ILR refusals on ground of absences

[Kazza]

Hello all

I've had my Indefinite Leave to Remain refused as I've had over 6 months absences (11 months to be exact) in 5 years. I have two complaints about this. Firstly amount of absences was never a criteria that was made clear at the time of application (I could have saved myself £750). Secondly, my 11 months of absence were all taken on paid annual leave. I am a school teacher and therefore receive 12 weeks of paid annual leave per year - and I have taken this leave by holidaying abroad each time.

Just to add insult to injury they have stated that I have NO right to appeal as I can continue to stay here until my Leave to REmain attached to my Work Permit.

Does anyone have any advice on what to do next? I find all of this so hard to believe!

Karen

[SYH]

Hello all

I've had my Indefinite Leave to Remain refused as I've had over 6 months absences (11 months to be exact) in 5 years. I have two complaints about this. Firstly amount of absences was never a criteria that was made clear at the time of application (I could have saved myself £750). Secondly, my 11 months of absence were all taken on paid annual leave. I am a school teacher and therefore receive 12 weeks of paid annual leave per year - and I have taken this leave by holidaying abroad each time.

Just to add insult to injury they have stated that I have NO right to appeal as I can continue to stay here until my Leave to REmain attached to my Work Permit.

Does anyone have any advice on what to do next? I find all of this so hard to believe!

Karen

I dont know how you missed the fact that you shouldn't have too many absences to apply for ILR. You can reapply closer to the end of your leave and perhas your absences for the last 5 years will be less.

[thsths]

I've had my Indefinite Leave to Remain refused as I've had over 6 months absences (11 months to be exact) in 5 years. I have two complaints about this. Firstly amount of absences was never a criteria that was made clear at the time of application (I could have saved myself £750). Secondly, my 11 months of absence were all taken on paid annual leave. I am a school teacher and therefore receive 12 weeks of paid annual leave per year - and I have taken this leave by holidaying abroad each time.

Sorry to hear that. Usually the rule is 90 days per years, but for work permit holders it seems to be 6 months total. That used to be in Annex F, which I cannot find now due to all the restructuring chaos (and I am not really up to date anyway).

Just to add insult to injury they have stated that I have NO right to appeal as I can continue to stay here until my Leave to REmain attached to my Work Permit.

Get a good solicitor, and look at your options. No right to appeal does not automatically mean that you have no recourse. You could at least get your money back if the rules changed while your application was pending.

Tom

[Wanderer]

Hello all

I've had my Indefinite Leave to Remain refused as I've had over 6 months absences (11 months to be exact) in 5 years. I have two complaints about this. Firstly amount of absences was never a criteria that was made clear at the time of application (I could have saved myself £750). Secondly, my 11 months of absence were all taken on paid annual leave. I am a school teacher and therefore receive 12 weeks of paid annual leave per year - and I have taken this leave by holidaying abroad each time.

Just to add insult to injury they have stated that I have NO right to appeal as I can continue to stay here until my Leave to REmain attached to my Work Permit.

Does anyone have any advice on what to do next? I find all of this so hard to believe!

Karen

I dont know how you missed the fact that you shouldn't have too many absences to apply for ILR. You can reapply closer to the end of your leave and perhas your absences for the last 5 years will be less.

Ignorance of the law is no defence I'm afraid. It's up to the OP to ensure they are aware of their conditions of stay and abide by them.

[VictoriaS]

You can write and ask for reconsideration.


Victoria

[kariarxy]

What is written on the refusal letter ?

I sent enquiry to immigration enquiry:

Dear Sir/Madam,
According to Immigration directorate instructions Employment annex F, in assessing whether or not an applicant has fulfilled the requirement to have spent 5 years in continuous residence in the same capacity, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the United Kingdom),
may be disregarded. In addition, longer absences abroad should not be of more than 3 months, and they must not amount to
more than 6 months in all.

1. What do you mean "short" here? One week, or one month, or as long as the asbsence is within paid annual leave, it can be disregarded?

2. We usually have 5 weeks annual leave, can we take all of them as a holiday at a time (i.e., can 35 days absence be disregarded if they are all paid annual leave?)


here are the reply I got from Immigration Enquiry:
Dear Sir/Madam,



Thank you for your enquiry.



Please be advised that, if you are paid normal salary while on the annual leave, it will be discounted. however, this will be at the discretion of the caseworker.



One of the main requirements relating to settlement on the basis of Work Permit Employment / the Highly Skilled Migrant Programme is that the applicant has spent a continuous period of 5 years in the United Kingdom in this capacity.



Time spent out of the United Kingdom may be discounted if it is for paid annual leave or business trips that are necessary due to employment commitments. If the absence from the UK is during a period of unpaid leave, it is not discounted and will be used in calculating absences when considering an application for Indefinite Leave to Remain.



Any absences other than paid annual leave or necessary business trips should not exceed 3 months at a time or 6 months in total over the 5 year period.



However, if there were exceptional compassionate or compelling circumstances relating to why you would need to leave the UK for a prolonged period, this would be taken into consideration by the settlement caseworker - although we would be unable to guarantee the outcome of such an application.



I hope that this is of some assistance to you.



Yours faithfully,





Amrit Haria
Managed Migration
Border & Immigration Agency


Based on their suggestions, you should not be refused, So maybe u can ask for reconsideration. And one member called "was" got ILR granted with over 400 days absences.

Good luck.

[Kazza]

Thanks to all who have replied. I am now writing to the Home Office for a reconsideration of my application. My refusal letter states that "in view of the fact that your absences from the UK amount to more than six months the Secretary of State is not satisfied that you have spent a continuous period of 5 years in the UK in this capacity"

It also states that I have no right to appeal as I still have Leave to Remain under my Work Permit.

I just cannot fathom how this could have happened.

Thanks again to all who have helped - any more information would be greatly appreciated.

Karen

[vinny]

See also ILR Processing: A CaseWorker's Guide/Manual.

[IMMIGRATION LAWYER]

I do not think that a reconsideration will work. That normally work with administrative errors, slips of a pen etc.

You do have a right for an appeal under human rights, though.

I had a similar case last years.

Went as high as a High Court...negative...

[kariarxy]

if the ILR is refused, when can the applicant reapply it? In kazza's case, 11 months absences exceed 6 months by 5 months, will s/he need to wait for another several years to complete a qualifed 5 year round or just wait for another 5 months compensate the excess?
There are so many members in this forum have absences more than 6 months, but do get ILR granted. It seems case worker have differernt discretions,;).

[SYH]

if the ILR is refused, when can the applicant reapply it? In kazza's case, 11 months absences exceed 6 months by 5 months, will s/he need to wait for another several years to complete a qualifed 5 year round or just wait for another 5 months compensate the excess?
There are so many members in this forum have absences more than 6 months, but do get ILR granted. It seems case worker have differernt discretions,;).

She can reapply as many times she wants

[sunny9675]

SYH

All know they can apply any time

reply / help / guide at what time

wether after 5 months or after recycle

regards

[SYH]

SYH

All know they can apply any time

reply / help / guide at what time

wether after 5 months or after recycle

regards

What are you talking about?
I don't see why you have to wait for anything.

[William Blake]

Is there a deadline for submitting a letter of reconsideration?

[chandu2004]

How about HSMP? How many days per year in absence will they take into account?

[vinay shanthi]

hsmp ilr req is exactly same as WP.

[vinay shanthi]

just one clarification regarding period outside uk. generally working in islands around uk like isle of man, guernsey etc are counted as outside uk for hsmp purposes if visa was issued in uk mainland.

but for visas issued in islands (any visa), the procedure is different. they have an additional advantage because of protection given by the 'integration of islands act'. because of this protection, any visa issued in the islands is considered equal to a visa issued on the mainland and also any period on the islands is considered for ILR.

if any of the people refused ILR had any of their visas issued in the islands, then they can give reference to the 'integration of islands act' and ask for that period to be counted for ILR purposes. hope this helps some people if they have been incorrectly denied ILR

by the way some of the mororns answering the ILR queries line didnt have a clue about this act and told me would be considered as outside uk even if visa issued on islands. i had to quote the act when i spoke to them on the phone, they put me on hold and spoke to supervisor and even then they didnt seem to have a clue and told any such cases will be considered on a case by case basis and no guarantees.

[syeda]

please advise me do we need to send passport for reconsideration for indefinite leave to remain .

Thank you

[HSMP_2007]

Hello Kazza,

Any updates on your ILR ?

Did u requested for reconsideration ? etc.

Please update your status ? i am also in same boat.

TIA

[Kazza]

Applied ILR in January. Denied in Feb. Wrote in asking to be reconsidered - got a reply 3 months later. Still no. Went to see my MP. He got the same reply as me. Now I'm waiting for new rules next year - I would hope that those who write the laws would have grown some brains and realised the idiocy of the absences for teachers....

[Tee-Bee]

What If situation :

Assuming if one has 2 passports with the UK WP stamp. The expired passport has the initial WP stamp and UK date of arrival.

Instead of supplying both passports, only the most recent one is submitted for ILR application. It could be that the old passport was missing.

Surely the case worker will have difficulties in obtaining the applicant's full history of absences?

[snow]

hI
tee- bee
Start new topic

[Salina]

wat are the options in case of ILR rejected (long absence).

1) Go bak to home country.
2) Extend for another few years so that u can qualify.

[sreed_iyer]

I would be applying for ILR in july...i have a total of 40-45 days in the last 5 years out of the country so i hope it should not be problem.

However my wife ( my dependant) has close to 6-8 months outside. So can she apply with me ?

[hsmp_seeker]

Hi,
Even I am in the same situation as sreed_iyer above. My wife has stayed outside UK for 5 months. Will it affect us during our ILR.

Thanks in advance.