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ILR guidance - Annex F

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.

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

penanglad
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ILR guidance - Annex F

Post by penanglad » Sun Nov 06, 2005 11:05 am

This is marked "Not disclosed" on the IND website, but I sent an email asking for it under the Freedom of Information Act 2000.

------------------
IMMIGRATION DIRECTORATES' INSTRUCTIONS


CHAPTER 5 > ANNEX F
SECTION 1

EMPLOYMENT, BUSINESS OR INVESTMENT

SETTLEMENT - GUIDANCE - GENERAL


1. INTRODUCTION

Under various paragraphs of HC 395 settlement may be granted to those who have spent 4 years here in certain categories, but only if it has been specifically applied for. This arrangement is also extended to those who have remained here exceptionally outside the rules in permit-free employment for 4 years.

The advice in this annex should be read in conjunction with the section of these instructions relevant to the category in which indefinite leave is being sought.


2. CATEGORIES TO WHICH THIS GUIDANCE APPLIES

2.1. Under part 5 of the rules

Work permit holders (Paragraph 134)

Representatives of overseas newspapers etc. (Paragraph 142)

Sole Representatives (Paragraph 150)

Private Servants in diplomatic households (Paragraph 158)

Employees of overseas governments (except those exempt from control) or the United
Nations or other international organisation of which the United Kingdom is a member (Paragraph 167)

Ministers of religion, missionaries or member of religious orders (Paragraph 176)

Airport based operational staff of overseas owned airlines (Paragraph 184)

Commonwealth citizens with United Kingdom ancestry (Paragraph 192)


2.2. Under part 6 of the rules

Businessmen (Paragraph 209)

Businessmen under provision of EC Association Agreements (Paragraph 222)

Investors (Paragraph 230)

Writers, composers and artists (Paragraph 238)


2.3. Under part 7 of the rules

Retired persons of independent means (Paragraph 269)


2.4. Exceptionally outside the rules

Domestic servants accompanying employer

Employees of a government sponsored press, trade, tourist or cultural organisation

Civilian employees of and employees of firms under contract to NATO forces

Other, smaller-scale concessionary arrangements permitting full time employment for four years.


3. CALCULATION OF THE FOUR YEAR PERIOD FOR SETTLEMENT

In assessing whether or not an applicant has fulfilled the requirement to have spent 4 years in continuous residence in the same capacity, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the United Kingdom), may be disregarded, provided he has clearly continued to be based here.


3.1. Discretion in cases where continuous residence has been broken

In addition, time spent here in this capacity may exceptionally be aggregated, and continuity not insisted upon, in cases where:

* there have been no absences abroad (apart from those described in paragraph 3 above) and authorised employment or business here has not been broken by any interruptions of more than 3 months or amounting to more than 6 months in all; or

* there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant's employment or business in the United Kingdom. None of the absences abroad should be of more than 3 months, and they must not amount to more than 6 months in all.

NB: Decisions in such cases must be taken at HEO level or above.

In cases involving breaks in residence and/or employment or self-employment other than or in excess of those detailed above, periods may be aggregated or shortfalls disregarded only with the approval of an SEO or Grade 7.


3.2. Retired persons of independent means

Cases involving retired persons of independent means are less straightforward since they have no business or employment to tie them to the United Kingdom. Absences abroad consistent with holidays retired or wealthy people may take are acceptable provided it is clear that the applicant is not maintaining a business or a main base in another country. In such cases settlement can be granted in the normal way after a period of 4 years.


4. ACTION WHEN ALL REQUIREMENTS EXCEPT CONTINUITY OF RESIDENCE HAVE BEEN MET

Where a person has spent less than half his time in the United Kingdom he should be refused indefinite leave to remain and not granted a further extension of stay.

Where an application for settlement is to be refused only because of lack of continuity of residence but is likely to succeed if re-submitted within a year a suitable extension should be granted on the same conditions as before with a letter indicating that the case for settlement will be reviewed upon application at the end of the further period.


5. REFUSAL ON OTHER GROUNDS

In other cases where an application for settlement is to be refused, the settlement group should refer the case back to the caseworking group, who should consider whether an application for further limited leave to remain would succeed under the relevant paragraph of the Rules. If so the applicant should be granted an extension for the period of approved employment, not exceeding 3 years, on the same Code as before. Where the relevant requirements of the Rules are not met, the application should be refused.


6. APPLICANTS WHO QUALIFY BUT DO NOT REQUEST SETTLEMENT

In cases where settlement is not requested, further leave to remain should be granted up to a maximum of 3 years on Code 1 provided the relevant requirements of the Rules for the immediate grant of settlement are met. Where the requirements for settlement are not met the application must be considered against the requirements of the Rules for further limited leave to remain.


6.1. Further applications after 3 years

A person who has qualified and continues to qualify under the Rules for settlement but has not previously applied for it may be granted settlement, on application, or up to 5 years' further leave to remain on Code 1 provided there has been no single break in residence of more than 6 months. In the case of an absence from the United Kingdom of over 6 months but under 2 years the application should not be refused but referred to an SEO or Grade 7.

Smit
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Location: London

Post by Smit » Mon Nov 07, 2005 10:34 am

This info is useful. However, I note that HSMP is not mentioned anywhere? :o

Markie
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Post by Markie » Tue Nov 08, 2005 3:01 am

Smit wrote:This info is useful. However, I note that HSMP is not mentioned anywhere? :o
HSMP is under Chapter 5 Section 11 of the Immigration Directorate's instructions. This section mentions the 4yr period.

Click this guide...
http://www.ind.homeoffice.gov.uk/ind/en ... er_5.html?

mkumarInTheUK
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Question on terms of residence for ILR

Post by mkumarInTheUK » Wed Nov 09, 2005 6:18 pm

Hi,
The above details are extremely usefull. Thanks for the same.
I have been in the UK for 3 years now and will finish my 4 yrs in Nov 2006. Throughout I have had a legal status here on a workpermit, worked for the same company and have paid taxes, and have maintained a house here till August 2005 (I have council tax and other bills in my name).
Of late I am having to travel more and more on official business. I spent 20 days in France (excluding weekends when I returned to the UK) and have been to India twice for 2 months with a one week break in btw.
Early next year, I am to leave to the US for 3 months.
I have consistently tried to ensure that I do not stay out of the country for more than 3 months at a stretch or 6 months in total.
But I am worried that my absenses will work against me when I apply for ILR ? Does renting a house or being in continous employment here work inyour favour ?

What happens if I do not meet the 'terms for continous residence' ? Does the clock start again and do I need to wait for an addtional 4 years. Or can it be made up the next year ?

Thanks,
Kumar.

maple leaf
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Location: UK

Re: Question on terms of residence for ILR

Post by maple leaf » Sat Jan 07, 2006 8:30 pm

mkumarInTheUK wrote:Hi,
The above details are extremely usefull. Thanks for the same.
I have been in the UK for 3 years now and will finish my 4 yrs in Nov 2006. Throughout I have had a legal status here on a workpermit, worked for the same company and have paid taxes, and have maintained a house here till August 2005 (I have council tax and other bills in my name).
Of late I am having to travel more and more on official business. I spent 20 days in France (excluding weekends when I returned to the UK) and have been to India twice for 2 months with a one week break in btw.
Early next year, I am to leave to the US for 3 months.
I have consistently tried to ensure that I do not stay out of the country for more than 3 months at a stretch or 6 months in total.
But I am worried that my absenses will work against me when I apply for ILR ? Does renting a house or being in continous employment here work inyour favour ?

What happens if I do not meet the 'terms for continous residence' ? Does the clock start again and do I need to wait for an addtional 4 years. Or can it be made up the next year ?

Thanks,
Kumar.


To be able to get you ILR safely, perhaps you have to sacrifice the time you stay outsite the UK

PB
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Location: UK

Re: ILR guidance - Annex F

Post by PB » Fri Jan 20, 2006 1:10 pm

penanglad wrote: Under various paragraphs of HC 395 settlement may be granted to those who have spent 4 years here in certain categories, but only if it has been specifically applied for. This arrangement is also extended to those who have remained here exceptionally outside the rules in permit-free employment for 4 years.

The advice in this annex should be read in conjunction with the section of these instructions relevant to the category in which indefinite leave is being sought.
Hi,

This mentions permit-free employment. Would that apply to doctors?

penanglad - could you please provide a link to the IND page which mentions this section?

Thanks & Regards,
PB

munhumutapa
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Post by munhumutapa » Fri Sep 08, 2006 10:26 am

I've stayed in UK for 2 years as a student and 3 years on a work permit. Does this mean that I can apply for ILR?

John
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Location: Birmingham, England

Post by John » Fri Sep 08, 2006 11:05 am

I've stayed in UK for 2 years as a student and 3 years on a work permit. Does this mean that I can apply for ILR?
No, sorry, it does not. Except as I note below, your time in the UK on a student visa does not count towards the ILR qualifying period. So you will need to have nearly 5 years on a WP before you can apply for ILR?

The exception? Time in the UK on a student visa does count if a Long Residence application is being made. But as the minimum for that is 10 years in the UK, for you Munhumutapa, that is not helpful, because you will need to wait just two more years on the WP route, whereas for a Long Residence application you would need to wait a further 5 years.
John

munhumutapa
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Post by munhumutapa » Tue Sep 12, 2006 8:08 pm

Thank you!

mifengmi
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Joined: Mon Sep 25, 2006 11:11 am

Need Help! Absence from the UK.

Post by mifengmi » Mon Sep 25, 2006 11:51 am

I'm a HSMP holder, and would like to get PR after 5 years time. I'm getting a job which needs 4-6 months per year travelling outside of the UK. From HO website I found the absence rules for applying British citizenship, http://www.ind.homeoffice.gov.uk/docume ... iew=Binary
, which states " 4.1.2 Total Absences of up to 900 days - consider disregarding only if
the application is otherwise in order, and if applicants have
established their home, family and a substantial part of their estate
here. We should also expect:
c. the excess absences to have been an unavoidable
consequence of the nature of a career (for example a
merchant seaman or someone in UK-based business or
employment which requires frequent travel abroad); or
d. exceptionally compelling reasons of an occupational or
compassionate nature to justify naturalisation now, including,
for example, because the applicant has a firm offer of a job for
which British citizenship is a statutory or professional
requirement."
If the residence requirement for PR is the same as for citizenship, then it won't be a problem if I take this job and absent 180days/years.
:?: But, in Annex F of Chapter 5, it seems the absence should not exceed 6 months in total 4 years. Did I get it right? Or maybe it means "6 months per year", which is in line with the rules for citizenship: 900 days/5 years.

This is soooooooooo important to me. Hope experts can help me out! Many thanks in advance!

John
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Post by John » Mon Sep 25, 2006 12:38 pm

If the residence requirement for PR is the same as for citizenship ........
No it is not the same, it is different!
John

mifengmi
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Post by mifengmi » Mon Sep 25, 2006 12:54 pm

John wrote:
If the residence requirement for PR is the same as for citizenship ........
No it is not the same, it is different!
Thanks John! Then do you think for PR, the max. absence is 6months in 4 years?
People need to get PR before applying for citizenship, right? How can it be that they allow you have 900 days/5 years for citizenship, where is only 6 months /4 years for PR? I'm really confussed.
Please help!

John
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Post by John » Mon Sep 25, 2006 12:58 pm

I am not sure, but do appreciate that 4 years has now become 5 years. It is clearly the case that the document was requested before and supplied before that change was made last April.
John

frutis
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Post by frutis » Thu Sep 28, 2006 3:13 pm

John wrote:
I've stayed in UK for 2 years as a student and 3 years on a work permit. Does this mean that I can apply for ILR?
No, sorry, it does not. Except as I note below, your time in the UK on a student visa does not count towards the ILR qualifying period. So you will need to have nearly 5 years on a WP before you can apply for ILR?

The exception? Time in the UK on a student visa does count if a Long Residence application is being made. But as the minimum for that is 10 years in the UK, for you Munhumutapa, that is not helpful, because you will need to wait just two more years on the WP route, whereas for a Long Residence application you would need to wait a further 5 years.
hi there,

i have heard that you would have to be in the uk for 10 years in order to be entitled to apply for ILR if you're in the uk on a student visa. however, i could not find any act confirming this. could you please advise?

furthermore, i could not find the info of that 10 years rule at ind web page . . please kindly inform where you find it?

thankss..

John
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Post by John » Thu Sep 28, 2006 3:24 pm

Have a look at this part of the immigration rules and in particular paras 276A to 276D.
John

vijier
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Post by vijier » Tue Nov 14, 2006 9:52 pm

Hi,
I came to UK on Business Visa in September 2002 and went back to India in Mar 2003. Came back in June 2003 on WP and I have my FLR-IED valid till Aug 2009.

Please could you let me know, if my stay on Business visa will count towards ILR? or will I need to be on full 5yrs on WP to get my ILR?

Many thanks

John
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Location: Birmingham, England

Post by John » Tue Nov 14, 2006 10:31 pm

Vijier, looking at the detail in the opening post in this topic, I think you need to say the exact dates in March 2003 and June 2003 when you left and returned to the UK. More than 3 months, or less?

Also the reason for that about three months absence?
John

minny
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Post by minny » Sat Feb 10, 2007 1:45 pm

Can one apply for ILR after spending 5 years (combination of permit free trainig and HSMP?)

Thanks

Minny

firstime
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Post by firstime » Thu Apr 26, 2007 10:20 am

Has anyone seen the new Annex document after 4-5 changes?

SYH
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Post by SYH » Mon Apr 30, 2007 7:42 pm

The HSMP link does not work anymore
anyone have the info and can cut and paste into a post

Click this guide...
http://www.ind.homeoffice.gov.uk/ind/en ... er_5.html?[/quote]

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