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180d absent rule excluding business trips&annual leave?

Only for queries regarding Indefinite Leave to Remain (ILR). Please use the EU Settlement Scheme forum for queries about settled status under Appendix EU

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dejavu
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180d absent rule excluding business trips&annual leave?

Post by dejavu » Mon Feb 13, 2012 2:45 am

First may I thank everyone in advance for any comments or advices.

As you might have noticed UKBA <UKBApublicenquiries@ukba.gsi.gov.uk> no longer replies to emails :(

I have a classic question to do with the 180d absent rule for HSMP/Tier1 applying for ILR. Business trips can be excluded, but what about annual leaves?

I have asked UKBA the same question in Oct 2011 and here is the email response:
==============================================
Dear Sir/Madam,

Thank you for your enquiry.

One of the main requirements relating to settlement on the basis of the Highly Skilled Migrant Programme HSMP) / Tier 1 (General) visa category is that the applicant has spent a continuous period of 5 years in the United Kingdom in this capacity.

Time spent out of the United Kingdom may be discounted if it is for paid annual leave or business trips that are necessary due to employment commitments. If the absence from the UK is during a period of unpaid leave, it is not discounted and will be used in calculating absences when considering an application for Indefinite Leave to Remain.

Any absences other than paid annual leave or necessary business trips should not exceed 3 months at a time or 6 months in total over the 5 year period.

However, if there were exceptional compassionate or compelling circumstances relating to why you would need to leave the UK for a prolonged period, this would be taken into consideration by the settlement caseworker - although we would be unable to guarantee the outcome of such an application.

I hope that this is of some assistance to you.

Yours Faithfully,


==============================================

So I assume the correct way to calculate 180 days is to exclude business trips AND annual leaves?



=======================
Now this is my situation:

=======================
My uk visa permits are as below:
HSMP - 13/06/2008 to 09/06/2010
Extended Tier 1 - 28/04/2010 to 09/06/2013

Next year Jun I will be applying for indefinite leave to remain. I have two concerns:
1.HSMP+Tier 1 covers 13/06/2008 to 09/06/2013, it does not cover 10,11,12 jun 2013, will the 3 days missing be counted as not covering the full 5 years?My initial HSMP application was made in 01/04/2008.

2. Question related to days absent for continous 5 years calculation:
During the past 3 years and 8 months I have been away for 249 days . According to UKBA's Oct 2011 email, annual leave and business trips can be discounted, and the rest of the days away must be under 6 months with no single trips longer than 3 months.

Travel is my greatest hobbie and I have been to around 80 countries. I have always taken annual leaves (each year I have 25 days) in conjunction with public holidays, and made lots of weekend trips to Europe.I quite often fly in and out before or after work. There is no single trip over 3 months or unpaid leaves except the 4 days compatienate leave to attend funeral oversea.

Here is the break down of my total 249 days:
Annual leave: 112 days
Business trips: 7 days
Compatienate leave: 4 days
weekend and public holidays in conjunction with annual leave: 118 days
Airport in/out :8 days

- Can anyone advice if it is correct to say I have been away for 126 days excluding annual leave,business trip and compatienate leave,hence havent exceeded the 180 days limit?
- What evidance do I need to provide for compatienate leave? Is employer's letter sufficient? Or do I need my Auntie's death certificate included?
- The 249 days were calculated according to passport stamps. There are stamps made before or after my working hours (early or late flights), they are not full days but merely few hours in/out the airport, hence I didn't need to apply for annual leaves. Do they count towards the 180 days? Do I need to provide airtickets as proof to argue otherwise?


I need to work out if I am allowed to travel more for the next one year and 4 months before applying for ILR...... More importantly, my mum is going pass Norway for work end of this month from New Zealand, it will be ashame if I can't go and see her there to catch up!! .......thanks everyone!!
Last edited by dejavu on Mon Feb 13, 2012 8:07 pm, edited 1 time in total.

the_ilr_boy
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Post by the_ilr_boy » Mon Feb 13, 2012 7:15 pm

I am currently on 195 days so in a similar situation. I called and spoke to UKBA today and was advised that over 180 days you need an explanation for why you have exceeded.
I was also informed that in these scenarios, it is likely that the case officer may not approve the application on the day, may take it to essentially be a postal application which can take up to 6 months for approval.
Not sure if anyone has any experience of this actually happening, but this is what I was told.
If this is the situation, then in my case, by the time I got a decision the original visa would have expired so in the case the ILR application was rejected I would need have to return to the country who issued my passport and apply for a new visa .... which would also mean starting your qualifying period again as the continuous residence would have been broken.

dejavu
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Post by dejavu » Mon Feb 13, 2012 8:08 pm

thanks for sharing your experience ilr_boy.
What confused me is from the email in Oct 2011 I got the impression that paid annual leaves and business trips are disregarded.
But I am not clear if it is really the case?

I did some research and if absents exceed 180d, case worker might have to hand it to a senior case worker, if none around that day , tough luck, i guess that is why it will be delayed....

sunil.suneel
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Post by sunil.suneel » Thu Feb 16, 2012 11:59 am

dejavu wrote:Hi, can paid annual leave be discounted as well as business trips?


I have a total of 249 days absent. The breakdowns are:
Annual leave: 112 days
Business trips: 7 days
Compatienate leave: 4 days
weekend and public holidays in conjunction with annual leave: 118 days
Airport in/out :8 days

Am I right to say I am still within the 180d limit if annual leaves and business trips are discounted?

I work for the same company for the past 5 years and had no unpaid leaves.

Also I dont see the 180days rule being mentioned anywhere for HSMP/Tier 1 General in the guidance notes for Set(o)/ilr-calculating-continuous.pdf. But in Set(o) form it asks for 'not >180d for any continous 12 months'?

I really need some help urgently! thanks.

sunil.suneel
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Post by sunil.suneel » Thu Feb 16, 2012 12:04 pm

dejavu, you have listed two sets of annual leaves:

Annual leave: 112 days
weekend and public holidays in conjunction with annual leave: 118 days


How are going about splitting these, cos this can be very confusing to case worker, if you present it this way ...

Also you don't have to count the travel dates towards the absence so drop that column.

Unless you clarify, I am not sure how you can justify 112+118 days of annual leave in 5 years ?

JPUK
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Post by JPUK » Sun Mar 25, 2012 2:50 pm

Hi all

I have read quite a lot on the 180 day issue, and just when i think i have my answer I come across another post, though hoping this will confirm my eligibility for ILR.

In my 5 years I have been out of the country for 206 days (excl travel day). This was over 38 trips to Europe etc and most were weekends with a couple of 7-10 day trips, but for 1 extend holiday of 55 days between employment, which I believe in itself would not constitute a break in residency??.

I have been employed by only two separate employers here, though only 18 months of that was under a permanent employment agreement which entitled me to annual leave. My schedule includes 45 days during this permanent employment, therefore am I correct in thinking (per dejavu's UKBA email) I can exclude these days, reducing my count to 161 days?

I have resided in the same residence over my five years, and continued to pay rent & bills even whilst travelling, and have continued to be domiciled in the UK for HMRC taxation purposes. Would the UKBA take such factors into consideration when deciding.

Thanks in advance for any clarification you may be able to provide.

youoz
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Post by youoz » Mon Mar 26, 2012 1:54 pm

Dejavu - thought I should share with you my recent experience of this.

Like yourself I've travelled a fair amount in the past 5 years and like you, practically all taken as annual leave days / weekends / public holidays and they all totalled to 240 days out of the UK.

HO are now applying the 180 day absence rule more strictly in the sense that if you make an appointment at a PEO for a face to face interview and you've been out of the country for >180 days (for whatever reason), the CW cannot decide your case there and then and it must be a postal application and it becomes a "discretionary" decision to be made by a senior CW. This happened to me in late Feb this year when I went to the PEO. The CW verbally said to me that it was a recent internal email that they received on this topic and this is how HO will process ILR applications going fwd where there's been absences > 180 days (for whatever reason).

I've yet to hear back on my postal application (and from all accounts it can take up to 6 months! :cry: ) so cannot tell you how it has gone. What I can pass on is the 180 days is counted very much black and white and what I am presuming the senior CW may do in assessing your application (this is the discretionary bit I presume) is consider why you've been out of the country for more than 180 day, the duration of each of your trips etc etc That is not to say that you can for sure exclude business days, annual leave days, public holidays etc ... but I'm hoping that if you can show that your trips are short ones (eg. w/end or long w/ends) or 1-2 weeks in line with how the British takes their holidays it may be ok. That's just my experience of this so far. Hopefully that helps you.

[/quote]

chosenaik
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Post by chosenaik » Mon Mar 26, 2012 2:19 pm

I have email communication from UKBA and have also consulted solicitors. There is no ambiguity if your days absent from UK are in line with paid annual leave and / or business trips that were required as part of your employment.

Any other days are subject to discretion.

ranga_12345
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Post by ranga_12345 » Mon Mar 26, 2012 7:06 pm

chosenaik,

Could you share the email from UKBA please? My ILR application was rejected as I had broken 180 day rule and 90 day rule. I had two absence of more than 90 days and this was a business trip. While calculating the absence the case worker listed all in a spreadsheet and counted the number of days. I had provided letter for employer detailing the business travel dates and why I had to travel. This clearly did not worked for me.

chosenaik
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Post by chosenaik » Tue Mar 27, 2012 11:11 am

Dear XXXX,

Thank you for your email.

Decisions on whether continuous residence has been broken are assessed by a caseworker when an application for settlement is made taking account individual circumstances.

The caseworker may disregard short absences from the UK for the purposes of calculating the period of continuous residence in the UK for;

• Holidays (consistent with annual paid leave); and
• Short business trips.

Such absences may be disregarded provided that the application has clearly continued to be based in the UK.

Longer absences of up to 3 months, and amounting to no more than 6 months in total, may be disregarded in certain compelling or compassionate circumstances.

The UKBA guidance does not set out a specific upper limit on the amount of time an applicant can spend outside of the UK during their paid annual leave, as we recognise that the amount of paid leave will depend on the type of employment and the terms and conditions of employment of each individual. Case workers will assess each application on a case-by-case basis and may request further information if they consider that the amount of time outside of the UK claimed as annual paid leave is excessive. If you are concerned that your annual leave entitlement may be considered to be very generous, it would be advisable for you to submit evidence of your entitlement with any application for settlement, for example your contract of employment detailing your annual leave entitlement.

With regards to business absences, the guidance allows for short business trips to be disregarded for the purposes of calculating continuous residence in the UK. It should be pointed out that secondments and postings abroad are not considered to be business trips and will not ordinarily be disregarded for the purposes of calculating continuous residence in the UK. It may be advisable to provide evidence from your employer certifying that you were required to make any short business trips if you are concerned that this may effect your application.

Where shorter absences for holidays or business trips are disregarded in line with the guidance above, these absences do not count towards any upper limit. The limit of 180 days/6 months applies only to longer absences where discretion has been applied to disregard the absence on compelling or compassionate grounds.

I hope that this information is helpful to you.

vinaybegitam
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Re: 180d absent rule excluding business trips&annual leave?

Post by vinaybegitam » Fri Apr 11, 2014 1:33 pm

Hi youoz,

What has happended to your ILR? Have you been successful in getting ILR?
I am in a very much similar situation where I have 184 days outside UK and the leave is without visa.

Thanks,

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