ILR - Absence and other queries

I am due my ILR application in August and fall in the category of Apr 2006 – Nov 2006 (Got initial HSMP approval and stamping in August 2006).
I have read a lot on this forum about different issues (HSMP JR + filling section 3 and section 10G) which could affect my application and got answered satisfactorily (Thanks to all those who take time to contribute).
I have a few question and will be really grateful if anyone can help answer them or guide me in the right direction.

1. Since August 2006 (when I got my HSMP) I have been out of country for 320 days in total (of which 197 were unpaid holiday and 123 paid annual leave). I emailed HO back in 2010 to enquire about Absence from UK calculation and got a reply confirming, I am allowed 180 days unpaid leave outside UK without breaking any general grounds for refusal. Has anyone had such a scenario and had their application either approved/rejected based on this?
2. My wife and children arrived in UK recently (last month) and would not meet the criteria (2 years) for ILR dependent application. Should I still go ahead and include them in my ILR application? Or apply on FLR(M)? And if I should apply on FLR(M), then can I send their application together with mine?
3. I don’t remember exactly but I vaguely remember reading on this forum that instead of FLR(M) we can also apply for my dependents as PBS Dependents and get an extension for 2 years, is it ok to do so?

I am really sorry if the question were already asked and answered.
Thanks a lot
I Sidds

As for as i know paid or unpaid doesn't matter the only thing they look into is not more than 180 days and not exceeding 90 days in a one go.

The only exclusion is business trips and any genuine reason.

I am in the same board with 269 days


QN: If for suppose they say you have been more than 180 days and need to apply after so and so date do i still need to pay the fees and also do they give the result on the same day even after they are not satisfied.

Please put your experiences.

Regards
Salina02

Salina,

I am not sure if I can use it as an evidence but as I said I emailed them a while back in 2010 and they replied confirming that, 180 days are not including paid leave and business trips.

Here is an excerpt.
"Dear Sir/Madam,
Thank you for your enquiry.
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.
Yours faithfully,
Rez Jason
Immigration Group
UK Border Agency
If you intend to reply to this e-mail please ensure that you re-send all the information from your original enquiry."



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Thank you for your enquiry.
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.

This is interesting. It says that your entire legitimate holiday/business period will not be counted, YES take it as evidence and use it!!
This doesnt appear however in any case worker guidance I have come across.
However in most cases they are interested only in any single absence exceeding 3 months.

Hello isidds,

May I please request you to send me the email ID you wrote your query to.

I am also in a situation of more than 90 days absence in one go and would like to get a simlar reply to substantiate my application.

Thanks & Regards,
pb

Hi Pbat,

I was not out of country at any time for more than 90 days, but my total number of absences are more than 180 days. Anyhow, the emails are below:
UKBApublicenquiries@ukba.gsi.gov.uk, ukbanationalityenquiries@ukba.gsi.gov.uk

gidoc,

Thanks for replying. Could you please reply on point 2 & 3.

On what date did your dependant(s) enter UK? When does the dependants' current leave expire?

Thanks for replying Sushdmehta.

My wife first came to UK in July 2008 and went back to India in Nov 2008. She came back this month (May 2011) with my two kids (20 months and 6 months) both born in India.

With me on Sep 23 2011.

Hi Sushdmehta,

Thanks for your reply. Sorry but I don't get it completely.

1. I have read other forum topics for ILR dependants and I gather that my wife is covered as a dependent of HSMP or ILR JR (for pre Nov 2006 applicants) and would not require her to be in UK for full 2 years to qualify?
2. She first came to UK in July 2008, we applied for her Entry Clearance on VAF2 and paid HSMP dependant fee only (£200). But she later had her visa extended with me in UK to Tier 1 General under HSMP JR. Does she still need to apply FLR (M) or include in my ILR application as dependant?
3. Are my children exempt from any such criteria then?

Aplogies, failed to notice the critical information that you are covered by HSMP JR. Please ignore my earlier response (now deleted to prevent anyone getting confused because of my mistake).

As per law, your wife qualifies for settlement at the same time as you - irrespective of her length of stay in UK or absences from UK. But whether UKBA will accept that she qualifies and grants her settlement is another matter.
e.g. -
ILR FOR DEPENDANT AS PRE HSMP JUDICAL REVIEW
HSMP JR ILR Application - Dependent Visa Rejected

Given the trend, you may wish to consider applying for settlement through a competent solicitor.

Thanks for your suggestion Sushdmehta.

I have contacted a OISC approved immigration advisor and I am waiting for her response. I will post it here for everyone's reference.

Finally, I had replies back from both the immigration advisor and the Solicitor. Here is what they said:

Immigration Advisor: They advised me to apply for extension of my current leave rather than applying for ILR and cover the period of over absences out of UK. And they are sure they can get ILR for my dependants irrespective of their length of stay in UK (as per them, 2 Years is for PBS Migrant Dependants) when I do. Just need some cohabitation proofs since their arrival.

Immigration Solicitor: Go for extension of current leave to cover the absences and then apply ILR. Dependants have to complete 2 Years in UK. No other way.

Nothing different to what has already been said and discussed in this forum. But, atleast I have made up my mind to extend my current leave to cover for the period of over absences (140 days) and then apply for ILR.