ILR tactics - Tier 1 instead?

[gc123]

Have submitted ILR (HSMP-JR) after completing 4 years 8 months in UK. Going by many posts on here, I will be turned down as one non-work absence was 100 continuous days and apparently the (barely published *"guidelines"*) say that more than 90 days is a virtually automatic ILR rejection.

I don't mind going back to my own country, but my employer is anxious to keep me and sounds like they will certainly make it worth my while to stay.

As I understand it, if an ILR rejection comes through AFTER my HSMP expiry (late July 2010) then I would instantly become an illegal worker (this sounds almost impossible to believe in a civilised country, but there you go). Once that happens future applications , I presume, are difficult/impossible.

I would qualify for Tier 1 no problems.

Would the best tactic therefore be to wait until July and if I have heard nothing about ILR withdraw that application and send in an "in time" Tier 1 application?

Thanks for any advice.

[bani]

It is not quite that uncivilised.

If your ILR is rejected-

You can appeal it.

Or if your HSMP has not expired yet, you can apply for another Tier1(HSMP) extension. No need to make a whole new Tier1 application.

Or if your HSMP expired and no appeal allowed, you will be given time to quit your job and leave the country. You will not be an overstayer if you leave within a matter of weeks (is it 28 days?) and leave at your own expense. You can apply for Tier 1 from your home country then.

What are your total absences? Is it under 180 for the 2 years? If so, they could use discretion to overlook that mere 10 days you overshot the 90 day limit.

Good luck. Hopefully, you hear something in May or June, HSMP JR cases are relatively quickly decided.

As I understand it, if an ILR rejection comes through AFTER my HSMP expiry (late July 2010) then I would instantly become an illegal worker (this sounds almost impossible to believe in a civilised country, but there you go). Once that happens future applications , I presume, are difficult/impossible.

I would qualify for Tier 1 no problems.

Would the best tactic therefore be to wait until July and if I have heard nothing about ILR withdraw that application and send in an "in time" Tier 1 application?

Thanks for any advice.

[gc123]

Thanks Bani, that is really helpful.

I would probably be in trouble however you look at the absences. Total absences over the 4 years 8 months are around 265, around 235 excluding travel days, 220 excluding weekend-only trips.

In my favour (maybe):

have been residing here since 2003 (originally on working hol visa) and with same (public sector) employer that time

received a full monthly payslip 54/57 months

live with my parents that whole time (one is an EU citizen - i'm not eligible)

employer has written a good letter setting out my period of service and describing annual leave provision in detail

Thanks again for the advice. It's good to know there are options.