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Actually, a very bad news for Tier 1 general holders

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

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Sep08T1Applicant
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Post by Sep08T1Applicant » Wed Apr 10, 2013 1:36 pm

ldbright wrote:Don't you guys find the response from UKBA worrying as it seems even you are in employment in the UK, as long as you've have a non work related absence from the UK, the continuity is considered to be 'broken'. This is worse than the letter we have get from the employer as majority of us have been outside the UK during the 5 years.

https://www.whatdotheyknow.com/request/ ... us_perio_2

"Qa. Please confirm if the ILR candidate has to be in employment in the UK while the candidate is away (absence) from UK due to
personal reasons for less than 180 days in a year?

Aa. Absences due to personal reasons are not related to work or business, therefore any time spent outside of the UK for personal reasons would break continuity, regardless of whether or not the applicant was still employed in the UK."
This is exactly what concerns me most and I did paste the same thing earlier, not sure anybody has noticed it or not. I think we should not panic but better wait and see.

snowball001
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Post by snowball001 » Wed Apr 10, 2013 1:40 pm

ldbright wrote:Don't you guys find the response from UKBA worrying as it seems even you are in employment in the UK, as long as you've have a non work related absence from the UK, the continuity is considered to be 'broken'. This is worse than the letter we have get from the employer as majority of us have been outside the UK during the 5 years.

https://www.whatdotheyknow.com/request/ ... us_perio_2

"Qa. Please confirm if the ILR candidate has to be in employment in the UK while the candidate is away (absence) from UK due to
personal reasons for less than 180 days in a year?

Aa. Absences due to personal reasons are not related to work or business, therefore any time spent outside of the UK for personal reasons would break continuity, regardless of whether or not the applicant was still employed in the UK."
I share your concern. Previously Tier 1 holders didn't need to prove their absences are work-related and I believe those who took personal leave (not paid, not exceeding 180 days in 5 years) were granted ILR. In other words, absences for personal reasons were disregarded. Now ukba is claiming something you did at the time when it was allowed is no longer considered so. Does this make sense?

ldbright
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Post by ldbright » Wed Apr 10, 2013 1:42 pm

If we look into the wording, it states that the absence 'MUST' be business/employment connected. I think this is what we should be focusing on now rather than the letter itself.

"Absences must be 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, if appropriate, any paid annual leave. Evidence in the form of a letter from the employer setting out the reasons for the absences, including annual leave, must be provided. Tier 1 (General) applicants who are self-employed or in business must provide a letter of explanation of their business-related absences. "


Sep08T1Applicant wrote:
ldbright wrote:Don't you guys find the response from UKBA worrying as it seems even you are in employment in the UK, as long as you've have a non work related absence from the UK, the continuity is considered to be 'broken'. This is worse than the letter we have get from the employer as majority of us have been outside the UK during the 5 years.

https://www.whatdotheyknow.com/request/ ... us_perio_2

"Qa. Please confirm if the ILR candidate has to be in employment in the UK while the candidate is away (absence) from UK due to
personal reasons for less than 180 days in a year?

Aa. Absences due to personal reasons are not related to work or business, therefore any time spent outside of the UK for personal reasons would break continuity, regardless of whether or not the applicant was still employed in the UK."
This is exactly what concerns me most and I did paste the same thing earlier, not sure anybody has noticed it or not. I think we should not panic but better wait and see.

suds19
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Absence during employment gap and Unpaid leaves

Post by suds19 » Wed Apr 10, 2013 2:09 pm

I think it affects those who -
1> Went outside UK (absences) while between employment
2> Unpaid leaves absence from UK

Those who went outside on annual paid leaves only or business trips has nothing to worry, only pain is in collecting letters from employer(s).

Unfortunately I have both the above cases. For absence between employment I'm trying to reason with UKBA on two fronts -
a) Tier-2 are allowed short absence from UK if the gap is less than 60 days.
b) Before I went outside UK I already had joining letter from next employer who specifically asked me to join on a particular date in future thus creating a short gap.

On Unpaid leaves front, its a challenge. I'm trying to reason with UKBA that some employer allow employee to increase their annual leave entitlement at the start of the leave year by buying more annual leaves from their flexible benefit package, thereby sacrificing some part of annual salary. Whereas some employers allow the same thing through pre-agreed and approved unpaid leaves upto a certain number of days each year and is documented in organisation HR policy. How 245AAA rule is relevant in such cases?

syedaliuk
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Re: Absence during employment gap and Unpaid leaves

Post by syedaliuk » Wed Apr 10, 2013 2:20 pm

suds19 wrote:I think it affects those who -
1> Went outside UK (absences) while between employment
2> Unpaid leaves absence from UK

Those who went outside on annual paid leaves only or business trips has nothing to worry, only pain is in collecting letters from employer(s).

Unfortunately I have both the above cases. For absence between employment I'm trying to reason with UKBA on two fronts -
a) Tier-2 are allowed short absence from UK if the gap is less than 60 days.
b) Before I went outside UK I already had joining letter from next employer who specifically asked me to join on a particular date in future thus creating a short gap.

On Unpaid leaves front, its a challenge. I'm trying to reason with UKBA that some employer allow employee to increase their annual leave entitlement at the start of the leave year by buying more annual leaves from their flexible benefit package, thereby sacrificing some part of annual salary. Whereas some employers allow the same thing through pre-agreed and approved unpaid leaves upto a certain number of days each year and is documented in organisation HR policy. How 245AAA rule is relevant in such cases?
if thats the case then 95% of us are getting rejected. As I hardly know anyone who has not taken personal leaves and gone back home.

ldbright
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Re: Absence during employment gap and Unpaid leaves

Post by ldbright » Wed Apr 10, 2013 2:25 pm

And it is the retrospective change!

We should all email UKBA/ immigration lawyers to clarify this ASAP.

Can anyone please share the UKBA's enquire email address here so that we can email them.

syedaliuk wrote:
suds19 wrote:I think it affects those who -
1> Went outside UK (absences) while between employment
2> Unpaid leaves absence from UK

Those who went outside on annual paid leaves only or business trips has nothing to worry, only pain is in collecting letters from employer(s).

Unfortunately I have both the above cases. For absence between employment I'm trying to reason with UKBA on two fronts -
a) Tier-2 are allowed short absence from UK if the gap is less than 60 days.
b) Before I went outside UK I already had joining letter from next employer who specifically asked me to join on a particular date in future thus creating a short gap.

On Unpaid leaves front, its a challenge. I'm trying to reason with UKBA that some employer allow employee to increase their annual leave entitlement at the start of the leave year by buying more annual leaves from their flexible benefit package, thereby sacrificing some part of annual salary. Whereas some employers allow the same thing through pre-agreed and approved unpaid leaves upto a certain number of days each year and is documented in organisation HR policy. How 245AAA rule is relevant in such cases?
if thats the case then 95% of us are getting rejected. As I hardly know anyone who has not taken personal leaves and gone back home.

ldbright
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Post by ldbright » Wed Apr 10, 2013 2:27 pm

Any guru here to help us clear some of the air?

syedaliuk
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Post by syedaliuk » Wed Apr 10, 2013 2:31 pm

ldbright wrote:Any guru here to help us clear some of the air?
I am afraid guru's are waiting for the PEO experiences as well.. :D

I have already started applying for jobs in India..

letmec2006
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Post by letmec2006 » Wed Apr 10, 2013 2:36 pm

This looks like UKBA IS AWAITING another judicial review. Anyone know if HSMP Forum still active

Sep08T1Applicant
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Post by Sep08T1Applicant » Wed Apr 10, 2013 2:39 pm

letmec2006 wrote:This looks like UKBA IS AWAITING another judicial review. Anyone know if HSMP Forum still active
Unfortunately, Yes I think so :(
Yes @syedaliuk
@ldbright I think we can use general enquiry one, let me find out

Tier 1 (G) go went gone :)

syedaliuk
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Post by syedaliuk » Wed Apr 10, 2013 2:43 pm

letmec2006 wrote:This looks like UKBA IS AWAITING another judicial review. Anyone know if HSMP Forum still active
Sorry but what is a judicial review
?

Is it like a judge reviews this stupid rule again?

ldbright
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Post by ldbright » Wed Apr 10, 2013 2:47 pm

I am so surprised it is so quiet on this board regarding this issue as it will affect so many people in Tier 1.

deleted_user

Post by deleted_user » Wed Apr 10, 2013 2:52 pm

I am thinking if I went for holiday to Mexico for 10 days taking paid annual leave, what kind of letter can my employer give me. They have no idea what I do when I am on leave, why should they bother? What should such an employment letter state anyway? And I have payslips for those months so does that count as evidence? I don't want to have to go back to my previous employers asking letters for holidays they have no business knowing where I went to. Doesn't make any sense. WTF.

ldbright
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Post by ldbright » Wed Apr 10, 2013 2:58 pm

This is not the worst part as you may even NOT qualified for ILR any more as in the new rule, this absence is a personal holiday rather than a business trip, therefore your 5 years continuity is broken.

dimension7 wrote:I am thinking if I went for holiday to Mexico for 10 days taking paid annual leave, what kind of letter can my employer give me. They have no idea what I do when I am on leave, why should they bother? What should such an employment letter state anyway? Doesn't make any sense.

karthikeya9
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Post by karthikeya9 » Wed Apr 10, 2013 3:02 pm

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary on the page 26 it still says

This page tells you about the continuation of lawful leave during absences from the UK.
The continuous period is maintained if:
 the applicant leaves the UK with valid leave and re-enters the UK whilst that leave remains valid, provided the absence(s) do not exceed 180 days in a relevant 12 month period.

So I assume this has to be clarified as it is contradicting with what is said in page 20 about the travel.

Sep08T1Applicant
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Post by Sep08T1Applicant » Wed Apr 10, 2013 3:04 pm

The application of these HSMP changes to those already in the UK as HSMP holders as at 7 November 2006 was ruled as unlawful in a judicial review [5] and the UK Border Agency subsequently honoured the FLR outcome of the judicial review, implementing a remedy which allowed impacted migrants, including those who left the country, to apply to have leave under the new points-based UK immigration system instated in place of their lost HSMP leave. (reference copied from Wikipedia) http://en.wikipedia.org/wiki/Highly_Ski ... _Programme

AUHS
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Post by AUHS » Wed Apr 10, 2013 3:07 pm

Guys

I think we don't need to worry too much based on the information provided by only 1 member of staff in the UKBA.
We are presuming too much !!!!!

He or She can be wrong,


We should wait for the experience by the applicants who are applying now a days.or more details clarification from UKBA itself.

suds19
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Post by suds19 » Wed Apr 10, 2013 3:11 pm

I have to politely disagree with @ldbright here. If @dimension7 had a paid annual leave, then the continuity is not broken.

@dimension7 - Employer's letter doesn't have to say what you did during your leaves. Ask them to give them a letter showing duration and category of leaves (Annual, Unpaid, Sick, Maternity, Paternity, etc.) for the entire period of your employment with them. Again not all leaves would have resulted in absence from UK, that is fine. Basically for each absence from UK in your ILR form, there should be a corresponding matching entry in letter from employer. For Business travel, there can be a separate letter as it is not a leave in the eyes of your employer.

Only the category of Unpaid leave from above breaks continuity as per new rule.

@syedaliuk - Did you mean 95% of us have either employment gap absence or unpaid leave absence in 5 years?

deleted_user

Post by deleted_user » Wed Apr 10, 2013 3:16 pm

Guys,

I have no business related leaves.

If during my paid annual leave I am not allowed to leave UK (ridiculous) and I no longer qualify for ILR, I have just saved myself paying £1400 to UKBA for an premium ILR application. I'll happily be an illegal migrant henceforth. (shows middlefinger to UKBA). LOL.

My ILR isn't due till September. So wait until then to report me to the UKBA. LOL.

ldbright
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Post by ldbright » Wed Apr 10, 2013 3:21 pm

Hi

This is music to my ear! Welcome to disagree with me as I am on the same boat as dimension 7 and I don's want my 5 years considered to be broken. I based on my conclusion on this paragraph in the new guidance.

"Absences must be 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, if appropriate, any paid annual leave. Evidence in the
form of a letter from the employer setting out the reasons for the absences, including annual
leave, must be provided. Tier 1 (General) applicants who are self-employed or in business
must provide a letter of explanation of their business-related absences."
suds19 wrote:I have to politely disagree with @ldbright here. If @dimension7 had a paid annual leave, then the continuity is not broken.

@dimension7 - Employer's letter doesn't have to say what you did during your leaves. Ask them to give them a letter showing duration and category of leaves (Annual, Unpaid, Sick, Maternity, Paternity, etc.) for the entire period of your employment with them. Again not all leaves would have resulted in absence from UK, that is fine. Basically for each absence from UK in your ILR form, there should be a corresponding matching entry in letter from employer. For Business travel, there can be a separate letter as it is not a leave in the eyes of your employer.

Only the category of Unpaid leave from above breaks continuity as per new rule.

@syedaliuk - Did you mean 95% of us have either employment gap absence or unpaid leave absence in 5 years?

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