Actually, a very bad news for Tier 1 general holders

snowball001 · Post by **snowball001** » Fri Apr 12, 2013 4:03 am

ldbright wrote:What if you are a contractor using an umbrella company with daily rate?

I do get holiday pay every month but as I am paid by day, if I get out of the country for holiday. I won't be paid the daily rate but I still get monthly holiday pay, and it is shown on my payslip even on the month I took holidays. I was with the same client using same unbrella company for 4 years.

My question is, does my leave still count as paid holidays? Please can someone kindly helping answer the question.

Many Thanks!

When ukba mentions about 'paid annual leave', it also attaches a phrase 'if appropriate', the purpose of which was interpreted in a reply in whatdotheyknow that it is appreciated that there are people who don't have such an arrangement, e.g. Self-employed and in such case they should prove absence is related to the business.

In my opinion since there is payment arranged during the leave, then such leave can be treated as equivalent to paid annual leave.

And from the success story above (congrats!), we should relax and not to over-stress something that is not quite in the mind of frontline cw (yet). I agree that it's better not to post more questions about this 'minor' change to ukba.

letmec2006 · Post by **letmec2006** » Fri Apr 12, 2013 7:38 am

So the CW is asking about absences, and she did ask for a explanation. But if there is sufficient evidence that the letter can't be provided they agree to that. So basically it goes with the discretion of the CW. they have flexibility to do whatever, to me this is absurd. Wondered to what extent they can go? Can they refuse application based on not having letter. Don't understand the unfairness of this.

hsmpilr · Post by **hsmpilr** » Fri Apr 12, 2013 7:46 am

letmec2006 wrote:So the CW is asking about absences, and she did ask for a explanation. But if there is sufficient evidence that the letter can't be provided they agree to that. So basically it goes with the discretion of the CW. they have flexibility to do whatever, to me this is absurd. Wondered to what extent they can go? Can they refuse application based on not having letter. Don't understand the unfairness of this.

I agree. We cannot be at the mercy of a CW. The rules must dictate and we all including the CW must obey. The rules must be clear and unambiguous.

syed_ILR · Post by **syed_ILR** » Fri Apr 12, 2013 8:18 am

hsmpilr wrote:
letmec2006 wrote:So the CW is asking about absences, and she did ask for a explanation. But if there is sufficient evidence that the letter can't be provided they agree to that. So basically it goes with the discretion of the CW. they have flexibility to do whatever, to me this is absurd. Wondered to what extent they can go? Can they refuse application based on not having letter. Don't understand the unfairness of this.
I agree. We cannot be at the mercy of a CW. The rules must dictate and we all including the CW must obey. The rules must be clear and unambiguous.

You guys are making a mountain out of a molehill. Over stressing, over analyzing. I don't know why are you so insecure.

The guy has clearly explained you his experience. 170 flipping days of absence (without a job!!!!!!) and still got accepted! Now! if you guys are still not happy then you can never be... to be honest. He did not even have a proper evidence to show and still a personal statement was ok for the CW. I would say chillout! please and stop assuming things which are not there. If the rule was so stringent then the CW would have rejected that 170days case. I mean from my point of view its all about absences moer than 180 days..but yeah just provide a Fing God damn proof..whatever man! just write a letter..

Yash001 · Post by **Yash001** » Fri Apr 12, 2013 8:49 am

syed_ILR wrote:
hsmpilr wrote:
letmec2006 wrote:So the CW is asking about absences, and she did ask for a explanation. But if there is sufficient evidence that the letter can't be provided they agree to that. So basically it goes with the discretion of the CW. they have flexibility to do whatever, to me this is absurd. Wondered to what extent they can go? Can they refuse application based on not having letter. Don't understand the unfairness of this.
I agree. We cannot be at the mercy of a CW. The rules must dictate and we all including the CW must obey. The rules must be clear and unambiguous.
You guys are making a mountain out of a molehill. Over stressing, over analyzing. I don't know why are you so insecure.

The guy has clearly explained you his experience. 170 flipping days of absence (without a job!!!!!!) and still got accepted! Now! if you guys are still not happy then you can never be... to be honest. He did not even have a proper evidence to show and still a personal statement was ok for the CW. I would say chillout! please and stop assuming things which are not there. If the rule was so stringent then the CW would have rejected that 170days case. I mean from my point of view its all about absences moer than 180 days..but yeah just provide a Fing God damn proof..whatever man! just write a letter..

I second your statements...lets not overkill this by over analysis...

coolguy9 · Post by **coolguy9** » Fri Apr 12, 2013 11:06 am

Hi Guys,

I am following this thread closely since the last few days and yesterday I contacted my solicitor about this issue and he replied that there is nothing to worry about this rule if the applicant has followed previous rules ( before 2012 December) for ILR. This new absence rule will be a big issue only if the applicant has exceeded 180 days in any 12 months period. Then they have to provide proof for that.

If the applicant has completed 5 years residence with total holidays under 180 days as was the case initially and has met the necessary points for the ILR, then there is nothing to worry about.

So guys stay cool and carry on as usual

syed_ILR · Post by **syed_ILR** » Fri Apr 12, 2013 11:51 am

coolguy9 wrote:Hi Guys,

I am following this thread closely since the last few days and yesterday I contacted my solicitor about this issue and he replied that there is nothing to worry about this rule if the applicant has followed previous rules ( before 2012 December) for ILR. This new absence rule will be a big issue only if the applicant has exceeded 180 days in any 12 months period. Then they have to provide proof for that.

If the applicant has completed 5 years residence with total holidays under 180 days as was the case initially and has met the necessary points for the ILR, then there is nothing to worry about.

So guys stay cool and carry on as usual

cheers @coolguy

nice one!

apahuja · Post by **apahuja** » Fri Apr 12, 2013 1:49 pm

RAW wrote:Hello Everyone... ok it seems I may be the first one to share my PEO appointment experience I had today for my successful SET(O) ILR application at Sheffield..... last two days were one of most distressing days for me .... n specifically this message thread exponentially increased my stress level...... yesterday I even tried to cancel my appointment due to fear of rejection because the burden of providing proof of my first absence....

First of all my timeline

1st EC as HSMP on 20th Aug 2007 for two years
Got LTR extension as Tier1-gen on 20th Aug 2009 for three year
Got further LTR Extension as Tier1-gen on 14th May 2012 till for two years

My 1st entry in UK on this HSMP EC was 11th December 2007 but I left UK after just 4 weeks on 7th January 2008 (reason: family issues) came back after 170 days on 25th June 2008. Got into employment in UK on 15th July 2008 and still with the same employer.

Following are my all absences from UK

7th Jan 2008 to 25th June 2008 (170 Days) -- (Family issues - was not in employment in UK)
19th Dec 2008 to 7th Jan 2009 (19 Days) -- Paid Leave
27th Nov 2008 to 3rd Jan 2010 (37 Days) -- Paid Leave
25th Aug 2010 to 19th Sept 2010 (25 Days)-- Paid Leave
11th Mar 2011 to 9th April 2011 (29 Days) -- Paid Leave till 1st Apr 2011 and from 2nd was off sick and was unable to travel back

When I started filling up my form and gathering all the relevant documents ... I thought my case was very straight forward... but as I said earlier.... more I read this thread more distressed I became since I had no documentary proof for my 1st absence and even for the sick leaves I had during my last absence.....

However, I decided to wrote a personal statement for these two absences explaining reasons and confirmed that I cannot provide any documentary proof for either of these. For other paid leave my HR were only able to confirm last two sets of paid leaves but not the first two due to change of HR system, which they acknowledged in an email. I attached this acknowledgement email with my application.

Overall processing for my application at Sheffield PEO took less than 3hrs which includes getting initial token, submitting application, payment of fee, Biometrics enrolment, caseworker introducing herself and explaining about my application and handing over decision letter after half n hour.

However, since all other aspects of application was very straight forward, caseworker only mentioned about my absences while she 1st introduced herself... and said that she has gone through my personal statement and she has considered it and its fine and not an issue.... and then confirmed that she will take around 45 mins to an hour to complete my case ... if I want I can go out.... but I opted not to and she kindly replied that she will try to finish it earlier then.... and yes she handed over her decision in half n hour.... a great sigh of relief.....

Congrats

Which set(o) form did you use- old or new?

ukswus · Post by **ukswus** » Fri Apr 12, 2013 2:12 pm

coolguy9 wrote:
If the applicant has completed 5 years residence with total holidays under 180 days as was the case initially and has met the necessary points for the ILR, then there is nothing to worry about.

It's cool that your solicitor thinks this way, but there is no mention of this either in the immigration rules, or in ILR guidance. There is definitely no mention of any transitional arrangements that I could notice.

katwmn6 · Post by **katwmn6** » Fri Apr 12, 2013 2:33 pm

coolguy9 wrote:Hi Guys,

I am following this thread closely since the last few days and yesterday I contacted my solicitor about this issue and he replied that there is nothing to worry about this rule if the applicant has followed previous rules ( before 2012 December) for ILR. This new absence rule will be a big issue only if the applicant has exceeded 180 days in any 12 months period. Then they have to provide proof for that.

If the applicant has completed 5 years residence with total holidays under 180 days as was the case initially and has met the necessary points for the ILR, then there is nothing to worry about.

So guys stay cool and carry on as usual

Can I ask why you mention the Dec 2012 rule change, per the above bolded text?

ilrdep · Post by **ilrdep** » Fri Apr 12, 2013 2:47 pm

Just wanted to update you that one of friend got approval from Solihull today with 60 days(Total) absence all were vaccation , no letters were asked.

Also want to inform that process in Solihull now changed (payment before Caseworker looks the case)

syed_ILR · Post by **syed_ILR** » Fri Apr 12, 2013 2:49 pm

RAW wrote:Hello Everyone... ok it seems I may be the first one to share my PEO appointment experience I had today for my successful SET(O) ILR application at Sheffield..... last two days were one of most distressing days for me .... n specifically this message thread exponentially increased my stress level...... yesterday I even tried to cancel my appointment due to fear of rejection because the burden of providing proof of my first absence....

First of all my timeline

1st EC as HSMP on 20th Aug 2007 for two years
Got LTR extension as Tier1-gen on 20th Aug 2009 for three year
Got further LTR Extension as Tier1-gen on 14th May 2012 till for two years

My 1st entry in UK on this HSMP EC was 11th December 2007 but I left UK after just 4 weeks on 7th January 2008 (reason: family issues) came back after 170 days on 25th June 2008. Got into employment in UK on 15th July 2008 and still with the same employer.

Following are my all absences from UK

7th Jan 2008 to 25th June 2008 (170 Days) -- (Family issues - was not in employment in UK)
19th Dec 2008 to 7th Jan 2009 (19 Days) -- Paid Leave
27th Nov 2008 to 3rd Jan 2010 (37 Days) -- Paid Leave
25th Aug 2010 to 19th Sept 2010 (25 Days)-- Paid Leave
11th Mar 2011 to 9th April 2011 (29 Days) -- Paid Leave till 1st Apr 2011 and from 2nd was off sick and was unable to travel back

When I started filling up my form and gathering all the relevant documents ... I thought my case was very straight forward... but as I said earlier.... more I read this thread more distressed I became since I had no documentary proof for my 1st absence and even for the sick leaves I had during my last absence.....

However, I decided to wrote a personal statement for these two absences explaining reasons and confirmed that I cannot provide any documentary proof for either of these. For other paid leave my HR were only able to confirm last two sets of paid leaves but not the first two due to change of HR system, which they acknowledged in an email. I attached this acknowledgement email with my application.

Overall processing for my application at Sheffield PEO took less than 3hrs which includes getting initial token, submitting application, payment of fee, Biometrics enrolment, caseworker introducing herself and explaining about my application and handing over decision letter after half n hour.

However, since all other aspects of application was very straight forward, caseworker only mentioned about my absences while she 1st introduced herself... and said that she has gone through my personal statement and she has considered it and its fine and not an issue.... and then confirmed that she will take around 45 mins to an hour to complete my case ... if I want I can go out.... but I opted not to and she kindly replied that she will try to finish it earlier then.... and yes she handed over her decision in half n hour.... a great sigh of relief.....

For the Tier 1 Investor, Tier 1 Entrepreneur, Tier 1 Exceptional Talent and Highly Skilled Migrant (applying under Appendix S of the rules) categories there is no requirement to give a reason for absences if they do not exceed 180 days in any of the five, four, three or two consecutive 12 month periods of the continuous period, counted backwards from the date of application for indefinite leave to remain (ILR).

Am I right in saying that first two years of yours were hsmp and the rule now says that you don't need to provide any evidence. Does Highly skilled migrant means hsmp??

apahuja · Post by **apahuja** » Fri Apr 12, 2013 2:56 pm

syed_ILR wrote:
RAW wrote: Does Highly skilled migrant means hsmp??

yes as per ukba response on WhatDoTheyKnow in some previous email. do not exactly where I saw that but they confimred it means HSMP.

syed_ILR · Post by **syed_ILR** » Fri Apr 12, 2013 2:58 pm

apahuja wrote:
syed_ILR wrote:
RAW wrote: Does Highly skilled migrant means hsmp??
yes as per ukba response on WhatDoTheyKnow in some previous email. do not exactly where I saw that but they confimred it means HSMP.

does it mean that ...RAW was not asked for the proofs as he was on hsmp at the the of his 170 days absence from UK . loooool..now I am being over analytical

autotest · Post by **autotest** » Fri Apr 12, 2013 3:06 pm

I was away for more than 180 days (200 days), I got a letter from my employer saying as a business trip and my salary was paid in UK for 4 months.

Do they still consider my case? I have appointment on 17th of this month in Solihull

snowball001 · Post by **snowball001** » Fri Apr 12, 2013 3:26 pm

syed_ILR wrote:
apahuja wrote:
syed_ILR wrote:
RAW wrote: Does Highly skilled migrant means hsmp??
yes as per ukba response on WhatDoTheyKnow in some previous email. do not exactly where I saw that but they confimred it means HSMP.
does it mean that ...RAW was not asked for the proofs as he was on hsmp at the the of his 170 days absence from UK . loooool..now I am being over analytical

Not sure where I got this and need validation: if the applicant is on hsmp+tier 1 route then he needs to meet the requirements for tier 1.

nadnet · Post by **nadnet** » Fri Apr 12, 2013 3:45 pm

apahuja wrote:
syed_ILR wrote:
RAW wrote: Does Highly skilled migrant means hsmp??
yes as per ukba response on WhatDoTheyKnow in some previous email. do not exactly where I saw that but they confimred it means HSMP.

In Immigration Rules (Introduction):"Under Part 6A of these Rules, Highly Skilled Migrant" means a migrant granted leave under paragraphs 135A to 135G of the Rules in force before 30th June 2008."

pkumar · Post by **pkumar** » Fri Apr 12, 2013 7:17 pm

nadnet wrote:
apahuja wrote:
syed_ILR wrote:
RAW wrote: Does Highly skilled migrant means hsmp??
yes as per ukba response on WhatDoTheyKnow in some previous email. do not exactly where I saw that but they confimred it means HSMP.

In Immigration Rules (Introduction):"Under Part 6A of these Rules, Highly Skilled Migrant" means a migrant granted leave under paragraphs 135A to 135G of the Rules in force before 30th June 2008."

That is not true ... read this: https://www.whatdotheyknow.com/request/ ... ing-378134

Related to post here : http://www.immigrationboards.com/viewto ... &start=280

Sep08T1Applicant · Post by **Sep08T1Applicant** » Fri Apr 12, 2013 7:59 pm

syed_ILR wrote:
apahuja wrote:
syed_ILR wrote:
RAW wrote: Does Highly skilled migrant means hsmp??
yes as per ukba response on WhatDoTheyKnow in some previous email. do not exactly where I saw that but they confimred it means HSMP.
does it mean that ...RAW was not asked for the proofs as he was on hsmp at the the of his 170 days absence from UK . loooool..now I am being over analytical

Yes exactly, I wanted to see that, I said earlier we have to wait and watch, it is quite worried and need consideration. I think people who should worry more are like me or anyone who are in their 5 years stayed in Tier 1 (general). I think people who came in with HSMP and extended their visa using Tier 1 General are fine and they don't have to worry much. HSMP
since JR has a very strong consideration and it is quite impossible people on HSMP suffer as they did before JR. Now, I think simply people who were and are purely completing their 5 years period on TIER 1 General might suffer. I think simply wait and see until new forms are fully in placed with the person who has completed 5 years using TIER general, good luck guys and stay focused. Just to add people with hsmp really don't have to very much apart from 180 days in a year

hsmpilr · Post by **hsmpilr** » Fri Apr 12, 2013 8:00 pm

What about unpaid leaves ? Are they all in trouble ?

Sep08T1Applicant · Post by **Sep08T1Applicant** » Fri Apr 12, 2013 8:08 pm

hsmpilr wrote:What about unpaid leaves ? Are they all in trouble ?

to be very frank, yes it is a break in continuity as per reading responses from UKBA but still not too worry that much.
I think as far as I understood, people who actually started their ILR clock initially with HSMP they will be fine, focus is more on Tier 1 General over the period from start to end. Please wait and watch, wait for senior to comments or wait for people who submit their application on new form with un-paid holidays or only people on Tier 1 general throughout

[iD] · Post by **[iD]** » Fri Apr 12, 2013 8:32 pm

Guys, don't stress yourself too much by reading the responses from UKBA. Unlike WP/T2, HSMP/T1 was never required to be working all year around so unpaid leave would never break continuity of your stay.

From experience I can tell you, don't read too much into UKBA's responses either, half the time people responding don't know their arses from their mouth.

Chill! (If you can) Just get letters from your employers detailing your holidays for the period you were employed and for the period you were unemployed or self employed, just write letters yourself.

syed_ILR · Post by **syed_ILR** » Fri Apr 12, 2013 8:40 pm

ilrdep wrote:Just wanted to update you that one of friend got approval from Solihull today with 60 days(Total) absence all were vaccation , no letters were asked.

Also want to inform that process in Solihull now changed (payment before Caseworker looks the case)

I think people missed this post!!

Great news ..

[iD] · Post by **[iD]** » Fri Apr 12, 2013 8:44 pm

syed_ILR wrote:
ilrdep wrote:Just wanted to update you that one of friend got approval from Solihull today with 60 days(Total) absence all were vaccation , no letters were asked.

Also want to inform that process in Solihull now changed (payment before Caseworker looks the case)

I think people missed this post!!

Great news ..

Exactly what happened to my mate too. I think you guys are stressing too much.

Wildjoecrazy · Post by **Wildjoecrazy** » Fri Apr 12, 2013 11:29 pm

Hello

I would just like to share with everyone that I had my ILR approved! I only found out about the rule change on 5 April, which of course instantly set me off into panic mode, as I had very little time to gather any information or evidence and was not sure if I was eligible!

My situation is this:
HSMP 2008 - 2010
Tier 1 General 2010 - 2013

My work situation was:
3 years contracting under an umbrella company or on a temporary basis
2 years permanent job

I explained my absences in the following way in my cover letter:
- When I was under HSMP, I understood that under the immigration rules that I did not have to quantify my work related absences during this period according to rule 245 (c).
However I chose to explain these for purposes of demonstrating my employment in the uk over five years and if info required.
- I explained that when I was an employee of an umbrella company I took on work assignments on a contracting basis. Therefore there were times I was not in employment. I explained that my annual leave was paid out to my in my weekly wage which equated to the equivalent of x number of days paid leave, however I exceeded the x number of days per year. Additionally that the employer was unable to differentiate the difference between days off that were considered paid annual leave (or equivalent of) or times when I was not in employment. I explained that due to the nature of my employment I was able to negotiate leave during work assignments or take leave between work assignments, in which I decided to travel abroad for short holidays.

- for my permanent post, I asked the employer to write a letter explaining that they are unable to confirm my absences from the UK in relation to my approved leave as they are not required to ask this or record this. I stated in my cover letter that there is consistency between my approved annual leave and my absences.

- I had 230 days of absences and these were not all paid!

Evidence I submitted:
1. Employment statements
2. Contracts highlighting my annual leave entitlement and nature of my employment
3. Sample of payslips from contracting to demonstrate how my holiday pay was calculated
4. Cover letter explaining all of the above.

As Tier 1 you do not need to always be in employment. I think even if you are permanent you can take unpaid leave from work, as long as your intention is to return to the same job when you get back or look for other work.

Immigrationboards.com: Immigration, work visa and work permit discussion board

Actually, a very bad news for Tier 1 general holders

which form?

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unpaid

Re: unpaid

ILR approved