Post
by jami » Sun Jul 24, 2011 1:02 pm
Some one had pointed out to UKBA regarding different treatment of absences by case workers. Text of request to clarify and UKBA response is relevant to this topic and as such reproduced blew:
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2 July 2011
Dear UK Border Agency,
The guidelines for ILR clearly state that
"The Immigration Rules do not make any provision for absence from
the UK,
however operational practise allows for absence consistent with
paid
leave or work commitments to be disregarded from any assessment of
absence. In addition to this we will permit short breaks of no more
than 3 months in duration for a single absence and six months in
total
throughout the whole of the five years."
However although some people have had absence consistent with paid
annual leave, their applications have been rejected on the basis of
not having spent enough time in the UK for it to be regarded as
continuous. On what basis do caseworkers apply this discretion? In
some cases (reading from various immigration forums) caseworkers
seem to disregard paid annual leave from assessment of absence,
whilst in others they count this as part of the total 6 month
absence permitted. A clarification in this regard would really help
as several people still seem unclear over how caseworkers decide
whether to disregard paid annual leave or not.
Yours faithfully,
K R
----------------------------------UKBA reply ----------------------------
Date: 22 July 2008
Dear KR,
Thank you for your e-mail of to Freedom of Information Team, in which you ask for clarification of current UK Border Agency guidance for assessing the period of 5 years continuous lawful residence in United Kingdom. Although your request has been submitted as a request for information under the Freedom of Information Act 2000, it addresses issues more related to operational policy as the information you have requested is already reasonably accessible to you on UKBA website.
The information you require can be found at the following location:
UKBA Modernised Guidance: Indefinite Leave to Remain - Calculating Continuous Period in the UK
You will note that, within UKBA Modernised Guidance, 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 be disregarded or aggregated, but these absences must be approved by a senior officer at either HEO or SEO grade.
In making the decision whether to disregard or aggregate leave, the caseworker must take into account all of the individual circumstances of a migrants case including the type of employment, the annual leave in their contract of employment, the reasons and necessity of short or longer business trips, together with any exceptional and compassionate factors
which may have delayed return to the United Kingdom. In exercising discretion, the caseworker and senior officer would assess whether this absence would be reasonable on a case by case basis. To aid the decision making process, it is recommended that migrants
forward all relevant supporting documentation at the time they make their application for settlement including employer/medical evidence where appropriate.
We have been reviewing the Modernised Guidance to clarify some of the issues that you have raised. The Settlement Operational Policy Team have recently re-circulated this guidance to all caseworkers who work on settlement applications, to ensure that any potential in consistencies are minimized.
