URGENT help needed: 6 months assignment abroad

[leeloy88]

Hi everyone,

Please take a look at the below and all comments suggestions guidance will be so so much appreciated.

I will be working in the UK under tier 2 for 5 years in 2015. Recently I got offered a short term assignment in India from my current employer for 6 months.

I spoke to a immigration consultant and they said my chance to get ILR in 2015 is very slim .

I'm still UK based, my employer is a UK company, I'm still on uk pay roll pay tax and NI as normal, my salary will go to my UK bank acc. However I'm not planning to keep my uk tenancy during this 6 months as I don't want to pay crazy rent and not living in it.

I take around 25 days (inc. weekends) a year on holiday abroad, so that will be 150 days in 5 years, this is part of my paid annual leave.

Is it true that my chance to get the ILR is very slim. I will take care of the 90 days rule by coming back and work in the UK office for 1 week so that my short term assignment of 6 months will be come 2 long trips of less than 90 days away from the UK each. And the employer will produce letter confirming the 6 months is business related, however to be honest, it's not business critical in terms of if I don't go the company will crash or something like that.

1) Please can you give me some advices and guidance. Is there anything I can do to still take the assignment but not totally jeopardise my chance of getting ILR in 2015 and have the clock reset due to this business assignment.

2) Is there anything else I should do in addition to come back to UK before it reaches the 90days rule to decrease the impact this assignment would have on damaging my chance of getting ILR?

Really hoping someone will help me on this matter. I really appreciate it.

[niteshj]

officially I would say the answer is - you will be fine!
search for posts made by me where I have analysed several people that got ILR even after LONG LONG time away (for work and annual leave)

in practice I think you might be making things hard for yourself. Unfortunately, I think the 180 day rule is the MOST confusing one because the official stance is as above (1st paragraph) ... but a lot is then left to CW discretion..

[vinny]

See also settlement and continuous period.

[leeloy88]

See also settlement and continuous period.

Thanks vinny, I have done the homework and have read all the official documents/guides from ukba that's why it makes me worried. As they say no single trip should be > 90 days, this can be taken care of as I can come back in between the 6 months so each trip won't exceed 90 days. However, the 180 days rule worries me. Personal leave will be close to 180 days but won't exceed, however, this business assignment alone is 180 days. So in otal business + personal will be around 350 days in 5 years.

[leeloy88]

officially I would say the answer is - you will be fine!
search for posts made by me where I have analysed several people that got ILR even after LONG LONG time away (for work and annual leave)

in practice I think you might be making things hard for yourself. Unfortunately, I think the 180 day rule is the MOST confusing one because the official stance is as above (1st paragraph) ... but a lot is then left to CW discretion..

Thanks neteshj. I will make sure I read your previous posts analysing cases where people get ILR even with long perio of time away from the UK.

I have been looking on immigration board for a while and found a lot of cases people even get ILR with 700, 800 days outside the UK. However, the comment from the consultant who I spoke to really worry me.

Sorry for keep repeating, so in your opinion, with my salary being paid in the uk, with company letter confirming the 6 mths is business related and accommodation in India is paid by company etc. assuming other factors will abide with ukba rule, I shoul be fine right? Ofcourse I understand it's up to the discretion of the CW.

Is there any precaution I should pay attention to or prepare now etc to support my case when I apply (2015). Is it necessary I should keep a tenancy agreement during my time away (and pay rent during this 6 months). I wasn't planning to do so buy if I need to I can. Other than that I keep my uk bank acc as normal and my phone contract etc.

Thank you so much for your help.

[manci]

add this to your bibliography:
http://www.bailii.org/uk/cases/UKUT/IAC ... geria.html
but note that although fairly recent (October 2010) it pre-dates the current guidance on the continuous period in which the word "short" has been added in front of "business trips" on 20 July 2011:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[vinny]

12. The appeal is allowed under paragraph 134 of the Immigration Rules.

Unfortunately, 134 is not applicable to Tier 2.

there is currently no guidance to be had from the Immigration Directorates’ Instructions.

Moreover, as rightly pointed out, there is current guidance.

[leeloy88]

add this to your bibliography:
http://www.bailii.org/uk/cases/UKUT/IAC ... geria.html
but note that although fairly recent (October 2010) it pre-dates the current guidance on the continuous period in which the word "short" has been added in front of "business trips" on 20 July 2011:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Appeal is the last resort, I dont want to have to get to that stage .

[leeloy88]

12. The appeal is allowed under paragraph 134 of the Immigration Rules.

Unfortunately, 134 is not applicable to Tier 2.

there is currently no guidance to be had from the Immigration Directorates’ Instructions.

Moreover, as rightly pointed out, there is current guidance.

Thanks, I have read that too. However I have seen people on this board got ILR even with >180 days out of the UK.

I dont mind delaying ILR application for another 6 months to make up for the time away, as long as the clock does not get reset due to this business assignment (which will mean instead of applying in late 2015 beginning of 2016, I will have to wait until end of 2017 begining of 2018).

Where continuous residence has been broken, periods may be aggregated or shortfalls disregarded only with the approval of a senior executive officer (SEO) or Grade 7.

Thoughts?

I'm getting more and more worried now .

[vinny]

It's at the caseworker's discretion. Therefore, the caseworker may be the only one who will know the answer.

[leeloy88]

It's at the caseworker's discretion. Therefore, the caseworker may be the only one who will know the answer.

Agreed. I guess no one can say anything for certain. But I was hoping through experience of being seniors/mods, members can advise and give some suggestions. But thanks anyways, appreciate the effort.

[goldfish]

The way I understand it is that you don't get the option to just stay 6 months extra to make up for the 2 x 3 month absences. You have to wait until in the past 5 years you have had 180 days out (or rely on caseworker discretion). The extra time you have to wait for ILR depends on when during the 5 years the longer absences occurred.

Example 1: visa issued in Jan 2007, enter UK, then 2 x 3 month absences Jan - Mar 2007 & Apr - Jun 2007 plus other absences e.g. holidays of 180 days. If you apply for ILR in Jan 2012 you will have had 350+ days out during the 5 year period. If you apply in Jun 2012, you will only have your 180 days holidays in the previous 5 years. You only need to wait 6 months.
Example 2: visa issued Jan 2007, enter UK, then 2 x 3 month absences in Jan 2011 - Mar 2011 & Apr 2011 - Jun 2011. If you apply for ILR in Jan 2012, you will again have 350+ days out during the 5 year period. If you apply in Jun 2012, you will still have had 350+ days out, same with the following years. Only in Jun 2016 would the 2 x 3 month absence be earlier than the 5 years prior to ILR.

Of course, you can apply earlier and rely on the caseworker's discretion / appeal process. It seems that work-related absences are more likely to be accepted where there are compelling reasons for you to be away (I saw an example on the forum recently where someone was the only person who could speak the language in that country, so they were the only possible person who could do the work). Some people seem to be successful even with longer absences if they pursue the full appeal process.

I think you are right to be cautious because the trend is towards more restrictive requirements and a less flexible interpretation of the rules. Only you can decide whether it is worth it to do the work outside UK taking into account the potential issues for ILR. If you do think you will have to be outside the UK, I would draft the letter you will want your employer to sign (explaining the compelling reasons for you to be away) and ask them to confirm they will sign it, before you agree to go.

[leeloy88]

The way I understand it is that you don't get the option to just stay 6 months extra to make up for the 2 x 3 month absences. You have to wait until in the past 5 years you have had 180 days out (or rely on caseworker discretion). The extra time you have to wait for ILR depends on when during the 5 years the longer absences occurred.

Example 1: visa issued in Jan 2007, enter UK, then 2 x 3 month absences Jan - Mar 2007 & Apr - Jun 2007 plus other absences e.g. holidays of 180 days. If you apply for ILR in Jan 2012 you will have had 350+ days out during the 5 year period. If you apply in Jun 2012, you will only have your 180 days holidays in the previous 5 years. You only need to wait 6 months.
Example 2: visa issued Jan 2007, enter UK, then 2 x 3 month absences in Jan 2011 - Mar 2011 & Apr 2011 - Jun 2011. If you apply for ILR in Jan 2012, you will again have 350+ days out during the 5 year period. If you apply in Jun 2012, you will still have had 350+ days out, same with the following years. Only in Jun 2016 would the 2 x 3 month absence be earlier than the 5 years prior to ILR.

Of course, you can apply earlier and rely on the caseworker's discretion / appeal process. It seems that work-related absences are more likely to be accepted where there are compelling reasons for you to be away (I saw an example on the forum recently where someone was the only person who could speak the language in that country, so they were the only possible person who could do the work). Some people seem to be successful even with longer absences if they pursue the full appeal process.

I think you are right to be cautious because the trend is towards more restrictive requirements and a less flexible interpretation of the rules. Only you can decide whether it is worth it to do the work outside UK taking into account the potential issues for ILR. If you do think you will have to be outside the UK, I would draft the letter you will want your employer to sign (explaining the compelling reasons for you to be away) and ask them to confirm they will sign it, before you agree to go.

Thanks do much for such detailed answer. I have already spoken to my employer and have listed 3 points they need to put in the letter:
- the trip is due to business requirement
- in still under uk payroll, pay tax and NI while abroad
- accommodation in India is covered by the firm.

How are they going to elaborate on the compelling reason, I'm not sure as in fact there is no such compelling reason for me to go. I'm very junior in the big firm. If I don't go, sure someone else would be dying to go. They can confirm that it was due to business requirement and needs and other things I've listed above. But thats pretty much about it.

If I have to go through the appeal process etc, I'm up for it too, if I know I have the chance to win.