ILR Absences - UKBA clarification about conflict

[jami]

I wrote to UKBA on the subject under Freedom of Information and blew is text of my request and UKBA reply:
-------------------
Dear UK Border Agency,

There appears to be errors in UKBA modernized guideline titled "Indefinite leave to remain - Calculating continuous stay in UK". The relevant extract is as under:

"Discretion in cases where continuous residence has been broken
Time spent here may exceptionally be aggregated, and continuity not
insisted upon, for cases where:

• There have been no absences abroad, see calculation of the five
year period for settlement, and authorised employment or business
in the UK has not been broken by any interruptions of more than
three months or amounting to more than six months in total for the
whole five year period.
Decisions in such cases must be taken at HEO level or above.

Or

• There have been longer absences abroad, provided the absences
were for compelling grounds either of a compassionate nature or for
reasons related to the applicant’s employment or business in the
UK. No single absence abroad must be for more than three months at
a time and they must not total more than six months.
Where continuous residence has been broken, periods may be
aggregated or shortfalls disregarded only with the approval of an
SEO or Grade 7.â€

[farah]

From the following expression used in above UKA reply:

"Breaks of leave within the UK and other longer absences outside the UK..."

it appears that now breaks of leave within UK would also be taken care of.
It is a good news.

[emarketeruk]

Hi jami,

i am not getting this.. what do they mean by breaks within the UK? if you are withing the UK, you are not breaking the absence anyways isnt it? could you please summarise what HO is saying in simple terms for us to understand please?. I have 2 business absence, one for 3 months and another for 4 months at a streatch for my ILR & i am trying to understand what my position would be based on this reply?

appreciate some clarity on this

[jami]

Break in leave in UK is not absence from UK rather break between two leaves which breaks the qualifying period and re-sets ILR clock. Suppose for example one Tier 1 applicant had entry clearance/leave to remain in UK of three years ending on 31/3/2010. He applied for extension/further leave to remain in UK on 25/3/2010 and his payment was declined and application was returned as invalid on 15/4/2010. He applied again on 20/4/2010 and leave was extended for two years on 30/4/2010. Since valid application was filed on 20/4/2010 therefore there is break in leave from 1/4/2010 to 20/4/2010 or for that matter up to 30/4/2010.

Now this break in leave would be ignored as per new guideline to be issued.

As for as your other query regarding business related absences of more than 3 moths is concerned as per current modernized guide they would not be ignored unless we guide and persuade UKBA to cater for in new guide for the following situations of longer absences :

1. Conflict of ILR guidance with Naturalization guidance. Both have qualifying period of 5 years and wherein at least 4 years overlaps (complete overlapping in HSMP JR ). For naturalization 300 absences are disregarded in all cases. Whereas absences of up to 900 days can be disregarded if for employment or business purpose. Therefore absences of 180 days for ILR as against 300 absences for naturalization is a conflict/un-reasonable and ILR absences should be in line with Naturalization

2. UK employers post applicant abroad for extended period– salary and tax is paid in UK
3. UK employers sent applicant abroad for frequent short business tours- salary and tax is paid in UK
4. Self- employed or businessman – frequent or extended business tours and income declared in UK tax returns includes income from overseas dealings – applicant and business is clearly based in UK throughout the qualifying period.
5. Absences due to compassionate nature such as maternity of applicant/spouse/partner or death of close family member of applicant/spouse/partner
6. Great variation in use of discretion by case workers
7. Case Law wherein Upper Tribunal has ignored absences of more than 2.5 years where UK company posted the appellant overseas.

[farah]

At page 20 of SET(O) question D2 and D3 pertains to absence of over 3 months at a time or over 6 months over period of 5 years.
Whereas Modernised Guide forbids any such excess.
It is another contradiction which ought to taken care while revising guide.

[isidds]

Jami,

I had an impression, reading the guidelines on calculating the absences, that if the absence can be accounted as paid annual leave/business trip they will not be counted towards the threshold of 180 days. And that Annex B, clarifies that if someone does accumulate absences of more than 180 days and has paid annual leave/business trips in the total they will be discounted and not aggravated or continuity insisted upon.

for ex: I have a total of 295 absences of which 185 are unpaid and 110 paid annual holidays. I was thinking that 110 paid holidays will be discounted and I will be remaining with 185 absences, which should not cause a great deal of concern as I am around the threshold.

Is this not the case anymore? Or was I delusional all the way to have interpreted it to suit myself even before this new modernized guide was published? Could you please help me understand this..

Thanks a ton.

Isidds

[jami]

Your understanding based on Annex.B was perfectly right. But now UKBA is withdrawing that thereafter only Modrenised Guide would be in field wherein the present language is not supportive to applicant like you.

Till date most of applicant are getting relief from case worker's use of discretion based on Annex.B. meant for Tier 1.

Lets hope that after review the modrenised guide i better than Annex.B

[isidds]

Thanks for the reply Jami.

Right, so I was correct in that, paid annual leave were discounted, atleast until now.

I am due my ILR in August and fall under HSMP JR. I am not sure what to do. Shall I take the risk and apply for ILR (with 295 absences) and include my dependents (3), all of whom arrived in this country pretty recently. And if they refuse it will cost me around 3400 quids. Or can I just apply at PEO for myself and then if I get an approval apply for my dependents?

Or shall i look forward to extend my current stay and then apply after covering the gap of 120 days?

[jami]

Blew is text of my email to UKBA and UKBA reply dated 12 July 2011 in respect of ILR absences in response to my further query:
........................

"Dear Operational Policy Team


I had made a request on 4th July 2011 under FOI Act 2000 through
Whatdotheyknow.com which has been responded by Operational Policy Team on 8th July 2011 which states that Annex.B of ID instruction on settlement is being withdrawn and the Modernised guide is being reviewed. This has prompted me to send this email directly to the Team and enumerating issues involved to be addressed in review and suggesting a draft of the revised guide.


Issues involved
1. Correction of errors in Modernised guide:
Wrong immigration rule mentioned. Relevant rule for HSMP is 135G and not 245E-F


2. Conflict of ILR guidance with Naturalization guidance. Both have
qualifying period of 5 years and wherein at least 4 years overlaps. For naturalization 300 absences are normally disregarded. Whereas absences of up to 900 days can be disregarded if for employment or business purpose. Absences of 180 days for ILR as against 300 absences for naturalization is a conflict/un-reasonable and ILR should be in
line with Naturalization.

3. UK employers post applicant abroad for extended period– salary and tax is paid in UK

4. UK employers sent applicant abroad for frequent short business tours- salary and tax is paid in UK
5. Self- employed or businessman – frequent short/extended business tours and income declared in UK tax returns includes income from overseas earnings –applicant/family and business is clearly based in UK throughout the qualifying period.
6. Absences due to compassionate nature such as maternity of
applicant/spouse/partner or death of close family member of
applicant/spouse/partner
7. Case Law.BD (work permit - “continuous periodâ€

[Valencia]

Jami I am a newbie here so please bear with my ignorance of this topic.
Could you please shed some light on my scenario.
I was moving jobs and this was causing a natural break in employment. I clubbed my annual leave with this break and travelled out of UK on holiday.The total absence was 44 day of which 25 days were unpaid as a result and the rest(19 days) was paid annual leave.Does this constitute a break for the purposes of ILR?I was still paying the rent etc in the UK for this period.
My total absences are only 85days(all of this apart from the 25 days mentioned above is paid annual leave).I expect to have another 2 weeks of paid annual leave before my application
I shall be applying as Tier 1 general immigrant.

[jami]

you are well within first limit of absences to be disregarded -- 6 month absences due to whatever reason over period of 5 years with none exceeding 3 month at a time would be disregarded for Tier 1 General

[jami]

For isidds
UKBA clarification reproduced above is encouraging.
Your business related absences can be aggregated on proper evidence.
However, your spouse/dependents have moved recently to UK therefore apply for them as well at PEO Solihull as at that PEO fee is taken after decision hence no question of losing any fee

[Valencia]

Thankyou for the quick reply.I suppose the next question for me is if my application is suitable for a PEO application or does it need decision by a senior official meaning I should apply by post?
Any views please?

[jami]

Very straight forward case - Fit for PEO

[monashtez]

Dear Jami,
I know each one of us is in a different situation. I have tried to read the guidance 2-3 times, but all is clear as 'mud'! its probably me who cannot interpret the things correctly. I shall try and describe my case breifly and shall eagerly wait for comments-


My initial HSMP was for 2 yrs from 16th February 2007-16th February 2009. Then this was transferred to Tier 1 for further 3 years and I shall be eligible for ILR by 17th January 2012.

I need to ask few of my doubts regarding the same:

1. I work as a doctor and have been in continuous employment all the time. I have been to India and US on paid annual leave for short durations. One of these trips for about 17 days was when my grandmother was quite ill in India and another (later in the same year) was for bereavement purposes (6days) when she sadly passed away. The duration of my absences at present is totalling to 172 days (this is including the 17 + 6 das mentioned above). I am also getting married in November 2011 and am unsure as to how many days I should take off. From paid annual leave point of view it’s not a problem, it’s just that the duration shall exceed 180 days. I this going to be a problem?

2. I have been told that the day one has left UK and the day one has returned, are not counted as days abroad?

3. My PAID ANNUAL LEAVE shall not be discounted from 180 days. Is this correct?
regards
Manan

[jami]

both ID instructions and Modrenised guide can be interpreted in more than one way and probably that is why decisions of case workers are not uniform.
Hopefully shortly these would be made more clear.

Your annual leave absences from UK of 149 days (172 minus 23) should be disregarded being with in 180 days and your compelling absences of 23 should be aggregated.

Hence I per my understanding you are pretty safe and can further avail 30 days leave for marriage

[jami]

UKBA clarification says that "secondments" are not to be disregarded from absences. There is no definition of "secondments" in UKBA website. However in a guidance at http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

though the concept has been explained in another context yet is useful for understanding

[HSMPgafla]

Hello Jami,
What about case like mine.
I have been out form UK at a streach 105 days. Out of which first 17 days were paid leave as I was on garden leave (made redundent). So my unpaid leave will be 88 days.
Will it be a break on continuty of 90 days?

[jami]

any thing over 3 months at a time should be justified with proper and strong evidence

17 paid leave to be disregarded --- supported by employer letter
88 absences to be aggregated---- compelling circumstances --- think what evidence you can gather other than redundancy.

in those absences look for your evidence of continued ties in UK

[Sushil-ACCA]

SOME case oficer r not bother to see that overall abscense is less than 180

in that scen u will through ,

no harm in trying , at least it will finalise yr situation

[MPI]

Hi Jami , glad i found this topic , perhaps you can help me as well :

2 years back I was suspended by my employer on full pay ( it was contractual issue and their fault therefore they accepted to pay me till case clarifies )

So I left the country for 120 days . I haven't exceeded my total 180 days in 5 years yet , but as I still have 2 years to ILR , I need to plan really how much I have got left.

I was fully paid during the 120 day absence and I do have the letter from employer saying they suspended me and their fault so I can do anything I like during the period.

so
1- Would my 90+ single absence be justified?
2- if so , how many days is left for me ? 180 or 60?

thanks

[ITGraduate]

Dear Jami,

First off all let me apologise if I'm asking a repeated question. But as many of them I'm too a bit confused with the guidance available. I have already read it 3 times but still cant stop myself thinking about my issues. Please help?

My situation - I'm self employed in UK since Sept 2010 and pay tax and NI in UK( registered as sole trader ) working for an American company. The American company dont have a office here. I invoice them every month and they pay my salary on to my current account every month. I am on Tier 1 General going for ILR soon.

1- I've travelled outside UK since 2007 for 290 days until today. Out of which 123 days were for holidays to my home country. ( maximum stretch was 63 days) and I also travelled 167 days for business for my american company ( maximum stretch was 11 days ) . Will it be a problem for me while applying for ILR as I'm outside the 180 day rule?

2- I've been outside UK for personal holidays for 123 days which were paid holidays from my previous employer ( NHS Trust ) which I can prove.so will these be disregarded from my total 290 days?

3- I've got letter from my american company for whom I go out of UK for all my absences outside UK. Will that be enough as a proof from the american company alone? ( that company has no offices in UK and use me as an independent consultant in UK and Middle East )

Many Thanks in advance Jami and waiting anxiously for your response

Kind Regards,

Rafi

[jami]

Hi"MPI"

My opinion on your quires:
1- Would my 90+ single absence be justified?

Absence of 120 days is apparently not justified. But you can improve your chances by claiming these under compassionate circumstances and producing evidence in support thereof and evidence of your continued ties with UK in that period


2- if so , how many days is left for me ? 180 or 60?

Your chances would be further improved if you assume that you have 60 left for remaining 2 years

[jami]

Hi"staffordjafar"



1- As per my opinion your 290 absences would not pose any problem rather it is straight forward case fit for same day service

2- 123 paid holidays would be disregarded being consistent with annual paid leaves.

3- 167 days business related absences would be disregarded as well being compulsion of job. Evidence mentioned is more than sufficient.

Over and above that evidence that through out 5 years you have continued to be based in UK must be filed

[sandeepmdi]

Dear Jami,

This was really helpful for my understanding. Thank you. But i still need one clarification. As i understand the guidance covers 3 situations:
1. Short absences abroad which are consistent with annual paid leave and business trips. There seems to be no limit to these so these can be as many days as long as you can provide evidence. In this case whether the total number of short absences are greater than or less than 180 days should not make a difference as in each case you should ideally need to provide evidence as 180 days limit is not mentioned for this clause. Why then people who have more than 180 days on short absences worried while those have less than 180 days on short absences are not worried.

2. For breaks in leave within UK there is 180 days limit which is clear.

3. For longer absences (presumably above 90 days) for personal or business, there is discretion.

What about cases which are short absences from UK but which are niether paid leave nor business trips? as per current guidance this should have lead to break in continuous residence but many people who were unemployed and out of UK for certain period but their total absence was less than 180 days have been able to get the ILR. Is this not a conflict?

Finally, for calculating your absences from UK, is the date of arrival and departure excluded or included?

Keen to hear your thoughts on this.





[quote="jami"]I wrote to UKBA on the subject under Freedom of Information and blew is text of my request and UKBA reply:
-------------------
Dear UK Border Agency,

There appears to be errors in UKBA modernized guideline titled " Indefinite leave to remain - Calculating continuous stay in UK". The relevant extract is as under:

"Discretion in cases where continuous residence has been broken
Time spent here may exceptionally be aggregated, and continuity not
insisted upon, for cases where:

• There have been no absences abroad, see calculation of the five
year period for settlement, and authorised employment or business
in the UK has not been broken by any interruptions of more than
three months or amounting to more than six months in total for the
whole five year period.
Decisions in such cases must be taken at HEO level or above.

Or

• There have been longer absences abroad, provided the absences
were for compelling grounds either of a compassionate nature or for
reasons related to the applicant’s employment or business in the
UK. No single absence abroad must be for more than three months at
a time and they must not total more than six months.
Where continuous residence has been broken, periods may be
aggregated or shortfalls disregarded only with the approval of an
SEO or Grade 7.â€