ILR from Tier 2 - Unpaid Leave, 180 days absence, 60 days unemployment gap

[mr123x]

Background:
I was initially employed by the PREVIOUS EMPLOYER since April 2013 under my Tier 1 PSW visa. Then issued Tier 2 (General) - Shortage Occupation visa since November 2013 valid for 3 years and then extended on September 2016 under the same SOC Code.

However, I was made redundant in mid-January 2017 with the PREVIOUS EMPLOYER.

I was soon interviewed and offered a job with my CURRENT EMPLOYER was offered job following RMLT. Tier 2 (General) was issued on end March 2017 and started the job in early April 2017.

My travel details are as follows:

REASON DATE DEPARTED DATE RETURNED ABSENCE COMPANY LEAVE TYPE
Mothers death 14/11/16 04/01/17 50 7 Compassionate, 15 HR Agreed Absence, 4 Annual Leave, 4 Bank Holidays
Mothers illness 02/08/16 07/09/16 35 26.5 Annual Leave
Mothers illness / My Marriage 13/10/15 02/03/16 140 31 Unpaid, 21.5 Annual Leave, 4 Bank Holidays, 12 Leave in Lieu Taken
Mothers illness 10/05/15 08/06/15 28 18 Annual Leave, 2 Leave in Lieu Taken, 1 Bank Holiday
Work - Business Trip 20/04/15 01/05/15 10 1 Sickness Absence
Mothers illness & Visiting Family 05/12/14 21/01/15 46 22 Annual Leave, 4 Bank Holidays, 2 Leave in Lieu Taken
Visiting Family 05/12/13 15/01/14 40 23 Annual Leave, 4 Bank Holidays, 3 Leave in Lieu Taken


The following are the potential issues that I see in my ILR application and will appreciate thought from the forum members:

1. Unpaid Leave - Please advise which all the evidence documents I should keep in the ILR application.


31 days of unpaid leave taken with my PREVIOUS EMPLOYER mainly to support my mother who was a cancer patient. All my absences were approved and were taken in line with the annual holiday entitlement as per company policy. I nor my company was not aware of four weeks unpaid rule as this is not mentioned in Tier 2 PBS - Policy Guidance. It is only mentioned in the “Immigration Rules part 9: grounds for refusal (para 323AA)” which is not generally accessed by the majority of the migrants.

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,
(v) long term sick leave of one calendar month or more during any one period, or:
(vi) assisting with a national or international humanitarian or environmental crisis overseas, providing their Sponsor agreed to the absence(s) for that purpose.

1.1 Is it not an issue because a further application for leave to remain was granted me by Tier 2 switch of the employer which expressly permits the changes (see 323AA (a)) four weeks unpaid leave?

Or

Evidence document i: Letter(s) from employer(s) detailing reasons for work-related absences including periods of paid annual leave from the UK?

or

1.2 Should I get absence letter from the PREVIOUS EMPLOYER, if so what is the minimum data (the type of leave I took for all years or during limited my physical absence in the UK) it should provide? Note that I have only one work-related absence (business trip). My PREVIOUS EMPLOYER is now aware that they should not give unpaid leave to Tier 2 migrant and may give letter confirming my holidays & unpaid leave.

or

1.3 Should I avoid to utilise absence letter from the PREVIOUS EMPLOYER in the ILR application
It is clear from income tax paid Feb & March 2016 (HMRC data) that I had more than one months of unpaid leave.

or

1.4 Should I mention about my mother who was a Cancer patient and my absence was to provide palliative support for her and family under “Absences for serious or compelling reasons – evidential requirements”; medical documents and death certificate can be produced (also related to point 2). Note that I have not crossed for 180 days.

Evidence document ii: Letter from the applicant detailing reasons for absence due to compelling or compassionate reasons
Evidence document iii: Original official documents: (medical/birth/death certificate(s))
Evidence document iv: Other: Mothers medical reports from the hospital


2. 180 days’ absence; not issue on the new rule from January 2018 that accounts in any rolling 12-month period (worst case date of return 07/09/16 & 02/03/16 is 175 days and 178 days respectively). Moreover, in June 2018, it was confirmed that the new 180-day ILR absence rule will not apply in relation to leave held before January 2018. I believe, this is not an issue for me; please confirm.

3. The current total absence is 413 days and should be fine for the future 5 year period (450 days limit) and 12-month period (90 days). I believe, this is not an issue for me; please confirm.

4. 60 Days Unemployment gap is removed from January 2018 and it resulted in the removal of paragraph 245AAA(b). I believe, this is not an issue for me; please confirm.

Look forward to your valuable suggestions.

[mr123x]

Admin,

please delete this as I posted the question here in the incorrect board index; I have pasted the same question in Board index > United Kingdom - Points-Based Tiers > UK Tier 2 (Employer Sponsored) visas

uk-tier-2-employer-sponsored-visas/tier ... 61598.html

[mr123x]

Please help and let me know thoughts.

[Akorotaeva]

Was this 31 days in one year?

Your outline of absences doesn't make this very clear.

[mr123x]

Yes. it was in one calender year (jan to dec 2016 as per holidays booked in company system) and in one visit to India with absence of 140 days.

Why is the unpaid leave (para 323) not mentioned in any documents related to tier 2 migrant? I was genuinely not aware of this rule when I took the leave.

Now I feel I should have split it and booked in two calender year 2016 and 2017.

[CR001]

Absences prior to 1q January 2018 are not counted based on calendar years. It is 12 month cycles counting backwards from the date of ILR application.

. 3. The current total absence is 413 days and should be fine for the future 5 year period (450 days limit) and 12-month period (90 days). I believe, this is not an issue for me; please confirm.

The "450/90" days absence limit is relevant to citizenship and not ILR.

[mr123x]

Para 323 AA on unpaid leave is still counted in calender year. I am more worried on unpaid leave and the letter content I should get from previous employer. I am not much worried about 180 rules as i have not broke it on the old / transitional arrangement not in the new January 2018 rule.

I meant 450 / 90 days for future British citizenship after one year of ILR. There is no point in get ILR and not British citizenship.

[CR001]

Para 323 AA on unpaid leave is still counted in calender year. I am more worried on unpaid leave and the letter content I should get from previous employer. I am not much worried about 180 rules as i have not broke it on the old / transitional arrangement not in the new January 2018 rule.

I meant 450 / 90 days for future British citizenship after one year of ILR. There is no point in get ILR and not British citizenship.

Please don't post citizenship question in the ILR topics or sub forum!! They are completely different rules and requirements.

[mr123x]

Sorry about the British citizenship side tracking. One thing I don't understand is how can tier 2 migrant be allowed below 180 days absence (near that range) and be limited to take unpaid leave of four weeks. As most company provide 25 annual leave plus 8 bank holiday plus 19 days unpaid leave which would only allow maximum of 70 days absence. So how can anyone cross 100 days absence ?

[JP145]

Sorry about the British citizenship side tracking. One thing I don't understand is how can tier 2 migrant be allowed below 180 days absence (near that range) and be limited to take unpaid leave of four weeks. As most company provide 25 annual leave plus 8 bank holiday plus 19 days unpaid leave which would only allow maximum of 70 days absence. So how can anyone cross 100 days absence ?

180day country absence is absence from country and not the absence from work. so country absence can be due to any reason i.e business trip, business meetings, business training etc where you will not use your annual leave but still out of country.

[mr123x]

JP145, CR001 & members

I would appreciate your input for my intial query (1.1 to 1.4) on unpaid leave Para 323AA (a).

Thanks in advance.

[JP145]

JP145, CR001 & members

I would appreciate your input for my intial query (1.1 to 1.4) on unpaid leave Para 323AA (a).

Thanks in advance.

i cannot comment on unpaid leave as i also have situation of unpaid leave of 10.5 day. it was suggested by one of member that i should be fine with employer letter for 10.5 days of unpaid leave. but i cannot comment for your case. Sorry.

[mr123x]

I got ILR.

Didn't submit the letter from the previous employer; kept the P60 & P45 for 5 years.