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Question: TLR w/ work permit - how long can I be out of UK?

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FestusThomson
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Question: TLR w/ work permit - how long can I be out of UK?

Post by FestusThomson » Sat Nov 29, 2008 1:21 pm

Hi,

I've tried reading the FAQ and searching for an answer to the following question, but so far haven't been able to find one. Apologies if this has been asked and answered.

Background: I'm a US citizen in the UK on a work permit with the usual 5 year TLR. I've just lost my job, and wish to go back to the states for a bit to scout for jobs there, before returning to the UK to scout for jobs here. My question is this:

1) How long am I allowed to be out of the UK in my current situation? I've heard sixty days mentioned, but I can't find any documentation of this on the relevant government websites.

2) What are the consequences of exceeding the time period from question 1?

3) With respect to gaining ILR (which I'd planned to do at the end of my current visa) is there any additional/different regulation regarding how long I'm allowed to be out of the country during the 5 year period?

Thanks. Again, sorry if I'm asking an obvious quetion.

FestusThomson
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Post by FestusThomson » Sat Nov 29, 2008 2:07 pm

After further searching, it appears that ILR requires <235 days of absence, and no >90 day absences. I'd appreciate it if someone could tell me whether I'm wrong there. That still leaves open the question of whether there are different regulations for question #1.

I also have an additional question: Let's say it takes me six months to find a new job. Would that period of unemployment be a determining factor in issuing ILR?

MrBaboo
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Re: Question: TLR w/ work permit - how long can I be out of

Post by MrBaboo » Sun Nov 30, 2008 3:42 pm

My sympathies on losing your job. I'm sure its not an easy thing to deal with let alone the immigration issues it raises for you.

If you are on a work permit and you've now lost your job, presumably the company will inform the home office and your work permit will be cancelled and your current leave to remain curtailed. If this happens you'll get a letter from the Home Office indicating you have 28 days to leave the country and you will not be allowed reentry on your current visa after it has been curtailed.

Now some companies may not be that organised especially if their HR department has organisational change to deal with so the may not do it (or may not do it straight away).

If they don't cancel it and you re-enter the country on this visa, when the immigration officer asks you if you're still employed by this company you'd either tell the truth (in which case your entry may be denied) or you'll lie (not recommended and if it was subsequently found out it could have serious consiquences for visas you subsequently get).

W.r.t. ILR requirements, bear in mind the government is planning a new naturalisation/immigration regime to go live late next year so its uncertain what the exact requirements will be in the future. We should know more in January when the full legislation is put before parliament.

As it stands today, the requirements on absenses abroad are ill-defined and largely at the discretion of the case worker / their managers. The maximum number of days abroad over 5 years seems to float between 6 months and 225 days from reading various cases on this forum. Weekends during those absences may or may not be included as may or may not be the day of departure and return. A common theme across most of the cases I've read suggests absences of greater than 90 days really will scupper any chance of ILR.

You may want to read the current Set(O) form (for employment-based ILR applications) as it states the evidence you need to provide depending on your leave to remain. For work permit holders it requires:
Recent document(s) from the employer named in your current work permit confirming that you are still needed and that that your employment with them is continuing.
Document(s) confirming that you have spent a continuous period of 5 years in the UK:
- either as a work permit holder throughout that period, or
- as a work permit holder most recently combined with previous permission as a work permit holder, highly skilled
migrant, self-employed lawyer, or writer, composer or artist.
Given your current situation, I believe it will be difficult to satisfy these requirements.

Your best bet, if you wish for your current LTR as a work permit holder to count towards ILR, is to apply as quickly as possible for a Tier 1 visa (if you qualify) or try to get a Tier 2 sponsorship. If that can all happen before your current leave is curtailed, you may be lucky.

Not the best news, I'm afraid.

republique
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Post by republique » Sun Nov 30, 2008 3:53 pm

FestusThomson wrote:After further searching, it appears that ILR requires <235 days of absence, and no >90 day absences. I'd appreciate it if someone could tell me whether I'm wrong there. That still leaves open the question of whether there are different regulations for question #1.

I also have an additional question: Let's say it takes me six months to find a new job. Would that period of unemployment be a determining factor in issuing ILR?
How long have you been on your work permit and working for this company?
If you just lost it, you might be able to switch to Tier 1 if you apply quickly so to have the requisite income level to gain max points.
Last edited by republique on Sun Nov 30, 2008 3:57 pm, edited 1 time in total.

MrBaboo
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Post by MrBaboo » Sun Nov 30, 2008 3:55 pm

FestusThomson wrote:I also have an additional question: Let's say it takes me six months to find a new job. Would that period of unemployment be a determining factor in issuing ILR?
If you switched to a Tier 1 visa, 6 months of unemployment may very well disqualify you from getting ILR. Again the requirements are very vague on exactly how long you can be out of work before your employment is considered to be broken but from what I can tell, not > 6 months in total and no single period > 3 months is about the current measure.

6 months of unemployment on Tier 2 or a work permit visa is simply not permitted because of the nature of the visa (rather than aforementioned vague guideline) and so assuming you got away with it for whatever reason you couldn't reveal this in your ILR application (which you should because to not would be deception) and expect it to succeed.

Regarding my comments in the previous post, I'm not certain but I suspect you also have a duty to inform the Home Office of any material changes to the circumstances of your work permit visa (like no longer being employed by your company any more).

republique
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Post by republique » Sun Nov 30, 2008 4:01 pm

MrBaboo wrote:
FestusThomson wrote:I also have an additional question: Let's say it takes me six months to find a new job. Would that period of unemployment be a determining factor in issuing ILR?
If you switched to a Tier 1 visa, 6 months of unemployment may very well disqualify you from getting ILR. Again the requirements are very vague on exactly how long you can be out of work before your employment is considered to be broken but from what I can tell, not > 6 months in total and no single period > 3 months is about the current measure.

6 months of unemployment on Tier 2 or a work permit visa is simply not permitted because of the nature of the visa (rather than aforementioned vague guideline) and so assuming you got away with it for whatever reason you couldn't reveal this in your ILR application (which you should because to not would be deception) and expect it to succeed.

Regarding my comments in the previous post, I'm not certain but I suspect you also have a duty to inform the Home Office of any material changes to the circumstances of your work permit visa (like no longer being employed by your company any more).
There is no employment considered broken for Tier 1. To qualify for ILR, there is a residence requirement that may be considered broken if you leave the country for long periods or too many times. It has nothing to do with how long you are unemployed.
For Tier2, there isn't employment considered broken either. You just can't keep the visa if you are not working. Try not to mash ideas together.

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Post by paulp » Sun Nov 30, 2008 4:23 pm

Have they changed the economic activity requirement during the move from HSMP to Tier 1?

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Post by MrBaboo » Sun Nov 30, 2008 5:28 pm

republique wrote: There is no employment considered broken for Tier 1. To qualify for ILR, there is a residence requirement that may be considered broken if you leave the country for long periods or too many times. It has nothing to do with how long you are unemployed.
For Tier2, there isn't employment considered broken either. You just can't keep the visa if you are not working. Try not to mash ideas together.
I'm having mash for tea tonight. I'm not mashing ideas but making an educated guess from the SET(O) document.

The current SET(O) form:
Tier 11 (General) migrant If you are applying for indefinite leave to remain on completing 5 years’ continuous stay in
the UK made up of leave as a Tier 1 (General) migrant and leave as a highly skilled migrant, work permit holder, innovator,
self-employed lawyer or writer, composer or artist, in addition to the relevant documents in99AA, you must provide the follow-
ing documents:
Evidence that you are economically active in the UK in employment or self--employment or both, and have been
since you were granted leave to remain as a Tier 1 (General) migrant
. This evidence should take the form of documents show-
ing your personal earnings (if you are employed) or the the progress of the business (if you are self-employed).
This is quite a bit more restrictive than the evidence required for HSMP ILR applications (notably it mentions employment and the entireity of one's stay on a Tier 1 visa).

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Post by MrBaboo » Sun Nov 30, 2008 5:32 pm

paulp wrote:Have they changed the economic activity requirement during the move from HSMP to Tier 1?
See my post above. In a word, possibly. :) We'll have a better idear if Tier 1 holders start applying for ILR and things come unstuck based on gaps in employment.

As a WP->HSMP->Tier1 looking for ILR/probationary citizenship, I'm making sure there are no gaps in my employment/self-employment.
Last edited by MrBaboo on Sun Nov 30, 2008 5:46 pm, edited 1 time in total.

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Post by MrBaboo » Sun Nov 30, 2008 5:43 pm

MrBaboo wrote: I'm having mash for tea tonight. I'm not mashing ideas but making an educated guess from the SET(O) document.
And my ideas on the maximum possible time out of work, again an educated guess, comes from this old case worker guidance: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Interestingly, this guidance would have been used for HSMP ILR applications made at the time so perhaps it was never enforced to the letter.

I really wish UKBA was more clear on these things.

republique
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Post by republique » Sun Nov 30, 2008 5:47 pm

MrBaboo wrote:
I'm having mash for tea tonight. I'm not mashing ideas but making an educated guess from the SET(O) document.

The current SET(O) form:
Tier 11 (General) migrant If you are applying for indefinite leave to remain on completing 5 years’ continuous stay in
the UK ... and provide ...
Evidence that you are economically active in the UK in employment or self--employment or both, and have been
since you were granted leave to remain as a Tier 1 (General) migrant
.
This is quite a bit more restrictive than the evidence required for HSMP ILR applications (notably it mentions employment and the entireity of
one's stay on a Tier 1 visa).
It still doesn't mean you can't have gaps of employment. Second, you did mash the concept of continuity of residence being broken with working so again you shouldn't use the concept of continuity broken and unemployment in the same sentence.
Getting back to the OP, I would fix your permit situation by applying for Tier 1 quickly before running off to the USA unless you don't really care about your work permit status and happy to apply anew losing the time you were on it they could be applied to obtaining ILR.

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Post by MrBaboo » Sun Nov 30, 2008 6:02 pm

republique wrote: It still doesn't mean you can't have gaps of employment. Second, you did mash the concept of continuity of residence being broken with working so again you shouldn't use the concept of continuity broken and unemployment in the same sentence.
I never said you can't have gaps, please re-read. There were two questions - one on absences, one on unemployment. I addressed both (in separate posts btw).

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Post by republique » Sun Nov 30, 2008 6:07 pm

MrBaboo wrote:
If you switched to a Tier 1 visa, 6 months of unemployment may very well disqualify you from getting ILR. Again the requirements are very vague on exactly how long you can be out of work before your employment is considered to be broken but from what I can tell, not > 6 months in total and no single period > 3 months is about the current measure.



I never said you can't have gaps, please re-read. There were two questions - one on absences, one on unemployment. I addressed both (in separate posts btw).
My point is that you indeed mashed the two concepts together regarding unemployment and residential continuity being broken.

FestusThomson
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Post by FestusThomson » Sun Nov 30, 2008 6:12 pm

I don't qualify for Tier I as I never finished my bachelor's degree.

As to the home office being informed and being asked to leave the country within 28 days, I wasn't aware of that requirement. That's a rather short period of time in which to close up shop on my entire life here!

Edit: Could you point me to the relevant government website that contains information on what happens upon termination of employment? I can't find anything that specifies 28 days.
Last edited by FestusThomson on Sun Nov 30, 2008 6:24 pm, edited 1 time in total.

MrBaboo
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Post by MrBaboo » Sun Nov 30, 2008 6:13 pm

republique wrote:
MrBaboo wrote:
If you switched to a Tier 1 visa, 6 months of unemployment may very well disqualify you from getting ILR. Again the requirements are very vague on exactly how long you can be out of work before your employment is considered to be broken but from what I can tell, not > 6 months in total and no single period > 3 months is about the current measure.



I never said you can't have gaps, please re-read. There were two questions - one on absences, one on unemployment. I addressed both (in separate posts btw).
My point is that you indeed mashed the two concepts together regarding unemployment and residential continuity being broken.
If you say so.

republique
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Post by republique » Sun Nov 30, 2008 6:21 pm

FestusThomson wrote:I don't qualify for Tier I as I never finished my bachelor's degree.

As to the home office being informed and being asked to leave the country within 28 days, I wasn't aware of that requirement. That's a rather short period of time in which to close up shop on my entire life here!
It probably is a long shot but
why don't you try the points calculator before reaching any conclusions?
http://www.ukba.homeoffice.gov.uk/pointscalculator

MrBaboo
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Post by MrBaboo » Sun Nov 30, 2008 6:31 pm

republique wrote:
FestusThomson wrote:I don't qualify for Tier I as I never finished my bachelor's degree.

As to the home office being informed and being asked to leave the country within 28 days, I wasn't aware of that requirement. That's a rather short period of time in which to close up shop on my entire life here!
It probably is a long shot but
why don't you try the points calculator before reaching any conclusions?
http://www.ukba.homeoffice.gov.uk/pointscalculator
Well worth trying but if I remember correctly, Tier 1 does make it impossible to obtain sufficient points without a bachelors at least.

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Post by FestusThomson » Sun Nov 30, 2008 6:47 pm

republique wrote:[quote=
It probably is a long shot but
why don't you try the points calculator before reaching any conclusions?
http://www.ukba.homeoffice.gov.uk/pointscalculator
I did try the points calculator. That's how I came to that conclusion.

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Post by republique » Sun Nov 30, 2008 7:34 pm

FestusThomson wrote:
republique wrote:[quote=
It probably is a long shot but
why don't you try the points calculator before reaching any conclusions?
http://www.ukba.homeoffice.gov.uk/pointscalculator
I did try the points calculator. That's how I came to that conclusion.
Ok good

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Post by MrBaboo » Sun Nov 30, 2008 7:47 pm

FestusThomson wrote:I don't qualify for Tier I as I never finished my bachelor's degree.

As to the home office being informed and being asked to leave the country within 28 days, I wasn't aware of that requirement. That's a rather short period of time in which to close up shop on my entire life here!

Edit: Could you point me to the relevant government website that contains information on what happens upon termination of employment? I can't find anything that specifies 28 days.
I agree 28 days is a very short time but not unexpected from this very unsympathetic Home Office. You could always take a trip to Paris on the Eurostar and re-enter the next day/few days/week and tell the immigration officer (if they ask why you're re-entering so soon) that you're winding up your affairs on your way home.

I don't know where you'd find a description of what happens when the work permit is cancelled. Have a look on http://www.ukba.homeoffice.gov.uk/

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Post by FestusThomson » Sun Nov 30, 2008 11:00 pm

I'll be talking to an immigration solicitor shortly to get the ins & outs of what I can and can't do with the remainder of my visa. Hopefully I'll be able to make it home for Christmas, and maybe a short trip to the Continent, but that comes at my exact termination time, so who knows. At this point I'm pretty much resigned to moving back to the states (SF Bay Area - could be worse.)

A million thank-yous to everyone who has given advice here. It is much appreciated.

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Post by paulp » Mon Dec 01, 2008 8:35 am

Will you be looking for another WP/Tier 2 job? Good luck.

No place in blighty can compare to the bay area. It's a lovely place.

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Post by FestusThomson » Mon Dec 01, 2008 9:25 am

If I'd had any inkling that I was going to be made redundant, then I would have started lining up another job. Unfortunately the company I work for is highly dependent upon brick&mortar retailers, and they are either bankrupt or not buying anything, which screws our cashflow all to hell (not good for a manufacturing business.)

As it is, I'm kind of screwed. I've asked my employer to extend my termination date as long as possible (they're doing pay in lieu of notice) so hopefully I should be able to stick around until the end of January, but I'm putting in 2-month notice on my rental house today.

Yeah, the bay area is great. I'm gonna miss my 25 days per year of holiday, though.

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Post by MrBaboo » Mon Dec 01, 2008 10:47 am

Good luck. I hope it all works out for you.

mahesh008
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need advice on ILR with employement break, please!

Post by mahesh008 » Sat Aug 01, 2009 10:09 am

Dear forum members,

I'm about to apply for ILR as I have completed my 5 years in three catagories leading the PR ( WP + HSMP + Tier1).

My concern is regarding my stay in WP.

I have acquired my WP on 27th Aug 2004 till 26 Aug 2009. But I worked for that company only till 4th Mar 2006. I have stopped my work with this company and the company has sent a Premature End of employment form to Home Office. But I have not received any letter from Home Office to leave to UK. Then I applied for HSMP which I has been approved in Oct 2006.

I was on HSMP for two years since then and also being employed. In Oct 2008 I had HSMP extension which was given as Tier1. I'm on Tier1 since then.

Can I amalgamate all these catagories and apply for ILR? Even though my work was premeturely terminated I still had a work permit which was curtailed after I have been given the HSMP.

I appricate any advice please.

Many thanks,
Mahesh

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