Immigrationboards.com

Posted: **Tue Jan 22, 2013 12:11 am**

Dear Friends,

I have recently heard of the new UK BA rule re. absences and read a few similar threads on this forum. However, my case noted below, is slightly complex, and therefore it would be really helpful, if the experienced members on this forum are able to provide their opinion re. my case please.

Application for: ILR
To be made in: May 2013
Currently on: Tier 1 (General) visa [been on Tier 1 (General) visa since first UK entry]

Periods and corresponding absences:
May 2013 to May 2012: 31
May 2012 to May 2011: 32
May 2011 to May 2010: 16
May 2010 to May 2009: 64
May 2009 to May 2008: 0

However, my visa was stamped on 27 May 2008, but I entered UK on 29 September 2008. This delay (of about 4 months / 120 days) was due to a job offer being deferred.

Under these circumstances, would you consider it appropriate to apply for ILR in May 2013?

Thanks!

Posted: **Tue Jan 22, 2013 12:15 am**

No

Read the Continuous Residency document from the useful links page below.

Posted: **Tue Jan 22, 2013 12:22 am**

thanks.

please could you explain why would it not be appropriate to apply for ILR, as I have just read the rules and can't seem to understand. Obv, I think I am missing something.

Posted: **Tue Jan 22, 2013 12:36 am**

If your first entry is after 90 days of visa stamp, then your count begins from entry date. Page 12 of the earlier referred document.

Posted: **Tue Jan 22, 2013 7:06 am**

NeedHelpThisTime,

Also, the 180 days permitted out of the country is for absence and not for delayed entry. Delayed entry is allowed for 90 days.

Thanks!

Sohel

Posted: **Tue Jan 22, 2013 12:30 pm**

Thanks for your responses.

I have just spoken to two solicitors and additionally confirmed the *debated* point re. absences / delayed entry with a colleague who has got his ILR stamped a week back.

wpilr_nov12: Pg 12 reads "The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period, as long as it does not exceed 90 days. This can occur if the applicant is delayed travelling to the UK. Provided the period of delay does not exceed 90 days, it will not be counted as an absence."

so it doesn't say what your statement says "If your first entry is after 90 days of visa stamp, then your count begins from entry date. Page 12 of the earlier referred document."

uksettlement/Sohel: "Also, the 180 days permitted out of the country is for absence and not for delayed entry. Delayed entry is allowed for 90 days." This interpretation is questionable as there are no words such as 'allowed' used in the UKBA doc. If you were to reword the last line, which is:"Provided the period of delay does not exceed 90 days, it will not be counted as an absence" it could also mean: if the period of delay exceeds 90 days, it will be counted as absence. But that wording is questionable again!

As confirmed to me by the two solicitors and the colleague (who was 112 days delayed in entering UK from the date of stamping), according to their experiences:

1. a max of 180 days absences are allowed in a year and
2. if the period between the date of stamping to date of entry exceeds 90 days, it is counted as absence, which again could be a max of 180 days.

Don't know how true this is, but I am just playing devil's advocate here.
Thanks!

Posted: **Tue Jan 22, 2013 12:52 pm**

NeedHelpThisTime wrote:Thanks for your responses.

I have just spoken to two solicitors and additionally confirmed the *debated* point re. absences / delayed entry with a colleague who has got his ILR stamped a week back.

wpilr_nov12: Pg 12 reads "The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period, as long as it does not exceed 90 days. This can occur if the applicant is delayed travelling to the UK. Provided the period of delay does not exceed 90 days, it will not be counted as an absence."

so it doesn't say what your statement says "If your first entry is after 90 days of visa stamp, then your count begins from entry date. Page 12 of the earlier referred document."

uksettlement/Sohel: "Also, the 180 days permitted out of the country is for absence and not for delayed entry. Delayed entry is allowed for 90 days." This interpretation is questionable as there are no words such as 'allowed' used in the UKBA doc. If you were to reword the last line, which is:"Provided the period of delay does not exceed 90 days, it will not be counted as an absence" it could also mean: if the period of delay exceeds 90 days, it will be counted as absence. But that wording is questionable again!

As confirmed to me by the two solicitors and the colleague (who was 112 days delayed in entering UK from the date of stamping), according to their experiences:

1. a max of 180 days absences are allowed in a year TRUE and
2. if the period between the date of stamping to date of entry exceeds 90 days, it is counted as absence, which again could be a max of 180 days NOT SO SURE.

Don't know how true this is, but I am just playing devil's advocate here.
Thanks!

You could try your luck. And update us on the outcome. There are a lot of people who would benefit from your interpretation/understanding being actually applied. And who knows, you may have been right all along.

Posted: **Tue Jan 22, 2013 3:18 pm**

NeedHelpThisTime wrote:Thanks for your responses.

I have just spoken to two solicitors and additionally confirmed the *debated* point re. absences / delayed entry with a colleague who has got his ILR stamped a week back.

wpilr_nov12: Pg 12 reads "The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period, as long as it does not exceed 90 days. This can occur if the applicant is delayed travelling to the UK. Provided the period of delay does not exceed 90 days, it will not be counted as an absence."

so it doesn't say what your statement says "If your first entry is after 90 days of visa stamp, then your count begins from entry date. Page 12 of the earlier referred document."

uksettlement/Sohel: "Also, the 180 days permitted out of the country is for absence and not for delayed entry. Delayed entry is allowed for 90 days." This interpretation is questionable as there are no words such as 'allowed' used in the UKBA doc. If you were to reword the last line, which is:"Provided the period of delay does not exceed 90 days, it will not be counted as an absence" it could also mean: if the period of delay exceeds 90 days, it will be counted as absence. But that wording is questionable again!

As confirmed to me by the two solicitors and the colleague (who was 112 days delayed in entering UK from the date of stamping), according to their experiences:

1. a max of 180 days absences are allowed in a year and
2. if the period between the date of stamping to date of entry exceeds 90 days, it is counted as absence, which again could be a max of 180 days.

Don't know how true this is, but I am just playing devil's advocate here.
Thanks!

I would be interested to find out the outcome of your application, if you do consider the time between EC & date of first entry towards your 5 year residence.

It is interesting what you say about your colleagues case. My understanding of the purpose of the following statement, in the past was that it was introduced by the UKBA to accomodate applicants who would have been granted LTR for the exact residence period required, & therefore to avoid them having to extend their LTR to cover a few extra months they decided to allow a reasonably short delay (i.e. 3 months) in entry to be counted towards their residence period. "The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period, as long as it does not exceed 90 days. This can occur if the applicant is delayed travelling to the UK."

This rule however has been used by most applicants including those who have over and beyond the required LTR to cover their residence period as well.

The statement which I feel may give what you say a chance is "Provided the period of delay does not exceed 90 days, it will not be counted as an absence". This is something new in the guidance released in December 2012 and to me, initially appeared to be, a slightly strange statement based on my former understanding. I.e. how can that period be considered an absence when you would have had to have entered the UK, in order to be absent in the first place.

It appears that the initial intent and how the rules and guidance are worded today are rather different, and subject to individual interpretation.

Do let us know the outcome of your application once you have applied, as I'm sure this will be useful for others who are in a similar situation to you in the future.

Posted: **Thu Jan 24, 2013 9:16 pm**

@NeedHelpThisTime

Thanks for raising a interesting view point and opinion and if you are successful, then it would help lot of people who are in similar situation.

All the best in your application and please keep the forum updated.

Posted: **Thu Jan 24, 2013 9:29 pm**

@NeedHelpThisTime

One more request if it is not a problem.

Could you share more details about your colleague who has ILR granted despite 112 days of delayed entry. May be this itself will clarify the interpretation of this point.

Many thanks once again.

Posted: **Fri Jan 25, 2013 12:36 am**

NeedHelpThisTime wrote: 2. if the period between the date of stamping to date of entry exceeds 90 days, it is counted as absence, which again could be a max of 180 days.

Before you consider the "absence", look at the basic requirement for ILR : "the applicant must have spent a continuous period of 5 years lawfully in the UK"

Unless someone actually enters to the country, how can s/he claim to start the qualifying period? and, unless you start the qualifying period, the absence is meaningless. However, UKBA has relaxed the rule and allowing applicants to kick off the continous residence clock even before entry to UK as long as the gap was not more than 90 days.

Posted: **Fri Jan 25, 2013 1:11 am**

NeedHelpThisTime wrote: As confirmed to me by the two solicitors and the colleague (who was 112 days delayed in entering UK from the date of stamping), according to their experiences:

As it has been mentioned quite a few time on this forum not all solicitors are always right so please be careful when selecting the solicitor to represent yourself

Posted: **Tue Feb 05, 2013 12:32 pm**

Dear NeedHelpThisTime

Any updates regarding this debate? Have you seen any other person who confirms that they have got their ILR even if their initial entry was more than 3 months after their visa?
Did your colleague (who was delayed 112 days) use any solicitors? If so may I have the details of that solicitor as I entered the UK 93 days after my visa and including that all my absences is just 200 days (of which 24 days were for business trips so only 176 days absence)

Thanks,
Mah

Posted: **Tue Feb 05, 2013 1:57 pm**

The UKBA response to the recent question raised in the following topic may be informative: http://www.immigrationboards.com/viewto ... ht=#778163

Posted: **Tue Feb 05, 2013 2:29 pm**

Thanks cs95tdg!

Posted: **Mon Feb 25, 2013 4:23 pm**

Please share your results, I am on same boat and my delay was due to compasionate reason don't know whether I can avoid another extension

Posted: **Sun Mar 10, 2013 9:34 pm**

madhumesh wrote:Please share your results, I am on same boat and my delay was due to compasionate reason don't know whether I can avoid another extension

As you know, my initial entry was 3 months + 1 day after my visa stamped. My solicitor said he sees no problem applying directly for ILR as my total absences from the UK including the late entry was less than 180 days but this is my game to apply for 2nd extension or ILR. I wanted to be safe so am applying for second extention this week.

Regards,

Mah

Posted: **Mon Mar 11, 2013 11:18 am**

mah wrote:
madhumesh wrote:Please share your results, I am on same boat and my delay was due to compasionate reason don't know whether I can avoid another extension
As you know, my initial entry was 3 months + 1 day after my visa stamped. My solicitor said he sees no problem applying directly for ILR as my total absences from the UK including the late entry was less than 180 days but this is my game to apply for 2nd extension or ILR. I wanted to be safe so am applying for second extention this week.

Regards,

Mah

I don't know how your solicitor interpret the law, I have the same situation and ask home office directly to explain and here is the response

Posted: **Mon Mar 11, 2013 9:09 pm**

go2khurram wrote:
mah wrote:
madhumesh wrote:Please share your results, I am on same boat and my delay was due to compasionate reason don't know whether I can avoid another extension
As you know, my initial entry was 3 months + 1 day after my visa stamped. My solicitor said he sees no problem applying directly for ILR as my total absences from the UK including the late entry was less than 180 days but this is my game to apply for 2nd extension or ILR. I wanted to be safe so am applying for second extention this week.

Regards,

Mah
I don't know how your solicitor interpret the law, I have the same situation and ask home office directly to explain and here is the response

I got the same reply from UKBA and I decided not to apply for ILR, but still the solicitor believes that the UKBA email is not by immigration officers but by some admin people.
But as you see, I did my own way.

Immigrationboards.com

Query re. delayed entry and the New 180 days absence rule

Query re. delayed entry and the New 180 days absence rule