ILR rules, you never know…

[AsherY]

Hi fellows,

I would like to share a different experience of ILR, which three of my fellows enjoyed within last 10 days.

I have been reading different cases of ILR on this forum and have established the following:

1. Four years continuous stay in UK with a status leading to settlement like WP, HSMP etc.
2. Financially active at the time of applying for ILR.
3. Sufficient funds to maintain self & dependents living.
4. No absence of more than 360 days in 4 years and no individual absence of more than 90 days from UK. Though, this condition may be relaxed to some extent if absence is due to nature of business and individual absence may go up to 120 or 150 days , purely Home Office discretion. But what I learnt from the forum that it is important that one must be paying UK taxes and be contributing in UK’s economy.

Three of my friends, who came to UK on WP about 4 years ago. Joined a consultancy company. After about one year work in UK they were sent on a project to Saudi Arabia, initially for 12 months. All of them declared to Inland Revenue that since they will be out of UK for more than 12 months, their tax code might be changed to non-taxpayers. They continued in Saudia for 3 years. Continued receiving salary in Starlings in the UK account being employee of UK firm. Visited UK once or max twice a year for few weeks. So, the over all scenario was:

1. UK firm employee.
2. Earning salary in UK bank account.
3. No tax payment for 3 years.
4. Worked for 3 years on a project in Saudia.
5. Total absence from UK was more than 1000 days in 3 years (instead of 270 days).
6. Now, back from project but still with consultancy firm.

Went to Corydon with (i) bank statements (ii) employer letter and got the ILR.

Isn’t it interesting? Immigration rules can deviate to any extent.

What are the comments of seniors and moderators on this?

Regards

[Epiphany]

Question for you. Did they declare their absences from the UK (totalling around 1000 days) on the ILR application form? Did they get a letter from the employer confirming this period of absence and that they were getting paid in the UK and still employed with them.
Thanks

[vin123]

I hope and pray their residencies 'rest in peace' with them all the time.

Amen !

[tvt]

I am sure your friends lied in their ILR applications. You can be sure that one day this will surface and their ILR status will be voided.

[User]

I don't think absence out of the UK for 1000 days will be a problem. It is very much acceptable if it is clearly detailed in the "Absencs over 3 months section" and in a cover letter (with adequate documents form UK employer) that you were absent because of UK employer business needs (like working abroad for UK business). This would be accetable to a case worker considering the fact that the guys have been in salary books in the UK for the UK employer all through the 4 years.

But the only thing is - not having paid any UK takes/NIC for those 3 years is a little dodgy. It is impossible to remain in the UK pay books and not pay Tax/NIC. That part seems a little illegal.

But if the case worker has approved the ILR it only means that he has accepted any valid explanation given for hte 1000 days absence.
And possibly the case worker did not refer to any Inland revenue data from his computers. There is nothing in the ILR application that asks for a person to say they have been paying all tax dues. So if that has not been checked by IND, then I would not blame the ILR applicant - its the case workers responsibility to check that. No applicant has to promise in teh application that they have amde all tax dues.

So I don;t think the applicants have lied in teh application. I can only say that the case worker has take his decision based on his own criteria.
If he wanted to check the tax dues ro pending staus fo the applicant, it was his discretion to do so - not the applicant's responsibility - because the SET(O) does not ask anything about it.

We will have to trust and accept that th case worker is the final perosn who has the say in the decisions.

Regards.

[Kayalami]

Either:

1. The applicants did not detail the absences i.e. misrepresentation/ concealment of material facts.

2. The applicants detailed their absences and the caseworker ignored it - find me a hen with teeth and I'll find you a caseworker who will do such.

3. The applicants detailed their absences and the caseworker exercised discretion - as a minimum Inland Revenue and Immigration case law would have been consulted given the extraordinary absence from the UK notwithstanding secondment employment with a UK based company. Unless the Home Secretary personally intervened for some unknown reason this IMHO is unlikely to have been the case.

If point 1 your friends 'luck' just like their status better hold out indefinitley. ILR can be revoked where attained in a manner not otherwise in accordance with the rules (unless it was a Home Office error not based on misrepresentation). Pursuant to this there may be criminal proceedings, subsequent imprisonment and deportation.

Since I do not know the contents of their applications I cannot give a categorical response.

[AsherY]

Hi all,

Thanks for your views.

I have seen the copies of their SET (O) form and employer letter. Here are the answers to couple of grey areas highlighted by respected members.

Yes, they declared their actual absence from UK in the SET (O) form. There have been 5 absences from UK in last 3 years one is of 85 days and rest 4 vary between 245 to 280 days. 4 visits to UK, each of average 2 weeks.

Employer letter is not very detailed (3 quarter of a page). Stating the hiring date, confirming current employment and specifically mentioned that the employee was posted on an overseas project, which lasted for 3 years. Letter did not mention any thing about tax. However, all payslips show zero tax and zero NI.

Remaining on UK payroll and not contributing Tax & NI seems somewhat legal, as they have been issued letter from Inland Revenue for the change in Tax Code, which describes that they won’t be paying tax & NI as they have declared 12months+ work absence from UK. However, how this non-contribution to UK economy did not affect ILR, can’t say any thing. SET (O) does not ask for any such thing that what has been the contribution to UK’s economy.

They stated straight facts and took a chance. It paid back. For how long will it sustain, no clue. I hope they won’t face any criminal charges or deportation later on. IMHO, either caseworker overlooked the data, or he/she was not fully conversant with regulations (very unlikely) or he/she had been been very soft. Obtaining ILR with mere 400 days presence in UK (which is almost equal to allowed absence) and with no direct contribution to UK economy looks like a dream, which became reality.

I wish, all ILR applicants could find such hen with teeth....

Regards

[tvt]

If they have not lied as you describe there is no risk of criminal investigation.

[AsherY]

Hi again,

What's the opinion of members (especially seniors) that if it is found later (say when similar cases follow) that case worker's discretion or decision was not appropriate in the previous case to accommodate these much long absences without any payment of taxes etc. despite all the truth from applicant. Can HO withdraw ILR?

Rgds

[tvt]

Yes, they can withdraw the ILR (case law).

[vin123]

Check this link

The above link has pointers to enough documents which I believe covers this case fully.

[Kayalami]

Hi again,

What's the opinion of members (especially seniors) that if it is found later (say when similar cases follow) that case worker's discretion or decision was not appropriate in the previous case to accommodate these much long absences without any payment of taxes etc. despite all the truth from applicant. Can HO withdraw ILR?

It will depend on the circumstances and in particular how the discretion if any was exercised in relation to the information provided by the applicant vis a vis the caseworkers experience, the immigration rules, case law and operational policy i.e. I am giving you a hypothetical answer to your hypothetical question. The Home Secretary has the power to revoke ILR and citizenship accordingly where there are justifiable reasons for such - a right of appeal exists against this decision.

[Joseph]

It seems to me that ILR can be withdrawn or cancelled at any time given what is stated in the letter that is currently provided with the ILR. If a person comes here only on short visits, the ILR can be revoked as per the excerpt below from Guy's ILR letter posted earlier today:

In order to be considered as settled here you will have to be able to show that you are habitually and normally resident in this country, and that any absences have been of a temporary or occassional nature.

You will not be re-admitted as a returning resident if you are resident overseas and only return here for short periods.

According to a recent exposé book by an ex Immigration Officer (Refusal Shoes by Tony Saint), the IO at the port of entry has the power to deny entry if he thinks that there is no habitual residency. This even applies, as I read it, when they make short visits less than 2 years apart to get around the 2-year rule. If the person is a visa national, he could be denied entry, full stop. If he is a non-visa national, he would get a 6-month visitor stamp, which effectively voids the ILR. According to this book, the IOs get special pleasure nailing people who abuse this rule.

So the ILR is not really worth much if your friends don't maintain it by spending time here. Just because one Immigration Officer was lax with the rules doesn't mean the next one they meet at the airport will be. Furthermore I'm sure they won't be as successful with a nationality application!

Joseph

[AsherY]

Respected members,

Feel sorry for all this. We need to be mature, digestive, calm and positive to absorb and benefit from the information shared on forum. No person named mkayani or similar is known to me. My friend thinks that world is very small and every one is convergent on one case, its not. Thousand of people are in this loop, few can have similar cases. It seems very likely that we are talking of two different cases, as we are quoting different sets of contexts. Almost all my fellows live in my area and they prepared the cases with my inputs (based on my ILR experience last December) and so I saw all their papers. And yes, I shared this information with their full consent so that they are well prepared for any event in future, so no question of jealousy or bad intentions. I think positively.

No hard feelings mkayani, such reactions are often seen on this forum.

Chill out

[ChandraSP]

mkayani,

Be cool. Nothing to take personal. It is mere coincidence that your friends also have same issue. I am new member on this board and I know a friend of mine have similar kind of experience. He came here on WP and was out of country for more than a Year, but his ILR is thru, just like that (He got it 8 months back).

AsherY,
Keep it up. Really liked your positive spirit.

Regards
Puti

[Joseph]

I think the discussion has gone far enough off track. Most of the later posts have been a "side issue" which has detracted from the points that AsherY has laid out. I have deleted these posts (made by all of us) and I am locking this string.

Joseph