ILR clarification

[shreem]

My workpermit is a contracted employment (exactly 4 years + 2 weeks). Although technically I will have have completed 4 continuous years of workpermit, my job does not extend beyond 2 weeks after the 4 year period. Hence, I cannot show that my job with the employer is continuing (which is a requisite for the SET(O) aplplication.

Do I still qualify for ILR just for the fact that I have completed 4 years?

[John]

Has the job actually ended yet? If not then I think it is continuing! I think it is as simple as that. No job is effectively guaranteed to last forever.

Go for it! Well that is my thought anyone.

[MWazir]

I agree with John, you should still qualify for ILR. You will be able to apply for ILR in your 47th month at which point you will be still employed for another 6-7 weeks.

You will still have to get a letter from your employer and I think that could be a bit tricky because they cannot say that you are in continued employment or that your job is permanent in nature. They will just have to state that you have been employed for the last 4 years running and you present your salary slips.

What are the chances that your contract may be re-negotiated or extended? That would make this entire hypothesis irrelevant.

[aix]

I find this whole "employment is continuing" business highly confusing. What exactly is the meaning of this criterion -- that you won't get laid off the minute you get your ILR?

In my opinion, if you are employed for any length of time beyond the 48 months, then your employment is continuing. In your case it will be continuing for another two weeks (not that your employer's letter has to mention this).

Is there an official explanation of the meaning behind this criterion?

For what it's worth, when I applied for ILR, the employer's letter simply stated that I was employed by XYZ, as well as including the date I joined the company and details of my pay. Basically, it was a standard reference letter, probably identical to one I would get if I needed a mortgage reference. Didn't raise any questions.

[John]

Aix, you are looking for logic in immigration law ... sometimes very difficult to spot! For example, in order to get ILR you need to prove that you will not need to claim Public Funds, but as soon as you from ILR you are allowed to!

As far as Shreem is concerned, could it be that the current employer was just being realistic about four years ago? That is, as soon as the person has ILR they are free to work for anyone. But that does not necessarily mean that they will not want the employment to continue. Indeed if they decline to offer another fixed-term contract then that might be construed as unfair dismissal.

Shreem, gather your evidence ... submit your ILR application in the last 28 days of validity of the current visa.

[shreem]

Thanks folks.

My contract is fixed-term and I have to leave after that.

I do get the point about the ambiguity with regards to "continuing" job after 4 years. There is no reference to how long a job should continue to qualify for ILR. Of course, if these are put in black and white, we wouldnt need a forum like this to ponder over
(I did ring the home office helpline and was none the more wiser on this issue)

I do complete 10 yrs of stay next October and hence theoritically I could wait until then rather than put £500 down this route.

To add more confusion, I would qualify for HSMP and hence theoritically could transfer to HSMP and qualify for ILR on cumulative rules (Workpermit + HSMP > 4years).

Well, the cost analysis is as below:

1. Go for ILR now with current workpermit = £ 500 (or 335)

2. Wait until Oct next year, hence £ 500 (or 335) (for extending my current LTR until Oct) + £ 500 (or 335) in Oct for ILR = £ 1000 (or £ 670)

3. Transfer to HSMP (£315 + £335) + £ 500 (or £ 335) to go for ILR after HSMP approval = £ 1150 (or 985)

Where should I put my eggs chaps??

[John]

Shreem, I don't see much contest between those three choices. Clearly getting ILR soon is far better than the others.

I think continuing merely means .... the employment has already started ... it is in place at this point in time ... it will continue for at at least a point in time after this moment in time. I get the impressive you are looking for a problem?

My contract is fixed-term and I have to leave after that.

Have they told you recently that you will not be needed after the current contract expiry date? Have they told you that you will not get another contract renewal? If they do nothing then that might amount to dismissal, and even unfair dismissal.

[shreem]

Thanks John.

I get the impressive you are looking for a problem?

Not at all. I just want to be sure that I'm doing the right thing. With regards to my contract, I knew it right from the start as to how long the contract was.

I will let you guys know what I do and what transpires. I welcome any more thoughts on this issue

[Chess]

I think continuing merely means .... the employment has already started ... it is in place at this point in time ... it will continue for at at least a point in time after this moment in time.

[lemess]

Presumably your work permit is expiring soon or at the very least even if you have one that extnds beyond your contract, just how will you legally stay in the country till next October ? if your job ends I understand that the WP is void so I'm not sure how you can get an ILR after that as you would be in violation of immigration rules.

Am I missing something ?

[shreem]

Lemess,

I will be moving on to a category not requring a workpermit nor leading to a settlement. That is where the problem is.

Thanks

[John]

That is where the problem is.

Although you posted otherwise earlier in the day you have not convinced me at all that you continue to think there is a problem.

Just get the form SET(O) in as soon as you are within the last 28 days of your current visa. Why would you want to do anything else?

[shreem]

John,

Just get the form SET(O) in as soon as you are within the last 28 days of your current visa. Why would you want to do anything else?

I wish it was that simple.

As far as the SET(O) application as a work-permit holder is concerned, the main document required is to establish that the employment is "continuing". Continuing can be interpreted in as many ways. "continuing" could also mean "no time limit set" or "for the forseeable future". I did ring the home office helpline about this issue and the helpline desk was unsure and felt that the case would be dealt as seen fit by the caseworker on the day.

The whole idea of the "continuing" phrase, in my view, is to establish the ties between the employer and the employee and the longer it is, the better.

I'm not searching for trouble. However, I'm very well aware that when it comes to the homeoffice, any decision rests on how the caseworker assesses and interprets an application. When there is a ambiguous situation like this, there is no guarantee that a decision will be based on logic. All I'm wanting to do is to explore all avenues and take a route where the risk is minimal, though it may not be the shortest route.

[John]

Well one thing is totally certain ... if you don't put the application in you will never know! Just present the application with the best possible supporting evidence. Hopefully your fears will prove to be unfounded.

[aix]

If you do apply for ILR in person on the earliest possible date (28 days before 48 months), do you think this will leave you enough time to still apply for HSMP if you run into problems with ILR?

[bani]

How much time do you have before you can file for ILR? Is there time to look for another job? If you get a job offer before your current WP expires, then you should have no problem with the ILR application I think.

[John]

Bani, I see what you are saying but I think that even if another job was obtained that information should be held in reserve.

That is, he should apply for ILR on the basis of his current continuing employment. Then should he encounter a problem, which I doubt, he might use that new job as evidence to assist him.

Or put it another way, mentioning a new job initially will only draw unnecessary attention to the fact that that whilst the current job is continuing, it will end on a particular defined date.

[Kayalami]

shreem,

Aspect of ongoing employment is one to resolve with your employer - nothing to do with the Home Office i.e. it is not their business to deal with why you can't get it..all they care is do you have it. They have the right to reject the application where such is not presented.

Are you in one of those bench type places (your post is consistent with such over the forum's lifetime)? Is your employer willing to issue a letter? Fact is your employment will be continuing post ILR application date given that such can be 28 days prior to 4 yr WP anniversary. This gives you 6 weeks of ongoing employment. Perhaps being on a 'fixed term contract' your employer is cautious of an 'ongoing employment' letter - you could very well use this against them in tribunal proceedings under employment legislation. No offence meant and I hope none taken but there seems to be more to this than meets the eye. Sorry I see no way out.

[PB]

I am aware of a few cases where people have got ILR without the Employer's letter. I think there has been some discussion about the same on this board also. Perhaps you could call the Homeoffice or Croydon PEO and find out.

Regards,
PB

[John]

Surely the employer's letter merely needs to say that the employment of (name) commenced on (date), has continued ever since that date, and continues at the present time.

It need say no more than that.

[tvt]

The following is an excerpt from the Immigration rules:

"Indefinite leave to remain for a work permit holder

134. Indefinite leave to remain may be granted, on application, to a person admitted as a work permit holder provided:

...

(iii) he is still required for the employment in question, as certified by his employer. "


All your employer is therefore required to say is that your employment is still required. No need to mention that your employment is continuing; no need to specify for how long.

[man1976]

HI,
I got ILR this monday. I think a letter from your employer saying you are working from this date will do the job. Make sure when the officer asks you for the documents. Provide your salary slips and bank statements...

In my case the only document the officer checked was the letter. which says we dont hav plans to terminate his employment. But a letter saying something like you are working in this company from to date should do the job.

Worth trying.,,,,,,

[shreem]

I previously posted about my query about applying for ILR after workpermit employment with only ~6 weeks of continuing employment. I wrote to the Ind Policy unit asking about clarification about the "continuity" of employment, i.e. whether it needs to be indefinite or could it be shorter.

My query was

I am shortly completing 4 years of continuous work-permit employment in the UK. I'm planning to apply for ILR based on this. I have had continuous residence with no absences from the UK. I believe that I would satisfy all the requriements for grant of ILR.

However, my employment with my current employer terminates 2 weeks after the 4 year qualifying period.

Is the fact that the employment is not continuing for an indefinite period after the 4 year qualifying period, will that be against the granting of ILR ?

I spoke to the IND telephone helpline (Agent: Mr John Anthony)and he clarified over the phone that as long as my employment is continuing with my employer at the time of application, and for all of the 4 year qualifying period, that would be sufficient for grant of ILR.

Could you confirm that in reply to this email please. I would like to apply for SET(O) only after clarifying this issue about the continuing employment.

Thanks.

The IND have replied as follows

Thank you for your enquiry of 7th November 2005.

At the time of you applying for ILR your employment should be continuing and you should have been in four years continuous employment.

The granting of an application is at the sole discretion of a caseworker and we are unable to guarantee the outcome of any application.

Yours sincerely

Managed migration team

Should I go ahead with SET[O] application?

BTW, moderators, I wasnt aware of the "protocols" of this forum and hence started a new string. I apologize.

[John]

A slightly different variety of this is mentioned in this topic. If you look at that, and in particular my message posted 10.11.05 at 4.08pm (UK time) you will see that IND's instructions to its staff include :-

is still engaged in the same employment

That is, the instructions do not include any requirement that the employment concerned is going to continue for any particular length of time. "Is still engaged" .... time = now!

My own conclusion in your case is the same as there ... ILR should be granted.

The message you received included "The granting of an application is at the sole discretion of a caseworker and we are unable to guarantee the outcome of any application.". They will always tend to include that sentence but you should not be unduly worried by it.