ILR Absences - UKBA clarification about conflict

[jami]

Contrary to general perception my opinion is that straight forward cases where there are no immediate travel plans should be applied through postal application and cases where there is some explainable issue should be taken to PEO.

This gives an opportunity to applicant to explain his case to the case worker face to face which is much more persuasive. As for higher fee is concerned same is also no issue if one opts for PEO Solihull/Glasgow/Belfast where fee is taken only after favorable decision.

HEO and SEO are officers higher in level than case worker.
All the PEO have these officers so where their approval is required it would be forthcoming on the spot if documentary evidence is provided.

Advice for you is to apply at PEO and draft a letter to SEO justifying longer absence and detailing evidence.

[some1]

As per my understanding for whatever reason if single absence at a time is not more than 3 months and overall absences in five years are less than 6 months than one is pretty safe and no evidence of absences is required.

However as an abundant precaution one should gather evidence and carry with him if availing same day service at PEO.

As for as your query regarding contacting UKBA is concerned a charity has developed a remarkable system/website for obtaining information -under Freedom of Information Act - from various organizations including UKBA. Their link is as under;

http://www.whatdotheyknow.com/body/ukba
One can contact UKBA through above website.


Alternatively in respect of ILR issues UKBA can be contacted directly at:


Permanent Migration
Operational Policy Team
2nd Floor, India Buildings,
Water Street
Liverpool
L2 0QN


Tel 0870 606 7766

Email SettlementOpsPolicy@homeoffice.gsi.gov.uk

Thanks a lot for quick reply and useful information .

[chosenaik]

Hi Jami, I was searching via Google for guidance on absence allowed for ILR. One of the results page showed that you received a letter (via the "Whatdotheyknow" website for UKBA with guidance. It satted that paid annual leave and business trips (less than 90 days) will excluded. Please can you let me know what was the date of the letter. The post on the website implied July 25, 2011, but the letter itself was not dated.

[jami]

Covering message of UKBA is dated 8 July 2011 and there is no date on attached letter. So when read togather date is 8th July.

http://www.whatdotheyknow.com/request/i ... ing-192235

[chosenaik]

Hi Jami, thank you for your response!

Can I pls clarify that "disregarded" in the following statement means an applicant can have >180 days absences as long as they are all annual paid leave and / or short business trips (I am presuming < 90 days):

"To simplify the position, short business trips and paid annual leave may be disregarded when calculating the continuous leave period".

If my above understanding is correct, it doesnt matter how many PAID annual leave you have in the 5 year period. Also, business trips of less than 90 days also pose no problem.

Thank you and God bless!

[sam76]

Hi Jami,
Many thanks for your guidance, in advance.
I completed 5 years in the UK last year i.e. in Aug 2010 and Im working towards applying for the ILR only now.
Im keen to seek your advice based on the below points:
1. I entered the UK in Aug 2005 on a WP with company A and continued on that WP Visa till its expiry on 30th Nov 2008.
2. Before leaving the UK on 30th Nov 2008 I applied for another WP through company B (somewhere around Nov 18th 2008 whilst I was still in the UK and I have fax copies and delivery receipts of the application form which was sent to the UK Border Agency to establish that this WP was requested prior to leaving the UK by myself), the new WP came through with the date of issue as 10th Dec 2008 at which time I was in India,
3. I then got the Visa stamping done in India and this visa had the start date of 31st Dec 2008, meaning there is a gap of one month between the expiry of my 1st WP Visa with company A and the new WP visa from company B.
4. I then came back to the UK on 21st Feb 2009 (which means I was away for less than 90 days between 30th Nov 2008 to 21st Feb 2009)
5. Then before the expiry of this new WP in June 2010 I applied and got my Tier 2 visa which is valid till 2012 with the same Company B

So in short there is a gap of one month between my two Visas. I would be extremely grateful if you could guide me on whether I’m eligible at all for the ILR.

Many Thanks again for your support on this.

Best Regards
Sam

Covering message of UKBA is dated 8 July 2011 and there is no date on attached letter. So when read togather date is 8th July.

http://www.whatdotheyknow.com/request/i ... ing-192235

[jami]

sam76,

Gap between 2 entry clearnce is not covered by any concession.
It is a break of continous period in UK hence your ILR clock has been reset from 31 Dec 2008.

[sam76]

Hi Jami, Thanks for your reply.
But in one of your previous posts you have said
"Break in leave in UK is not absence from UK rather break between two leaves which breaks the qualifying period and re-sets ILR clock. Suppose for example one Tier 1 applicant had entry clearance/leave to remain in UK of three years ending on 31/3/2010. He applied for extension/further leave to remain in UK on 25/3/2010 and his payment was declined and application was returned as invalid on 15/4/2010. He applied again on 20/4/2010 and leave was extended for two years on 30/4/2010. Since valid application was filed on 20/4/2010 therefore there is break in leave from 1/4/2010 to 20/4/2010 or for that matter up to 30/4/2010.

Now this break in leave would be ignored as per new guideline to be issued. "

Apologies if I misinterpreted the above excerpt from your response but if you could throw some light on this in the context of my case it would really help.
Many Thanks Again,
Sam

sam76,

Gap between 2 entry clearnce is not covered by any concession.
It is a break of continous period in UK hence your ILR clock has been reset from 31 Dec 2008.

[jami]

Break in leave in UK means that applicant remains in UK and further leave to remain in UK is given on an application which was filed after expiry of earlier leave.

Whereas in your case it appears that though your employer applied for certificate of approval before expiry of your earlier leave yet you did not file your FLR in UK rather applied again for entry clearance from abroad. Hence you are not entitled to any concession/discretion.

[mkhushi]

Below is my case:

I was on work permit from 5-Nov-2006 and switch to TIER 1 from 13 May 2008. Before ILR I had to get one more extension on TIER 1 to complete my five years. I submit my application for TIER1 extension on 4th April 2011 and HO return my application on 26th May 2011 as INVALID because visa payment was not successful. By this time my visa was already expired on 13th May 2011.

1. Work Permit - 5 Nov 2006
2. TIER 1 - 13 May 2008
3. Submit application for TIER 1 extension on 4 Apr 2011
4. HO return my application as INVALID on 26 May 2011 due to payment issue (they were confused between one number for expiry date and use '2' instead of '1'. Although number doesn't look like '2' nor it is very clear as '1')
5. TIER 1 visa was already expired on 13 May 2011
6. Re-submit my application for TIER 1 extension on 13 Jun 2011 in Sheffield PEO and got the extension for 2 years along with my dependents.
7. Now there is a break in my application from 14 May 2011 - 12 Jun 2011.

May I still eligible for ILR which is due on 4 Nov 2011 ?

Please advise.

Best regards
Khushi

[jami]

mkhushi,


Blew is extract of UKBA reply reproduced in my first post on this topic dated 10 Jul 2011:

"To simplify the position, short business trips and paid annual leave may be disregarded when calculating the continuous leave period. Breaks of leave within the UK and other longer absences outside the UK for either compassionate or work related reasons may come within the discretion, provided in each case they do not exceed 6 months in total of the 5 year
period. These absences must be approved by a senior officer at either HEO or SEO grade. "

In above extract " Breaks of leave within the UK " covers your situation. Later on in my email to UKBA reproduced in my post dated 12 July 2011 this issue was raised again as under:

"9. Break in leave in UK not covered in continuous period "

Whereas extract from reply of UKBA on this issue as reproduced in my aforesaid post reads as under:

" As far as breaks in leave within the UK are concerned, this is currently covered here in the Modernised Guidance:

"Time spent here may exceptionally be aggregated, and continuity not insisted upon, for cases where:

• There have been no absences abroad, see calculation of the five year period for settlement, and authorised employment or business in the UK has not been broken by any interruptions of more than three months or amounting to more than six months in total for the whole five year period. Decisions in such cases must be taken at HEO level or above."

Once the formal review of this guidance has been undertaken, this will be highlighted to all staff undertaking settlement cases and will be available on HO Intranet as well as UKBA website. This should lessen any potential consistency issues in the different parts of UKBA. "


As such UKBA is saying that this situation is already covered in their guidance.Hence your break period should be "aggregated" as earlier application dated 4 April 2011 was filed well within the period of leave expiring on 13 May 2011 and same was returned on 26 May 2011 due to inadvertent payment issue. File evidence that you had the requisite amount in your account/card balance at the material time.
If possible than explain the delay of reapplying on 12 June 2011 whereas application was returned on 26 May 2011. I think your re-applying was not prompt but should not be a problem if you had the requisite fee/funds at the time of earlier application.

[mkhushi]

Thank you so much for your honest and helpful advise.

Yes, I always had sufficient funds to cover main and dependent applications.
13th June was earliest appointment I could get in PEO to re-submit my application. I will include all this detail in my ILR application.

Many thanks.

best regards

Khushi

[rizwanpcsir]

Dear jami i really appreciated your generous help being providing on this board. I would be very great full if you please give me some help on my ILR case. I applied ILR application based 10 years long residency but my application refused reason not valid leave between 16 july 2006-28Feb 2007. my following immigration history as:
enter uk student visa 14 march 2001 extend leave to remain 20 Jan 2006.
applied leave to remain 1 Jan 2006 but refused visa. i did appeal also refused in 16 July 2006. thereafter my solicitor sent reconsideration to Home office in 1 August 2006 and 28 November 2006 but i haven't received any reply from home office. In 28 Feb 2007 i sent fresh leave to remain as student to home office and it was surprised home office give me extension even i don't have valid leave to remain 16 July 2006-28 feb 2007. Now in July 2011 i applied ILR based 10 years long residency but refused and reason not valid leave between 16 July 2006-28Feb 2007 about seven month gap. i applied reconsideration also refused. i still have student visa till 28 jan 2012 that's home office didn't give me appeal rights. could you help me please even that period when i don't have visa i was still living in uk is it still consider gap even i was in uk? second how much chances if i take my case high court under judicial review is it positive chance i win the appeal? kind regards

[jami]

Normally gap of ten days is ignored between two leaves to remain in UK in order to calculate 10 years stay in UK for ILR. This means that discretion in this regard has been provided by UKBA. Further discretion is provided under compelling circumstances.

Your appeal was rejected on 16 July 2006 and reconsideration request to HO was filed on 01 Aug.2006 which remained pending till fresh leave applied on 28 Feb 2007.

Hence in JR it can be argued that actual gap is from 16 July 2006 to 1 August 2006 ( not from 16 July 2006 to 28 Feb.2007) and discretion should have been exercised regarding break in leave.

[rizwanpcsir]

Normally gap of ten days is ignored between two leaves to remain in UK in order to calculate 10 years stay in UK for ILR. This means that discretion in this regard has been provided by UKBA. Further discretion is provided under compelling circumstances.

Your appeal was rejected on 16 July 2006 and reconsideration request to HO was filed on 01 Aug.2006 which remained pending till fresh leave applied on 28 Feb 2007.

Hence in JR it can be argued that actual gap is from 16 July 2006 to 1 August 2006 ( not from 16 July 2006 to 28 Feb.2007) and discretion should have been exercised regarding break in leave.

Thanks a lot jami telling some postive comments on my case. Do you know any simliar case happened in past and applicant win through judicial review might it will give me strong help in my JR. as argued with HOMEOFFICE

[jami]

Where any judicial review is accepted by the department than usually the principal laid down by court is applied by UKBA to all similarly placed cases whether they were party or not. Example is JR on HSMP/ILR.
No such JR on such a gap is in my knowledge.

[dramit]

Dear Jami

would much appreciate your help on this.
I am due to apply for ILR in Nov 2011

I am doctor working in NHS continuously since Feb 2006. was on permit free training visa. then on HSMP since Dec 2006, got Tier 1 General in Dec2008 till Dec 2011. I will be completing 5 years in Dec 2011 (HSMP+ Tier 1 Visa) so I will apply for ILR in Nov 2011.

I have total absences 190 during qualifying period so far. no break in job, continuos NHS paid work. all 190 days absence in paid annual leave(holidays). will this be a problem as its above 180, however guidance says the paid annual leave should be disregarded. not clear on this.kindly help.many thanks

Also, on one occasion i went for annual leave for Brothers marriage, on other occasion wife's grandfather died, above absences includes these leave periods, would it be appropriate to attach copy of brothers marriage certificate and death certificate for wife's grandad?

[kite7]

Hi Jami,

I appreciate all the advice you have given on this subject. I thought my case was simple but a few immigration consultants have told me otherwise, so your advice would be useful.

I have been outside the UK for 220 days excluding my business travel. I have been employed on a work permit and then on my tier 1 for my entire 5 years in the UK except for 2 days in the middle.

All of my 220 days of leave was taken on weekend trips while employed or on annual paid leave. Of these 152 days were annual paid leave (incl. weekends) although this includes one trip of 23 days, and 2 trips of 16 days each.

1. Based on the guidance that short absences on annual paid leave should be disregarded, what evidence do I need to prove that this was annual paid leave?

2. Do I need to exclude the weekends from the annual paid leave calculation?

Also, due to this situation, is it best I go via a lawyer or is it "safe" for me to go on my own to the PEO with a high chance of getting my ILR?

Many thanks.

[vinny]

All of my 220 days of leave was taken on weekend

Count only whole days when absent from the UK.

[jami]

kite7,

1. Employer letter is best evidence of paid leave along with salary slip of the relevant period indicating same salary when leave was not taken.

2. Weekend can not be excluded from absences calculation or from paid leaves. All the absences are to listed even of one/two day weekends. All weekend tour for which leave was taken or not would be ignored by case worker as per UKBA practice.

As per my opinion your is a very straight forward case fit for same day service at PEO. No need to engage any lawyer.

As per Nationality Law/Guidance day of departure from UK and day of arriving back is not calculated towards UK absence. This is the concept of whole day and should be applicable to ILR as well.

[kite7]

Jami - many thanks for your msg. In that case, I will make an appointment and visit the PEO myself.

[dramit]

Dear Jami

would much appreciate your help on this.
I am due to apply for ILR in Nov 2011

I am doctor working in NHS continuously since Feb 2006. was on permit free training visa. then on HSMP since Dec 2006, got Tier 1 General in Dec2008 till Dec 2011. I will be completing 5 years in Dec 2011 (HSMP+ Tier 1 Visa) so I will apply for ILR in Nov 2011.

I have total absences 190 during qualifying period so far. no break in job, continuos NHS paid work. all 190 days absence in paid annual leave(holidays). will this be a problem as its above 180, however guidance says the paid annual leave should be disregarded. not clear on this.kindly help.many thanks

Also, on one occasion i went for annual leave for Brothers marriage, on other occasion wife's grandfather died, above absences includes these leave periods, would it be appropriate to attach copy of brothers marriage certificate and death certificate for wife's grandad?

[jami]

dramit

My understanding is that apart from job/business related absences and annual paid leaves consistant with terms of employment the other absences (over & above foregoing) should ordinarily not exceed 3 months at a time and 6 months over all in a period of 5 years.

All of your absences were paid leave hence absences are no issue in your case. Employer letter is sufficent just mentioning the dates and there is no need of any further document.

[dramit]

thanks Jami for the advise.much appreciated!

[ITGraduate]

Dear Jami,

I usually get an email when someone replies to my post. I didn't receive any notification this time around when you replied to my post.

I would like to thank you for your response on 13th July. Many thanks

I seen on your letter to home office that you are a solicitor, do you have any website or any office address? do you provide immigration advise?

staffordjafar