Tier 2 to ILR (compelling circumstance)

[eduptz]

I came to UK on a student visa in Sept 2010 and started a job (shortage occupation) afterwards in the UK on the PSW visa.

The PSW visa expired in December 2013 and my employer applied for the Tier 2 (General). In January 2015, I was sent to work back in Nigeria for the same company whilst my wife and kid stayed back in the UK. Though I was supposed to spend about 7 months on the aforesaid project. I ended up spending over a year in total though I came back periodically to spend time with my family. I returned to the UK in August 2016 and stayed without any absence. My tier 2 was extended in December 2016. See snapshot of absences below:

06/01/15 - 24/04/2015

• short assignment -1st trip

13/05/15 - 04/09/2015

• short assignment - 2nd trip

• close relative diagnosed of cancer (end of June)

• I had to source for funds to fly her to and maintain her in India

29/09/15 - 11/02/2016

• close relative returned to Nigeria and passed on two days later (01/11/16)

• close relative buried after a month (11/12/16)

• I had a knee injury (08/12/16)

• my brother was abducted (just for few hours)

21/03/16 - 19/08/2016:

• Psychotherapy

• my company decided to close-down operations in Nigeria and designated me to wind-down

.

I want to now apply for ILR bordering compelling circumstances and my company is willing to back me as much as they can.

My main area of worry are:

• when I was sent to Nigeria, my salary and tax was not paid in the UK.

• Also my wife paid council tax as a single parent whilst I was away

• is it worth going for the super-priority option? Please note that my wife has now stayed on the tier 2 (general) dependent for more than 5 years with only 35 days absences.

I will appreciate your opinion/advice as I need this to work or I stand leaving the UK in December to cool off for months which will be disastrous.

[zimba]

You seem to have had long absences from UK which is longer than 180 days per residence year. That breaks your continuous period of stay required for ILR. Also as your sponsor did not pay taxes here, UKVI will not accept those periods as lawful stay under Tier 2 for ILR either.

[eduptz]

Thanks Zimba for your response.

Yes I stayed more than 180 days in one of the 12 months based on the old counting rule and this was largely due to the ill health and eventual passing on of a close relative.

Regarding, the tax, though I was not earning in the UK, I was working for the same entity as it is a global company.

There is no denying that it is a complex situation but I will appreciate if you can offer some suggestion on how to navigate this if possible or the application which I am preparing will be meaningless.

[zimba]

Getting ILR under Tier 2 will not be an option as far as I see it. Similar cases were refused before.
You may have to aim for long residence instead if your total absences are less than 540 days in total until Sep 2020.
What is the validity of you current leave?

[eduptz]

My current leave expires on December 16,2019 and you would have seen I have exceeded the 540 days threshold already with the issue I already stated. My first daughter will be 7 years in May 2020 as well but I currently have no efficient way of having a leave till then.

[CR001]

Any reason why you cannot extend your tier 2 visa??

[zimba]

Any reason why you cannot extend your tier 2 visa??

I guess he has been on Tier 2 since Dec 2013 so Dec 2019 will be max 6 years he will be allowed under Tier 2

My current leave expires on December 16,2019 and you would have seen I have exceeded the 540 days threshold already with the issue I already stated. My first daughter will be 7 years in May 2020 as well but I currently have no efficient way of having a leave till then.

Then ILR will not be an option at all. You may have to look into other routes

[eduptz]

Thanks for your feedbacks.

Yes, I would have maxed out by the end of my current visa. Other than Tier 4 and Tier 1 which I cant currently afford ....what other routes can I explore?

[CR001]

Tier 1 Entrepreneur is also closed now for new applicants.

So really only Tier 4 for you or your spouse if you have one or Innovator visa or start up visa.

https://www.gov.uk/innovator-visa

https://www.gov.uk/start-up-visa

[eduptz]

Thanks and apologies for asking more.

Do you by any chance have a link(s) to similar cases; refused or granted. I will like to see if I can draw any premise from them as my company is keen on gambling the ILR application given that their other option will be to transfer me to Asia pacific which will automatically reset my clock for eventual 10 yrs route if my excessive absence wont still be a problem.

Also from your experience, which do you think is more of a problem for me, the absence or not being paid salary (and tax) for that period

[CR001]

the absence or not being paid salary (and tax) for that period

Both.

Members have been refused ILR for exceeding the absence limits, which have been very clearly publish for a long time now.

indefinite-leave-to-remain/big-changes- ... 46559.html

[eduptz]

the absence or not being paid salary (and tax) for that period

Both.

Members have been refused ILR for exceeding the absence limits, which have been very clearly publish for a long time now.

indefinite-leave-to-remain/big-changes- ... 46559.html

I really appreciate the link but it only emphasizes more on PBS dependent changes.

Nonetheless, I am very aware of the continuous residence theshold which I have broken but like I said earlier, my company and I are exploring the compelling circumstances option. So I actually meant cases with compelling circumstances.

Cheers

[CR001]

Memebers who have applied for ILR with excessive absence due to either business travel or exceptionally compassionate reasons (parent dying of cancer for example) have been refused due to breaching the absence limit stated in the tier 2 immigration rules.

Unless you can split your absence of that time in 2 x180 day or less in 2 separate 12 month periods, you stand little chance of success.

That is besides the fact that if you left the UK employment, your sponsor should have informed HO and your visa would have been curtailed.