ILR Application Rejected In spite of letter from Employer

Hi There,

My ILR application has been rejected due to exceeding number of absences of more than 180 days in two out of 5 years. My absences were work related and I had provided letter from the employer with complete dates of work related absences and paid leaves taken away from the U.K. I also provided home office with pay slips, P60's and work contract documents yet home office has rejected my application.

I have been told that only absences related to Ebola virus would be considered and not work related absences. The guidance notes on calculating continuous stay mentions that home office would consider work related absences provided all proofs are submitted.

Can any body guide me. I have 5 more days to appeal.

lalvith04 wrote:home office would consider

"Consider" does not necessarily mean "accept".

How many days of absence do you have per year?

If you were close to 180, the Home office could exercise some discretion.

But if it is well in excess of that figure, the Home Office may not consider that you are sufficiently settled in the UK to grant ILR.

And that you exceeded the limit in 2 years, is also a negative factor.

A detailed explanation from employer that you were the only suitable employee in the organisation to carry out the work overseas, and no other suitable resource could have done the assignment, may help in appeal.

Hi Simon,

The refusal letter refers to paragraph 245AAA which refers only to absences related to Ebola virus began in 2014 and home office reply is paragraph 245AAA does not refer to work related absences and hence refused.

See extract from the document shown below
https://www.gov.uk/government/uploads/s ... .0_EXT.pdf

Absences which will not break continuity in the continuous period
Allowable absences
Absences must be for a reason consistent with the original purpose of entry to the UK or for
a serious or compelling reason in the following categories:
Tier 1 (General)
 Tier 2 (Intra-company transfer)
 Tier 2 (General)
 Tier 2 (Minister of religion)
 Tier 2 (Sportsperson)
 Tier 5 International Agreement (private servants in diplomatic households granted
under rules in place before 6 April 2012 only).

Absences linked to reason for being in the UK – evidential requirements
For all other categories, absences must be consistent with or connected to the applicant’s
sponsored or permitted employment, or the permitted economic activity being carried out in
the UK, for example, business trips or short secondments.
This also includes any paid annual leave which must be assessed on a case by case basis
and should be in line with UK annual leave entitlement for settled workers. For example,
the statutory leave entitlement is 5.6 weeks’ paid holiday each year, which for workers who
work a 5 day week is 28 days’ paid leave. However, many employers provide 25 or 30 days’
paid leave a year, plus bank holidays.
Short visits outside the UK on weekends or other non-working days are consistent with the
basis of stay and do not break the continuity of leave. You must count such absences
towards the 180 day limit.
Evidence in the form of a letter from the employer which sets out the reasons for the
absences, including annual leave, must be provided. Where short visits outside the UK, on
weekends or other non-working days have taken place, evidence from the employer should
be provided to confirm the applicant’s normal working pattern and show the absences
occurred during a non-working period. Tier 1 (General) applicants who are self-employed or
in business must provide a letter of explanation of their business-related absences.
However, time spent away from the UK for extended periods, particularly if the business no
longer exists, would not be allowed.

My first entry to the UK was on 24 September 2006 and I was away from the UK for 2 years from 2010-2012 and for the last 3 years I am in the U.K

Regards,
Lalit

So where does it say that letter from employer will absolve you from failing to meet the requirement?
Where is the evidence of serious / compelling reason(s)?

I was away from the UK for 2 years from 2010-2012

Given that, who advised you to apply for settlement?
Do you have P60s for these 2 years? I guess not.

Hi Sushdmehta,

I was always paid in the UK bank account. I have all my pay slips and P60's for five years.

Regards,
Lalit

You were not in the UK for two years at a stretch!!! You did not mention that.

You may have been domiciled here for tax purposes, but you were clearly not resident. I would strongly suggest that you reapply when you meet the requirements or are at least close to them. In your case, it seems you will meet the requirements in 2017.

Have a word with your employer and try to avoid working outside the UK if possible for the next three years (two for ILR and one for naturalisation).

Just out of curiosity, as you don't state it, which category visa are/were you on?