T1 but didn't work the full five years- can I apply for ILR?

[anotheraussie1]

Hi,

Apologies if I'm being a bit dim but I've been trawling through the guidance and it's not clear to me.

I arrived in July 2009 on a Tier1 (General) visa. I have renewed once and assumed I could go for ILR next year. I still meet all the Tier 1 requirements and have never been out of the country for more than 180 days in any year.

However, I have tended to work contracts and go travelling between them. So at the beginning of this year I finished a job, went travelling for 10 weeks, then spent 2 months finding another job.

It's all lawful under Tier1 conditions but can someone please confirm if this is ok for ILR?

Thanks very much,
N

[ScopeD]

However, I have tended to work contracts and go travelling between them. So at the beginning of this year I finished a job, went travelling for 10 weeks, then spent 2 months finding another job.

It's all lawful under Tier1 conditions but can someone please confirm if this is ok for ILR?

The point-based systems requires you to score the necessary points in the relevant areas for you to qualify (Age, Qualifications, Past Earnings, UK Experience plus KOL test). As you meet all the other requirements (and assuming that your earnings are sufficient to score you the required points) I think you should be ok for your ILR application.

[MM12]

As per my understanding of the current situation, if you go overseas as Tier 1 while not employed in the UK, i.e. not for business purposes, annual leave or because your close relative is ill, you'll breach the 5 yrs continuous residence requirement

[anotheraussie1]

I seem to have two contradictory responses - obviously I prefer the first one!

I definitely have enough points to renew under Tier 1 (I have 100 points) but left the country a few times between jobs on holidays (usually to go back to Australia to see friend's new babies etc, not for funerals).

The continuous residence requirement is not easy for me to understand.

[Baleegh]

As long as the leave doesn't exceed 180 days.. it should be fine and wont break 5 years continuous period.

[MM12]

scoring enough points on PBS is necessary but not sufficient.

Immigration Rules part 6A http://www.ukba.homeoffice.gov.uk/pointscalculator are saying that

245AAA. General requirements for indefinite leave to remain

(c) Except for periods where the applicant had leave as a Tier 1(Investor) Migrant, a Tier 1(Entrepreneur) Migrant, a Tier 1(Exceptional Talent) Migrant or a highly skilled migrant, any absences from the UK during the five years must have been for a purpose that is consistent with the applicant's basis of stay here, including paid annual leave, or for serious or compelling reasons.

also read here http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
page 20 (sorry for an awkward link)

This is relatively "new" part and is not very well explained, but apparently as Tier 1 General for the purpose of ILR continuous residence you're not allowed to leave country while not employed in this country even if you're absent less than 180 days.

I don't know if anyone had a rejection experience cause of that (not following this forum closely), wait until guru response.

[anotheraussie1]

Any experts about? I now have 2 going one way and 2 the other.

I have also read some policy responses to FOI requests which also advise one way (that if you haven't been out of the country for more than 180 days in a year then that's enough to meet the test) and the other - that if you have left for non-compassionate or non-work/annual leave reasons you've broken the residence test.

[LaurenN]

I am in a similar situation anotheraussie1, although not identical.

I am now self employed, and have been for the last 1.5 years, so evidence for absence can be covered by a letter I write, according to this document http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

However, for the previous years I was working through an umbrella company and treated as an employee from the perspective of tax and NI payments, but I never had paid leave. If I worked, I got paid a day rate. If i didn't work, I didn't get paid a day rate. So whilst I can contact both umbrella companies (and hope they still have me on records) they will only be able to identify days that were unworked as opposed to annual leave specifically.

I've not taken any more leave than if I had been working a permanent job with paid leave entitlements so it seems strange I would be denied settlement rights just because I chose to earn my money in a certain way, which is still just a legal.

I personally think we will both be fine with our situations, but it's just how you evidence it that I am finding difficult.

[ScopeD]

Perhaps Amber's explanation in this link may also help http://www.immigrationboards.com/viewto ... 4&t=154721

[LaurenN]

Perhaps Amber's explanation in this link may also help http://www.immigrationboards.com/viewto ... 4&t=154721

Thanks for that. I had seen Amber's post while trying to find out a bit more about this section of the ILR application, and whilst I am inclined to believe this will be the case, I am not willing to risk attending my appointment with no attempt to supply evidence.

We can't be the only contract employees ever to apply for ILR so I am sure some more people out there might be able to suggest what they did.

[anotheraussie1]

Thanks for your responses everyone.

I agree LaurenN, I am nervous about potential interpretations of this guidance. However, I think I'm going to proceed assuming I can go for it, but read these forums regularly etc to read of any cases where people have been refused.

I didn't realise I'd need 5 years of evidence of earnings so that's another faff - my first employer of a year (a public body) was abolished following the election and I doubt I would have kept paperwork that old. Never mind, I'm sure (I hope) there's a way.

[ScopeD]

Thanks for your responses everyone.

I agree LaurenN, I am nervous about potential interpretations of this guidance. However, I think I'm going to proceed assuming I can go for it, but read these forums regularly etc to read of any cases where people have been refused.

I didn't realise I'd need 5 years of evidence of earnings so that's another faff - my first employer of a year (a public body) was abolished following the election and I doubt I would have kept paperwork that old. Never mind, I'm sure (I hope) there's a way.

Personally I feel that you should be alright. When I read through the UKBA document in the link which MM12 kindly provided, I felt that the key issue is not having spent more than 180 days in any given year outside the UK. Surely you are allowed to take a vacation and surely one cannot say that a vacation outside the UK is not connected to the main reason for your presence in the UK. I think where you spend time outside the UK and that time outside is linked to other economic activities which are not linked to your UK visa, then that is the point at which you break your continuous stay in the UK. But a simple vacation to cool off the pressures of the UK busy life somewhere in the world - I don't see how that breaks the continuous stay rule - unless if its more than 180 days or if this was linked to other economic activity. Perhaps to prove that you were economically active in the UK for the whole five years, you could provide P60s instead. There is another thread which explains how you can get in touch with HMRC to request them for a letter with your full history, so you might want to consider this option if you are nervous about the absences. Perhaps the moderators can shed more light.

[LaurenN]

Thanks ScopeD. I totally agree. And considering I think I have only been out of the country a total of 115 days in the 5 years (thank goodness for passport stamps or else I'd have no idea where I had been and when )

[LaurenN]

Thanks for your responses everyone.

I agree LaurenN, I am nervous about potential interpretations of this guidance. However, I think I'm going to proceed assuming I can go for it, but read these forums regularly etc to read of any cases where people have been refused.

I didn't realise I'd need 5 years of evidence of earnings so that's another faff - my first employer of a year (a public body) was abolished following the election and I doubt I would have kept paperwork that old. Never mind, I'm sure (I hope) there's a way.

Proof of 5 years worth of earnings? Where did you hear that? You only need to prove your earnings for a 12 month period out of the 15 months previous to your application date.

[ScopeD]

You may also want to take a look at this http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary which explains on page 11 Section 6.3 that:
6.3 Continuous period of five years
From 13th December 2012, UK Border Agency requires Tier 1 (General) migrants to provide evidence of all absences from the UK during the continuous period that were due to compelling or compassionate reasons. This applies to applications received on or after this date and not to considerations of cases received prior to but decided after 13th December 2012.

[Lmjr]

I am in a similar situation as i went to the US to visit family for a month after finishing a contract with a government agency. While awaiting my job offer for the company i work for now i was in the states and when i received the offer i needed to provide evidence/reasons of where i was in the past 5 yrs before i could start. I was told that apparently 180 days could be long enough for some to do something outside of the UK eg serving a prison sentence. I guess hence the limit chosen by UKBA.

The thing is though these rules came out only in Dec 2012. I seem to remember immigration rules can only be forward looking. That is to say shouldn't they be considering continuous periods after the date of the change, not date of application? So somebody eligible for ILR and in between jobs post Dec 2012 and left for vacation becomes ineligible? I think it is open to contention. Even the life in the uk test website states that the rules are unclear but what they have posted there tended to absences over 180 days.

[ScopeD]

I am in a similar situation as i went to the US to visit family for a month after finishing a contract with a government agency. While awaiting my job offer for the company i work for now i was in the states and when i received the offer i needed to provide evidence/reasons of where i was in the past 5 yrs before i could start. I was told that apparently 180 days could be long enough for some to do something outside of the UK eg serving a prison sentence. I guess hence the limit chosen by UKBA.

The thing is though these rules came out only in Dec 2012. I seem to remember immigration rules can only be forward looking. That is to say shouldn't they be considering continuous periods after the date of the change, not date of application? So somebody eligible for ILR and in between jobs post Dec 2012 and left for vacation becomes ineligible? I think it is open to contention. Even the life in the uk test website states that the rules are unclear but what they have posted there tended to absences over 180 days.

If the absences are less than 180 days/year, you should be alright. UKBA do not seem to be clear therefore best to explain the one month as vacation.

[Lmjr]

Thanks ScopeD! Been a while since my last post. I am due to apply in May. Fingers crossed.