ILR Absences - UKBA clarification about conflict

[dejavu]

Hi Jami,

thanks for your valuable post.

I emailed UKBA Oct 2011 and got the below response
=================================================
IND Public Enquiries UKBApublicenquiries@ukba.gsi.gov.uk

5/10/11

to me

Dear Sir/Madam,

Thank you for your enquiry.

Please be advised as explained by my colleagues below that one of the main requirements relating to settlement on the basis of Work Permit Employment is that the applicant has spent a continuous period of five 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.

The above is the correct information and we are unable to assist you further with the same enquiry.

If you have an enquiry of another nature we will reply to your enquiry.

Yours faithfully,

Jas Patel

Immigration Group
UK Border Agency
==============================================

This leads me to believe that one is entitled to be out of the country for 180 days in 5 years EXCLUDING paid annual leave and business trips.

Is it correct paid annual leaves are disregarded/discounted?

I am absent for 249 days , 112 days are annual leave, 7 days are business trips, does that mean my total days of absences is 130 days?

Thanks in advance.


===============================================

I did more research on whatdotheyknow.com and to my surprise one of UKBA's replies stated that annual leaves can't be disregarded:


10 January 2012
Dear Kirsty,

Thank you for your request for information about British Immigration law. Your request has been treated as a routine enquiry, rather than under the Freedom of Information Act 2000, as it the sort of request that we regularly deal with as part of our normal business.

The section of guidance to which you refer has now been modernised and can be found at the below link:

www.ukba.homeoffice.gov.uk/sitecontent/d...

I can confirm that the 180 days does include weekends, annual leave entitlement and public holidays.

I hope this answers your question.

UK Border Agency Ops Policy

[dejavu]

lynz, I have checked with UKBA before and Ive been told weekends and public holidays are included.

staffordjafar, are there any published guideline on excluding dates in and out (stamped date on passport)? Do we need to provide evidences such as boarding pass..... So far I have counted them in but not sure if thats the right way to present absences days. Many thanks.

[ITGraduate]

lynz, I have checked with UKBA before and Ive been told weekends and public holidays are included.

staffordjafar, are there any published guideline on excluding dates in and out (stamped date on passport)? Do we need to provide evidences such as boarding pass..... So far I have counted them in but not sure if thats the right way to present absences days. Many thanks.

Hi dejavu,

I'm sure the day in and day out of country is excluded while calculating the number of days outside UK. However I dont have any guidelines to prove this. Many seniors and moderators have said this time and time again on this forum.

secondly, you dont need your boarding passes to prove this. Make sure you put in all the dates of your travel on your SET(O) application form. Some people even put the page numbers of their immigrations stamps. This is more than enough .

For More clarity on this wait for seniors to respond

Thanks

[dejavu]

hi staffordjafar, thanks for your reply! yup I have checked with UKBA by calling and they told me the same thing as in/out of UK stamps are not counted.

But I am still unclear as I have done lots of weekend trips (city breaks to Europe). I fly out Sat morning, fly back Sunday night. How many days would that be? 0? 1? 2?

Also if there are no uk exit stamps can i use enter stamps of the country I visited as proof?

Thanks, Yibo

[ITGraduate]

hi staffordjafar, thanks for your reply! yup I have checked with UKBA by calling and they told me the same thing as in/out of UK stamps are not counted.

But I am still unclear as I have done lots of weekend trips (city breaks to Europe). I fly out Sat morning, fly back Sunday night. How many days would that be? 0? 1? 2?

Also if there are no uk exit stamps can i use enter stamps of the country I visited as proof?

Thanks, Yibo

Yibo,

Going out sat night - is not counted

coming back sunday night before 12 midnight - not counted too

so its ZERO days

Good luck

[lynz]

thanks a lot staffordjafar and dejavu for your replies. It has certainly helped with my understanding and help me make a decision for my application.

[dejavu]

no worries lynz!

I got more clarification. sounds like we need to count annual leaves in to be on the safe side.

=================================================

Dear Sir,



The Immigration Rules state that in order to be eligible to apply for Indefinite Leave to Remain, you must have spent a continuous period of 5 years lawfully in the UK. UK Border Agency however does allow for some discretion in the calculation of absences from the UK. Modernised guidance explains when and how his discretion can be exercised:



When assessing if an applicant has met the criteria for five years continuous residence in the UK, short absences abroad may be disregarded, provided the applicant has clearly continued to be based in the UK. For example:



• holidays (consistent with annual paid leave), or

• short business trips (consistent with maintaining employment or self-employment in the UK).



No single absence abroad must be for more than three months at a time and any periods of long absence must not total more than six months. If the absence is work related, evidence will need to be submitted to show that it would have serious implications for the employer or business if the travel had not been undertaken.



The guidance has not changed, but presented in a different format. Essentially, any absence related to paid annual leave or business can be discounted provided they do not exceed the permitted limit of 3 months for a single absence, and 180 calendar days (including bank holidays and weekends) in total over the 5 year period.



I would like to remind you that the Immigration rules do not allow for any absence whatsoever. The above policy was drafted to accommodate reasonable absences throughout the 5 year period, on the assumption that people may want to spend their annual holidays outside of the UK, or that their business may require them to work outside of the UK for short periods of time.



I trust that this answers your question.



UK Border Agency – Settlement Ops Polic

[ukswus]

no worries lynz!

I got more clarification. sounds like we need to count annual leaves in to be on the safe side.

=================================================

Dear Sir,



The Immigration Rules state that in order to be eligible to apply for Indefinite Leave to Remain, you must have spent a continuous period of 5 years lawfully in the UK. UK Border Agency however does allow for some discretion in the calculation of absences from the UK. Modernised guidance explains when and how his discretion can be exercised:



When assessing if an applicant has met the criteria for five years continuous residence in the UK, short absences abroad may be disregarded, provided the applicant has clearly continued to be based in the UK. For example:



• holidays (consistent with annual paid leave), or

• short business trips (consistent with maintaining employment or self-employment in the UK).



No single absence abroad must be for more than three months at a time and any periods of long absence must not total more than six months. If the absence is work related, evidence will need to be submitted to show that it would have serious implications for the employer or business if the travel had not been undertaken.



The guidance has not changed, but presented in a different format. Essentially, any absence related to paid annual leave or business can be discounted provided they do not exceed the permitted limit of 3 months for a single absence, and 180 calendar days (including bank holidays and weekends) in total over the 5 year period.



I would like to remind you that the Immigration rules do not allow for any absence whatsoever. The above policy was drafted to accommodate reasonable absences throughout the 5 year period, on the assumption that people may want to spend their annual holidays outside of the UK, or that their business may require them to work outside of the UK for short periods of time.



I trust that this answers your question.



UK Border Agency – Settlement Ops Polic

Now, this is ridiculous. 180 days is NOTHING. I regualrly travel for 2-3 days a month in relation to work. This is 30-40 days a year (or 150-200 days over 5 years). So, according to UKBA, I cannot visit my elderly parents in my home country at all, nor can I travel on short vacations abroad?

I am really gettign angry. I am going to pay more than 100,000 pounds in taxes over 5 years, pay exorbitant, constantly rising fees. And at the end of th day, they may deny my ILR, based on discretionary interpretation of the guidance by the case worker?

And what happened to the numerous cases of people getting ILR with 300+, 400+, or even greater total absences? In the past, business travel and annual holidays were disregarded, but not anymore?

[ukswus]

Essentially, any absence related to paid annual leave or business can be discounted provided they do not exceed the permitted limit of 3 months for a single absence, and 180 calendar days (including bank holidays and weekends) in total over the 5 year period.

I would like to remind you that the Immigration rules do not allow for any absence whatsoever. The above policy was drafted to accommodate reasonable absences throughout the 5 year period, on the assumption that people may want to spend their annual holidays outside of the UK, or that their business may require them to work outside of the UK for short periods of time.

I just thought more about this letter- it looks really strange. It creates the impression that ILR is only given when people are away on business and paid vacations (provided the total number of days does not exceed 180 days). But if one has even a signel day of unpaid leave abroad, then the ILR may be refused (which doesn't seem to be the current practice).

Can knowledgeable peopl comment on this?

[dejavu]

hey ukswus, i share the same thoughts. As I feel the rules stayed the same but the interpretation is stricter. If you refer back to the Oct 2011 email comparing to the current one, there is clearly a tone change. so I am going to assume all my paid leaves are included in the 180 days on the safe side.

when I rang UKBA I was told that if I apply for ILR in the future, I should go by the rule at that point in time, and the rule can change at any time (whenever UKBA wants). That would be pretty silly if I have planned for 5 years to stick with the prescribed days and they suddently change rules..... lets pray not....


To staffordjafar, thanks again, I did get a response when I rang up UKBA, that only full absence days are counted. That supports your view of 'zero day' if flying out Sat morning coming back Sun night. But UKBA told me all trips must be listed. And there is no limit on how many times one is allowed to go aboard.....

[jaskiratbaweja]

A reply from Jami and other experienced members will be helpful. What do you make of the above posts by Dejavu. It looks to me the guideline has always been the same and absences for business and paid leave can be ignored.

In my case, I have tier 1(G), applying for ILR soon. I have 216 Business trip related absences but no absence longer then 90 days. I have got letters from employers regarding these.

I have total of 179 personal absences out of which 62 is unpaid and the longest is 60 days. I have collected proof of continued links such as Council Tax statements, Rental/Tenancy agreement, letter from wife's employer that she has been based in UK etc.

Jami and other seniors,Your opinion will be highly valued. Many thanks

[dejavu]

jask....when i rang up UKBA and asked what evidences we need to provide to prove 'the applicant has clearly continued to be based in the UK'. (see page 3 of ilr-calculating-continuous.pdf) The response was there is nothing required its all up to the caseworker. So all down to luck I feel


I wish for ILR discretion on absences there could be clearer guildlines like how there is for naturalisation.... (see link)
http://www.ind.homeoffice.gov.uk/britis ... cesfromuk/
Jami is an expert on influencing policy maker to review/reform rules... perhaps we could do something.... but would it be to our favour? If things are stated clearer perhaps it would cause more harm :p

[ukswus]

jask....when i rang up UKBA and asked what evidences we need to provide to prove 'the applicant has clearly continued to be based in the UK'. (see page 3 of ilr-calculating-continuous.pdf) The response was there is nothing required its all up to the caseworker. So all down to luck I feel

This attitude is plain terrible. So, at first they create an impression (backed up by thousands of previous decisions) that business trips and paid leave can be disregarded, so you plan accordingly (otherwise you would choose a different job, spend less time vacationing abroad etc). Then suddenly they find it acceptable to "change the tone", and pretend as if all previous expectations are completely unjustified.

They treat us like dirt (I mean, how can they justify increasing the visa fees for Tier 1 visa holders from 1,300 o 1,800, when all other categories were left largely unouched??). In the near future, a family of 4 may pay 7,200 pounds just to get their tier 1 visa extended (as they promised to increase dependent's fees to the main applicant level). But at least we are paying it in the knowledge that as long as we abide by the rules, we will get ILR. But now they are saying that all this sacrafice may have been for nothing?

[jaskiratbaweja]

Guys keep heart. In last 2 months I have not seen anybody with absences greater than 180 refused for ILR as long as they have proper proof of business trips and documentation to prove that they have been based here. The caseworkers do aplply discretion and am sure are better informed than Ops poliy guys.

[ozgrant]

I've been reading about absences and the rules on this board for some time. It certainly seems to be one of the requirements causing most angst for applicants. I too have a question. I know that days outside the UK for business travel or holidays consistent with paid leave are not normally included in the 180 days. However, I'm still not clear on the following.

Scenario 1: You took a short city break for leisure. You leave on Friday night and come back Monday morning. You did not need to take any annual leave as it was weekend travel, however, you were employed and being paid during the month of the travel. Is this "paid leave" or "unpaid leave"?

Scenario 2: You took 5 days annual leave (paid) and depart Monday morning and return the following Monday morning. This includes 2 weekend days. So what is counted in the 180 day rule. None of it, or 2 days (as of the 6, 2 were weekends).

It's no wonder there are so many questions on this topic.

Thanks in advance for responses from any senior members.

[sunil.suneel]

I emailed UKBA Oct 2011 and got the below response
=================================================
IND Public Enquiries UKBApublicenquiries@ukba.gsi.gov.uk

5/10/11

to me

Dear Sir/Madam,

Thank you for your enquiry.

Please be advised as explained by my colleagues below that one of the main requirements relating to settlement on the basis of Work Permit Employment is that the applicant has spent a continuous period of five 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.

The above is the correct information and we are unable to assist you further with the same enquiry.

If you have an enquiry of another nature we will reply to your enquiry.

Yours faithfully,

Jas Patel

Immigration Group
UK Border Agency
==============================================

This leads me to believe that one is entitled to be out of the country for 180 days in 5 years EXCLUDING paid annual leave and business trips.

Is it correct paid annual leaves are disregarded/discounted?

I am absent for 249 days , 112 days are annual leave, 7 days are business trips, does that mean my total days of absences is 130 days?

Thanks in advance.

[carlos2011]

I think what Jas Patel, UKBA Public Enquiries, says in the e-mail dated 5/10/11 is correct. This is what Jas said:

[quote]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. [/quote]

So the UKBA officer would consider all the trips you have taken, which you have disclosed in the SET(O) form. You would explain what these trips were for. If they were paid annual leave or business trips then the officer may simply not consider them as breaking the continuity of your residence. If there are any [b]other[/b] trips (eg unpaid leave, or long trips, or trips the officer has decided [b]not[/b] to discount) then none of these [b]other[/b] trips should be more than three months long, and the total of [b]other[/b] trips should not add up to more than 6 months over the 5 years.

I think this is clear in the guidance.

[url]http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary[/url]

Note that that guidance first says that short absences abroad may be discounted, provided continuous residence has been maintained. It gives examples of short absences that are consistent with continuous residence, namely holidays consistent with annual leave and short business trips. It then explains the discretion where there are "longer absences". It says: "No single absence abroad must be for more than three months at a time and any periods of long absence must not total more than six months." It talks about "any periods of long absence", which I think is as opposed to the "short absences", which can be discounted.

I think anyone applying a 180 day upper limit to short absences is reading things into the guidance that are not there. There is a six month limit for long absences [b]beyond[/b] all your short annual leave breaks and business trips. However, they are clearly interested in knowing more about your absences if you have been away more than 6 months in 5 years, because if you have been away that long then you are someone who [b]may have[/b] broken continuity. That is the point of question D3 on the SET(O) form. You shouldn't have broken continuity if discounting all your short annual leave dates and business trips brings you back under 6 months.

[sunil.suneel]

Carlos

As per you analysis:

1) All short absences for Business and Paid leaves should be discounted.
2) It is OK have more than 3 months absence but not more than 6 months. And this 6 months in not the total including business and paid leaves ? is tat how you see ?

[gaurav_lohiya]

Hi,

I am about to complete 6 years in UK. I have a total 325 days of UK absences out of which 176 were for business reasons.

I was outside UK for more than 90 days at a stretch (176 days to be exact) due to work-related reasons during my 5th year and I was not on UK payroll during that time. But, I was employed at the same company's offshore office. My employer can provide a letter stating that I was continued to be employed by them but working at offshore for those 176 days.

Also, I was outside UK for about 149 days on Paid annual leave in total during my 6 years but none of them is more than 90 days at a stretch.

After my longer absence of 176 days from UK, I am about to complete 1 year in UK now during which there are only 25 absences on paid annual leave.

Please let me know if my case is eligible for ILR or not and whether I should apply in person (PEO) or by post.

Thanks.

[carlos2011]

Carlos

As per you analysis:

1) All short absences for Business and Paid leaves should be discounted.
2) It is OK have more than 3 months absence but not more than 6 months. And this 6 months in not the total including business and paid leaves ? is tat how you see ?

sunil.suneel - I'm sorry I didn't come back and see your reply. I think you're almost right:
1) All short absences for (for example) business and paid leave may be disregarded, provided the applicant has clearly continued to be based in the UK. There is no set limit to the number of short absences that may be disregarded.
2) Longer absences that don't fit within (1) break continuity, but there is a discretion to ignore continuity if the longer absences are for the compelling reasons given and the longer absences do not total more than 6 months, or more than 3 months on any one trip.

If you read the guidance clearly it makes sense and the 6 month limit only applies to the longer absences. Hopefully the decision maker you get understands it.

[gaurav_lohiya]

Hi,

Can anyone please respond to my question asked on Jun 20, 2012 1:06 pm about the UK absences?

Thanks,
Gaurav

[chosenaik]

Being away for more than 90 days and NOT being on UK payroll makes this risky. However if you provide ample proof that you had continuing ties with UK (e.g. council tax bills utility bills, mobile phone bills, moprtgage / rental payments) then the case worker can use their discretion and possibly approve your ILR. Not one can say with 100% surity though.

[UKIndian123]

Hi,

Could you please help me with my case:

I took 66 unpaid leaves and 93 paid leaves so far and I will complete 5 years in UK on 24th Nov 2012. Its all fine so far. The issue is, I am a IT contractor (self employed) and now I got a contract job in Denmark for 6 months starting July 2nd. This will amount to another 5 months out of UK by the time I apply for ILR in Dec this year.

Will it be OK if I get a letter from my own company (because I am self employed) and my recruitment agency in UK and client in Denmark that I am out on job? I can also come to UK once every month on weekends to avoid continuous absense. Will this be OK for my ILR?

Also, should I provide letter from my employers stating my paid leave I took so far?

Thank you for your help.

[UKIndian123]

please somebody reply to my above query. Any help appreciated. Thank you

[ohrik]

Hi,
I have been following this forum inside out since the last 15days reading everything I can about ILR. However am still in doubt about my case.

- I first came to UK as student in Sept 2003.
- Completed graduation in July 2007 with a 1st class degree (Student visa expiry date was 31st Oct 2007)
- My first employer (A reputed Automotive supplier) applied for a tier2 visa on 30th October 2007.
- This visa got rejected on grounds of insufficient evidence on 23rd Nov 2007.
- We then filed the IGS visa (Which i was still eligible for) through an immigration solicitor on 30th Nov 2007; instead of appealing against tier2 application.
- The IGS application was then refused on 6th Feb 2008 on the grounds no Leave to remain available at the time of application.
- My employment was terminated following refusal of the tier 2 work permit in Nov 2007 itself.
- I then took a voluntary departure to my home country with appropriate case from the solicitor, letter from my employer to hire me if I got the visa through and some compensation on 2nd March 2008
- I filed for the IGS visa from my home country on 5th March 2008 and was granted the IGS visa on 12th March 2012.
- I then traveled back to UK on 10th April 2008.
- I have since been on the post-study visa and now on tier-2 work permit since March 2010 with a new employer.
- I will complete 10 years stay in UK on 24th Sept 2013.
- What are my chances to get an ILR based on the circumstances above.
- The calculation for time spent outside the UK is well within the specified range of 540 days.

Some expert advise would be extremely useful at this stage.


Many thanks

K