ILR absences over 180 days

[gvsandeep33]

I have been reading the forum for ages now and I finally need some solid advice and I am hoping you can help.

I am applying for an ILR in Jan 2013. I entered the country on HSMP and switched to a Tier 1 general.

The only issue I have is the amount of days out of the country. i have been out for a total of 297 days. 195 of those were for work and the rest were on vacation. None of them were for a continuous period of over 90 days. I was able to get a letter from my boss who has explained my reasons for work.

Would the new guidelines announced yesterday (Dec 13th 2012), specifically the 180 days rule, prevent me from being approved for the ILR?

Do I now also need to get a letter from our employer for the absences which were paid annual leave?

Any help would be much appreciated.

[ukswus]

I have been reading the forum for ages now and I finally need some solid advice and I am hoping you can help.

I am applying for an ILR in Jan 2013. I entered the country on HSMP and switched to a Tier 1 general.

The only issue I have is the amount of days out of the country. i have been out for a total of 297 days. 195 of those were for work and the rest were on vacation. None of them were for a continuous period of over 90 days. I was able to get a letter from my boss who has explained my reasons for work.

Would the new guidelines announced yesterday (Dec 13th 2012), specifically the 180 days rule, prevent me from being approved for the ILR?

Do I now also need to get a letter from our employer for the absences which were paid annual leave?

Any help would be much appreciated.

Look at the new application form. It says quite clearly that in your case, you don't need to provide evidence for work-related travel, nor for paid leave.

[M2008]

What about some one without job out of uk for 60 days?

[gvsandeep33]

Thank you ukswus for your reply. I looked at the application form again and you are right the letter from the employer now does not apply to my application.

It does however ask for a "Letter from applicant detailing reasons for absence due to compelling or compassionate reasons".

I am still trying to understand what it means for my application as i have more that 180 days out of the country. Does it mean that I have to write a cover letter explaining my absences? It also specifies compelling or compassionate reason, do my work related travels come under this category?

[M2008]

Rule is not clear for Tier 1 applicant if they are outside 180 days...

[ukswus]

Thank you ukswus for your reply. I looked at the application form again and you are right the letter from the employer now does not apply to my application.

It does however ask for a "Letter from applicant detailing reasons for absence due to compelling or compassionate reasons".

I am still trying to understand what it means for my application as i have more that 180 days out of the country. Does it mean that I have to write a cover letter explaining my absences? It also specifies compelling or compassionate reason, do my work related travels come under this category?

No, they separate compelling/compassionate reasons from work-related/annual leave (otherwise they would not stress it in the application form). By these absences they mean things like travel for personal health-related reasons and travel disruptions (eg because of natural disasters), as well as travel to visit sick relatives. Probably travel for marriage purposes would also fall into this category.

[gvsandeep33]

Thanks again. So if i understand currently that means I can apply in Jan for the ILR without having to extend my current Tier 1 visa, and it should be a straightforward application?

[M2008]

Hi ukswus

If any one absence is due to lost employment or unpaid leave, do they reject application?

[ukswus]

Hi ukswus

If any one absence is due to lost employment or unpaid leave, do they reject application?

My thoughts about it are here:

http://www.immigrationboards.com/viewtopic.php?t=120750

[ukswus]

Thanks again. So if i understand currently that means I can apply in Jan for the ILR without having to extend my current Tier 1 visa, and it should be a straightforward application?

Based on what I know, my understanding is yes. But I am not a lawyer, so cannot guarantee this.

[cs95tdg]

It would be worth reading the following updated case worker guidance on "Guidance –ILR – calculating continuous period in the UK – v6.0". Page 10-12 explain absences that would be considered acceptable and not break continuous residency.

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

While the following clause only refers to Employer Sponsored immigration categories, I'd be interested to know whether the UKBA would apply similar discretion when it came to Tier 1 General applicants that have been away for short breaks due to breaks/change in employment (i.e. absences that cannot technically be categorised as annual leave or for serious compelling reasons) during the 5 year period with not more than 180 days away during each 12 month period.

Where an applicant’s continuous residence period includes time spent as a Tier 2 Migrant or a work permit holder annual leave includes a short holiday taken on conclusion of employment, where the applicant applied to work for a new employer within 60 days of the conclusion of the previous employment (see link on left: Breaks in the continuous lawful period).

[M2008]

That is good one..

I think if absences are less then 180 days...better to put as holidays irrespective reason you went outside.

But if I put 60days in one trip, do they question only you may have 25-30 annual leave and how did you took 60 days holidays

[ukswus]

It would be worth reading the following updated case worker guidance on "Guidance –ILR – calculating continuous period in the UK – v6.0". Page 10-12 explain absences that would be considered acceptable and not break continuous residency.

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

While the following clause only refers to Employer Sponsored immigration categories, I'd be interested to know whether the UKBA would apply similar discretion when it came to Tier 1 General applicants that have been away for short breaks due to breaks/change in employment (i.e. absences that cannot technically be categorised as annual leave or for serious compelling reasons) during the 5 year period with not more than 180 days away during each 12 month period.

Where an applicant’s continuous residence period includes time spent as a Tier 2 Migrant or a work permit holder annual leave includes a short holiday taken on conclusion of employment, where the applicant applied to work for a new employer within 60 days of the conclusion of the previous employment (see link on left: Breaks in the continuous lawful period).

If they don't apply this concession, that would be very illogical (to say it lightly), as from the very beginning Tier 1 holders have not been tied to any specific employers (unlike Tier 2 ones). Thus, while Tier 2 holders could only go abroad on paid leaves by default, Tier 1 holders had no way of knowing that this rule may apply to them at some point. That would be a huge retrospective change.

[cs95tdg]

If they don't apply this concession, that would be very illogical (to say it lightly), as from the very beginning Tier 1 holders have not been tied to any specific employers (unlike Tier 2 ones). Thus, while Tier 2 holders could only go abroad on paid leaves by default, Tier 1 holders had no way of knowing that this rule may apply to them at some point. That would be a huge retrospective change.

I agree. It appears that there is still insufficient clarity on several policy changes that were laid out in November & came into effect yesterday. While trying to make it easier for Case workers to apply the rules, it appears to have been made more complicated to understand in some respects. Definitely requires fine tuning for clarity, so that those applying & the case workers have the same understanding.

[madhumesh]

What could be reasons connected with the applicant’s purpose for being in UK, any ideas?

In the following categories, absences must be for reasons connected with the applicant’s purpose for being in the UK or for serious or compelling compassionate reasons. Evidence,
as specified above, must be provided for compelling or compassionate reasons only:
 UK ancestry
 business person This guidance is based on the Immigration Rules
Page 12 of 19 Guidance –ILR – calculating continuous period in the UK – v6.0 Valid from 13 December 2012
 investor
 innovator
 writer, composer, or artist
 retired person of independent means
 Tier 1 (General)
 Highly skilled migrant programme (not applying under Appendix S of the rules)