ILR - Tier 1 (General) 180 days absence new rule 13th Dec.

[kumardar]

According to the refusal for galathea, it looks like they may take any 12 consecutive months(backward from application date) to calculate absences.
If application date is 11 November 2012 then consecutive 12-months can be:
Year 1 11 November 2012 to 10 November 2011
Year 2 11 November 2011 to 10 November 2010
Year 3 11 November 2010 to 10 November 2009
Year 4 11 November 2009 to 10 November 2008
Year 5 11 November 2008 to 10 November 2007

or it can be any 12 month periods for example:

Year 1 11 October 2012 to 10 October 2011
Year 2 11 October 2011 to 10 October 2010
Year 3 11 October 2010 to 10 October 2009
Year 4 11 October 2009 to 10 October 2008
Year 5 11 October 2008 to 10 November 2007

Am I correct? If this is correct then the rules seems to be more strict compared to previous rules.


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galathea wrote:
I was applying before new rules came in force so didn't calculate anything. But they applied new rules to me, and calculated the absences over 12 months selecting those months so that it would maximize my absences - to go above 180 days (their method was not tied neither to the calendar (Jan to Jan) nor to my application date (Apr to Apr)). Can't quote particular periods as the file is on my work computer.

[cs95tdg]

According to the refusal for galathea, it looks like they may take any 12 consecutive months(backward from application date) to calculate absences.
If application date is 11 November 2012 then consecutive 12-months can be:
Year 1 11 November 2012 to 10 November 2011
Year 2 11 November 2011 to 10 November 2010
Year 3 11 November 2010 to 10 November 2009
Year 4 11 November 2009 to 10 November 2008
Year 5 11 November 2008 to 10 November 2007

or it can be any 12 month periods for example:

Year 1 11 October 2012 to 10 October 2011
Year 2 11 October 2011 to 10 October 2010
Year 3 11 October 2010 to 10 October 2009
Year 4 11 October 2009 to 10 October 2008
Year 5 11 October 2008 to 10 November 2007

Am I correct? If this is correct then the rules seems to be more strict compared to previous rules.


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galathea wrote:
I was applying before new rules came in force so didn't calculate anything. But they applied new rules to me, and calculated the absences over 12 months selecting those months so that it would maximize my absences - to go above 180 days (their method was not tied neither to the calendar (Jan to Jan) nor to my application date (Apr to Apr)). Can't quote particular periods as the file is on my work computer.

The case you are referring to "galathea" was one where the application was submitted before the new rules came into effect and a decision provided after. It would be incorrect to make conclusions on how it was assessed with the limited information provided or the circumstances around that application.

You must go by the rules as they are stated today when calculating your absences & the rules say calculate them counting back from your application date. So that's what you must do. In your example if you were applying on 11 November 2012 then the first set of 12 consecutive month periods would be correct. Not the second set.

[cs95tdg]

Hi cs95tdg / Senior members,

This is my details

Work Permit Stamped : 14 May 2007
Date of entry to UK : 09 Sep 2007
Tier 1 (General) Stamped : 12 June 2008
Tier 1 (General) Extension: 21 June 2011

Below are my absences from UK for the 5 year period from the date of my application (assuming that I apply by PEO in March 2013).

Year 1: 20 March 2013 - 21 March 2012 = 38 days - UK Paid annual leave - Tier 1 (General)
Year 2: 20 March 2012 - 21 March 2011 = 28 days - UK Paid annual leave - Tier 1 (General)
Year 3: 20 March 2011 - 21 March 2010 = 134 days - Paid in India - Tier 1 (General) 50 consecutive + 84 days consecutive.
Year 4: 20 March 2010 - 21 March 2009 = 87 days - Paid in India - Tier 1 (General)
Year 5: 20 March 2009 - 21 March 2008 = 30 days - UK Paid annual leave - Tier 1 (General)

I was sent back to India by my company in 2010 and was paid in INR. Quit the company in Aug 2010 and joined UK company in Sep 2010 (with an unpaid gap of 12 days).

See below dates of exit and entry to UK (dates inclusive). I have more than 180 days absence in year 2010, however if I take absences from the date of application then both 180 days and 90 days consecutive absences are not breached.

Exit : Entry
02 Sep 2012 to 16 Sep 2012 - 15 days (paid annual leave)
21 April 2012 to 13 May 2012 - 23 days (paid annual leave)
25 June 2011 to 22 July 2011 - 28 days (paid annual leave)
17 July 2010 to 04 Sep 2010 - 50 days (paid in india)
04 Jan 2010 to 12 June 2010 - 160 days (paid in india)
17 July 2009 to 27 July 2009 - 11 days (paid annual leave)
27 Nov 2008 to 26 Dec 2008 - 30 days (paid annual leave)

I have a letter from ex-employer that in 2010 I was working in offshore (India) due to 'project requirements'. Also the letter confirms my UK paid annual leaves.

1) Do I still have to show any letter for my absence in 2010 - 'compelling or compassionate reasons'? All my absences were while i was on Tier 1 Visa.

2) For question 6.2 from SET(O) form - "Since then have you had any absences from the UK? If yes, give the dates you left
and returned to the UK and the reason for the absence in the spaces below."

Is it ok to mention "Work related absence" for my absences during 2010? For all others I am going to mention "Annual Leave"

While your absences do come within the 180 day annual threshold, you do appear to have a lot of absences (totally over 300 days). The 160 day single absence where you were not paid in the UK would be up for scruitinity IMHO. As yet I haven't seen an application approval posted on this forum, where there have been large absences which when taken together would be considered a large number, but when split across the 12 consecutive month periods is not so large. Therefore it's not an area that is clear for me to comment on at the moment.
1) Whether or not you need a personal letter & evidence for serious compelling or compassionate reasons would really depend on whether those absences during 2010 were due to such a reason. Work/Business travel or Holidays do not fall under that category.
2) If that was the reason, then yes, do mention that as the reason.

[kumardar]

The below statement on the UKBA site is completely misleading as it says any 12 consecutive months in 5 year period.- http://www.ukba.homeoffice.gov.uk/visas ... ettlement/

During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months.

Also the below statement from guidance says its any of the 5, 2, 3, or 4 consecutive 12 month periods (don't know what is the reason they have mentioned 2, 3, or 4)

No more than 180 whole days absence are allowed in any of the five, two, three or four consecutive 12 month periods, preceding the date of the application for indefinite leave to remain (ILR).
==============================

I am worried as my case is similar, I may qualify if its specific 5 years calculated back from application date(as my absences will be divided into 2 years), but if they pick up any 12 consecutive months where I have max absences(above 180) then I will not qualify (unless I have some compassionate reasons)

[kumardar]

According to the immigration rules at ,
http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/

For Tier 1(General) stated under gerneral requirements:

continous period will not be a problem if
the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain;

For Tier 1 (Exception Talent)

The applicant must have spent a continuous period of 5 years lawfully in the UK, with absences from the UK of no more than 180 days in any 12 calendar months during that period, with leave as a Tier 1 (Exceptional Talent) Migrant.

Hence atleast for Tier 1 General it should be 180 days in any of the specific 5 consecutive years counted back from application date as posted by gurus.

[tokarthik]

Please find my details as below.

I will explain my case for applying ILR Period is

Year 1 = 28-Jan-12 27-Jan-13

Year 2 = 28-Jan-11 27-Jan-12

Year 3 = 28-Jan-10 27-Jan-11

Year 4 = 28-Jan-09 27-Jan-10

Year 5 = 29-Jan-08 27-Jan-09



I came to UK through WP then I got applied by own My visa is Tier 1 General(M) on May 07

I went to Indian 03-07-08 and returned back to UK 12-11-08 (130 days),Medical reason I will get the medical certificate .

Out of UK total Days in the last 5 Years

From 3-Jul-08 to 12-Nov-08 medical reason = 133

From 11-Apr-09 to 29-Apr-09 vacation=19

From 20-Nov-09 to 28-Nov-09 vacation=9

From 23-Oct-10 to 1-Nov-10 vacation=10

From 08/09/2011 to 20-Sep-11 vacation=13

From 26/02/2012 to 12/03/2012 vacation=16



Total days out of UK 200 days

Let me know your thought about my case

[cs95tdg]

The below statement on the UKBA site is completely misleading as it says any 12 consecutive months in 5 year period.- http://www.ukba.homeoffice.gov.uk/visas ... ettlement/

During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months.

Also the below statement from guidance says its any of the 5, 2, 3, or 4 consecutive 12 month periods (don't know what is the reason they have mentioned 2, 3, or 4)

1) The first statement is indeed incorrect as they have used the word "any". Note but Immigration rules are what you should comply with and they take precendence over what is published (possibly incorrectly) on any UKBA website pages or guidance notes.

2) There are different qualifying residence periods for different immigration categories, so hence the reason for the rules mentioning "5, 2, 3, or 4". You should take the number of years that apply to the immigration category you will be applying under when calculating your absences.

[cs95tdg]

tokarthik, you may want to list the total number of absences against the 5 years (Year 1, Year 2, Year 3, Year 4, Year 5) in your post, to help other readers understand the total annual absences at a glance to be able to comment.

For the period you were on a WP, you will need to prove that you met the conditions of that WP usually done by providing your WP & P60(s) covering that period.

For the long absence you mention as being due to medical reasons, that would be categoried as an absence due to serious or compelling compassionate reasons, IMHO. Therefore it would need to be supported by a personal letter and evidence.

[vd_ilr]

Finally we have got a reply from UKBA reg question D2.

Dear Sir/Madam,

In the light of the recent changes to the immigration rules, question D2 of the SET(O) form is no longer relevant and will be amended at the next available opportunity.

Kind regards

Ann Woodall |Operational Policy and Rules| Blue zone, 5th Floor|Capital Building |Old Hall St |Liverpool L3 9PP

Link: http://www.whatdotheyknow.com/request/c ... ermited_ab

This would mean question D3 is also invalid. Not sure when they are planning to get the SET(O) form updated.

Still in my case below. Although I am on Tier 1 during all abscences, am not sure what documents should I provide for absences during 2010 (I was working from India).

Work Permit Stamped : 14 May 2007
Date of entry to UK : 09 Sep 2007
Tier 1 (General) Stamped : 12 June 2008
Tier 1 (General) Extension: 21 June 2011

Year 1: 20 March 2013 - 21 March 2012 = 38 days - UK Paid annual leave - Tier 1 (General)
Year 2: 20 March 2012 - 21 March 2011 = 28 days - UK Paid annual leave - Tier 1 (General)
Year 3: 20 March 2011 - 21 March 2010 = 134 days - Paid in India - Tier 1 (General) 50 consecutive + 84 days consecutive.
Year 4: 20 March 2010 - 21 March 2009 = 87 days - Paid in India - Tier 1 (General)
Year 5: 20 March 2009 - 21 March 2008 = 30 days - UK Paid annual leave - Tier 1 (General)

From what I read so far work related absences does not fall under 'compelling/compassionate' reasons. please can someone advise?

[uksettlement]

Thanks for following my FOI request.

As per the rules you do not need to show any proof just one letter from you explaining the absence will suffice.

[tom.tom]

Hi All,

I got my ILR approved today at Solihull PEO.
The docs requested by case worker are as follows,

1. Application form
2. Biometric residence permit
3. Life in the UK pass notification
4. 12 months payslips and bank statements
5. co-habitation proofs ( council tax + joint bank statements )

Many thanks for all the help.

Thanks,
Binny

[uksettlement]

Great! Congrats!

[Shace]

My colleague went to Sri lanka for 6 months on maternity Jan 2012-June 2012 and she came back and applied for ILR in october 2012
and got refused, because of the 180 day rule, she went in person and she managed to explain the the reason for her absence was
due to maternity.
UKBA refused the application and gave her an option to prove her absence was genuine, she got a letter from the
hospital from SL and got her ILR last week, thats after 4 months wait.
I personally believe even though there is a rule on absence it still applied individual basis.

[Gagan1986]

My colleague went to Sri lanka for 6 months on maternity Jan 2012-June 2012 and she came back and applied for ILR in october 2012
and got refused, because of the 180 day rule, she went in person and she managed to explain the the reason for her absence was
due to maternity.
UKBA refused the application and gave her an option to prove her absence was genuine, she got a letter from the
hospital from SL and got her ILR last week, thats after 4 months wait.
I personally believe even though there is a rule on absence it still applied individual basis.

Correct if your absence was more than 180 days in one year, you have to give a reason which is serious and compelling with some support docs(to prove), had she taken those docs with her the first time it wont have been a problem + the change in rules helped get application got approved too