2014
03/09/2014 17/09/2014
19/09/2014 25/09/2014
23/10/2014 30/10/2014
03/11/2014 10/11/2014
24/11/2014 04/12/2014
27/12/2014 07/01/2015
27/01/2015 02/02/2015
05/02/2015 12/02/2015
16/02/2015 23/02/2015
07/03/2015 28/03/2015
16/04/2015 23/04/2015
27/04/2015 04/05/2015
21/05/2015 28/05/2015
01/06/2015 08/06/2015
17/06/2015 24/06/2015
15/07/2015 24/07/2015
03/09/2015 10/09/2015
14/09/2015 21/09/2015
09/10/2015 15/10/2015
19/10/2015 26/10/2015
12/11/2015 19/11/2015
23/11/2015 30/11/2015
17/12/2015 23/12/2015
28/12/2015 05/01/2016
14/01/2016 04/02/2016
25/02/2016 17/03/2016
19/05/2016 09/06/2016
30/06/2016 21/07/2016
11/08/2016 01/09/2016
22/09/2016 13/10/2016
03/11/2016 24/11/2016
15/12/2016 05/01/2017
26/01/2017 16/02/2017
09/03/2017 17/03/2017
23/03/2017 30/03/2017
20/04/2017 11/05/2017
01/06/2017 22/06/2017
13/07/2017 03/08/2017
24/08/2017 14/09/2017
05/10/2017 26/10/2017
19/11/2017 10/12/2017
29/12/2017 18/01/2018
08/02/2018 02/03/2018
22/03/2018 12/04/2018
03/05/2018 11/05/2018
21/06/2018 05/07/2018
26/07/2018 16/08/2018
06/09/2018 27/09/2018
18/10/2018 08/11/2018

[cyclina1]

the date you leave and back to the UK soil are not count as absent. calculate again yourself.

[CR001]

Useful also to put total number of whole days out next to each set of dates instead of expecting members to calculate it.

[santiagosolari]

Hi CR001,

Thanks for the prompt response and apologies, please see the number of whole days below;

DEPARTURE ARRIVAL WHOLE DAYS
12/12/2013 19/12/2013 6
27/12/2013 09/01/2014 12
16/01/2014 23/01/2014 6
20/02/2014 27/02/2014 6
27/03/2014 03/04/2014 6
01/05/2014 08/05/2014 6
15/05/2014 21/05/2014 5
05/06/2014 12/06/2014 6
03/07/2014 17/07/2014 13
24/07/2014 30/07/2014 5
11/08/2014 21/08/2014 9
25/08/2014 01/09/2014 6
03/09/2014 17/09/2014 13
19/09/2014 25/09/2014 5
23/10/2014 30/10/2014 6
03/11/2014 10/11/2014 6
24/11/2014 04/12/2014 9
27/12/2014 07/01/2015 10
27/01/2015 02/02/2015 5
05/02/2015 12/02/2015 6
16/02/2015 23/02/2015 6
07/03/2015 28/03/2015 20
16/04/2015 23/04/2015 6
27/04/2015 04/05/2015 6
21/05/2015 28/05/2015 6
01/06/2015 08/06/2015 6
17/06/2015 24/06/2015 6
15/07/2015 24/07/2015 8
03/09/2015 10/09/2015 6
14/09/2015 21/09/2015 6
09/10/2015 15/10/2015 5
19/10/2015 26/10/2015 6
12/11/2015 19/11/2015 6
23/11/2015 30/11/2015 6
17/12/2015 23/12/2015 5
28/12/2015 05/01/2016 7
14/01/2016 04/02/2016 20
25/02/2016 17/03/2016 20
19/05/2016 09/06/2016 20
30/06/2016 21/07/2016 20
11/08/2016 01/09/2016 20
22/09/2016 13/10/2016 20
03/11/2016 24/11/2016 20
15/12/2016 05/01/2017 20
26/01/2017 16/02/2017 20
09/03/2017 17/03/2017 7
23/03/2017 30/03/2017 6
20/04/2017 11/05/2017 20
01/06/2017 22/06/2017 20
13/07/2017 03/08/2017 20
24/08/2017 14/09/2017 20
05/10/2017 26/10/2017 20
19/11/2017 10/12/2017 20
29/12/2017 18/01/2018 19
08/02/2018 02/03/2018 21
22/03/2018 12/04/2018 20
03/05/2018 11/05/2018 7
21/06/2018 05/07/2018 13
26/07/2018 16/08/2018 20
06/09/2018 27/09/2018 20
18/10/2018 08/11/2018 20

[CR001]

Not sure how the substantial absence over 2016/2017 will affect you as you are working outside the UK the 12 mile UK territorial waters, which is what HO used for immigration purposes.

https://www.gov.uk/government/publicati ... s-wrk24--2

4. WRK2.4.4 What is the UK Continental Shelf (UKCS) and is it the same as UK territorial waters?
No. The UKCS is the 200 mile zone in which our sovereignty relates only to the exploitation of resources. This should not be confused with the 12 mile zone which is defined as ‘UK territorial waters’ (where we apply immigrations controls). When assessing visa applications it may be necessary to confirm with the applicant that they understand the difference.

The Calculating Continuous Residence guidance also doesn't seem to be clear on your circumstances.

https://assets.publishing.service.gov.u ... .0-EXT.pdf

You also state that you are 'seconded'. Presumably you are not 'contracting' but are still working for and being paid via PAYE by your Tier 2 sponsor??

[santiagosolari]

Hi CR001,

Thanks for your prompt response. No, I am not contracting, I work for a Tier 2 sponsor and being paid under PAYE by my sponsor.

I have inputted my absence days in a spreadsheet and I have not been above 180 days in any 12 month period and that includes 2016/2017 although I was bang on 180 days absent around 04/17-04/18.


Would you recommend the use of a solicitor as my case seems peculiar

[Akorotaeva]

I think that if your Tier 2 visa was issued pre Jan 2018 you can split absences and therefore time yoir application? I remeber seeing something about the HO backtracking on the retrospective impact of the "any 12 month period" change.

[CR001]

I think that if your Tier 2 visa was issued pre Jan 2018 you can split absences and therefore time yoir application? I remeber seeing something about the HO backtracking on the retrospective impact of the "any 12 month period" change.

Kindly post a link to what you believe is a retrospective backtrack for Tier 2 General MAIN visa holders?

There was a backtrack for PBS DEP visa holders but not for main Tier 2 G holders.

[trueblue19]

Kindly post a link to what you believe is a retrospective backtrack for Tier 2 General MAIN visa holders?

There was a backtrack for PBS DEP visa holders but not for main Tier 2 G holders.

The new SETO form released in July 2018 has the following advise under Section 6.3


SET(O) Version 07/2018
Page 21

6.3 What evidence has been provided to support the reasons for all absences from the UK?
Evidence of all work-related absences (including paid annual leave) is required from those
applying under:

• Tier 2 (Intra-Company Transfer)
• Tier 2 (General)
• Tier 2 (Minister of religion)
• Tier 2 (Sportsperson)
• Other permitted employment categories - except Tier 1

If you are in one of these categories, you must not have had absences from the UK of more
than 180 days in any 12 months. For settlement applications made from 11 January 2018, we
consider absences from the UK on a rolling basis, rather than in separate consecutive 12-month
periods. If your qualifying period includes leave granted before 11 January 2018, any absences during
that leave will be considered under the previous rules – in separate 12-month periods, ending on
the same date as you make your settlement application.

For example, you apply for settlement on 30 June 2020. Your continuous period includes the
following grants of leave:

• one grant of leave from 1 July 2015 to 28 July 2018 – any absences during this grant of leave will be considered in separate 12 month periods, ending on 30 June each year
• one grant of leave from 29 July 2018 to 30 June 2020 – any absences during this grant of leave will be considered on a rolling basis - we will not include any absences from the previous grant of leave when we assess this

[IJOS]

Since your passport is not stamped when you go in and out of the rig, why do you need to put this absence as an absence. What proof is there that you were not in the UK. I'm confused at this. I asked a friend who just got his ILR and also works offshore and he said not to complicate issues unnecessarily

[CR001]

Immigration Rules Part 6a - 245AAA has also been amended.

https://www.gov.uk/guidance/immigration ... sed-system

Contents Immigration Rules part 6A: the points-based system
Immigration Rules part 6A: the points-based system
Points-based system (paragraphs 245AAA to 245ZZE).

245AAA.General requirements for indefinite leave to remain
The following rules apply to all requirements for indefinite leave to remain in Part 6A and Appendix A:

(a) References to a “continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
(i) the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:
(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose; and
(2) for any absences from the UK during periods of leave granted under the Rules in place before 11 January 2018, the applicant must not have been absent from the UK for more than 180 days during each consecutive 12 month period, ending on the same date of the year as the date of the application for indefinite leave to remain.

[Akorotaeva]

Am I right in thinking it *has* been amended for main applicants, or am I misunderstanding something?

[CR001]

Am I right in thinking it *has* been amended for main applicants, or am I misunderstanding something?

I have posted the immigration rules, which trumps any guidance notes. Not sure what is not clear??

[santiagosolari]

Since your passport is not stamped when you go in and out of the rig, why do you need to put this absence as an absence. What proof is there that you were not in the UK. I'm confused at this. I asked a friend who just got his ILR and also works offshore and he said not to complicate issues unnecessarily

Thanks IJOS for your message. This was my initial thinking until a colleague advised me that offshore was classed as absence and referred me to the Calculating Continuous Residence guidance. Also, my job title as 'offshore' in it. I am just concerned that If i dont include it, my job title will be a red flag

[Akorotaeva]

Am I right in thinking it *has* been amended for main applicants, or am I misunderstanding something?

I have posted the immigration rules, which trumps any guidance notes. Not sure what is not clear??

Yes, these amendments to the rules was what I remember seeing.

Your original message challenged my impression that the method of calculatiom has been reverted to consecutive 12 month periods for those with Tier 2 leave issued pre-Jan 2018. Hence my confusion...

[IJOS]

Since your passport is not stamped when you go in and out of the rig, why do you need to put this absence as an absence. What proof is there that you were not in the UK. I'm confused at this. I asked a friend who just got his ILR and also works offshore and he said not to complicate issues unnecessarily

Thanks IJOS for your message. This was my initial thinking until a colleague advised me that offshore was classed as absence and referred me to the Calculating Continuous Residence guidance. Also, my job title as 'offshore' in it. I am just concerned that If i dont include it, my job title will be a red flag

Okay i understand now. Do you go to the same platform/rig always or do you go to different ones because some of the rigs would be in the UK waters? if your absence is not up to 180 though I would not be worried at all.And if its more than 180, i believe exceptions can be made due to economic reasons.well not I believe I saw it somewhere in the rules.

[santiagosolari]

I will like to thank everyone on this forum.

On Thursday, 15th Nov. My ILR application was successful!


Cheers