THIS IS FOR RULES IN PLACE FROM 13/12/2012 to 06/04/2013. PLEASE SEE THE NEW RULES IN UKBA WEBSITE THAT REQUIRES PEOPLE ON TIER 1 to HAVE A VALID PROOF IN TERMS OF A SELF EXPLANATORY LETTER IF YOU WERE ON SELF EMPLOYED (WITH NECESSARY PROOF) AND ABSENCE LETTER FROM EMPLOYER IF YOU WERE EMPLOYED
Just wanted to help the folks who are applying for ILR (with Tier 1) and have long absences > 180 days spread across two consecutive 12 month period which were not medical, compassionate or compelling reason like me . Email below
And this was the answer...Hi there Settlement Ops Policy Team,
I needed a clarification on the new ILR rules that have come into effect from 13 Dec, 2012 as the statement regarding 180 days absence is very ambigious with the reasons
1. Regarding 180 days absence in a year - there have been quite a few ambigious statements on this in different places of the website.
Ex: The following link says "During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months."
http://www.ukba.homeoffice.gov.uk/visas ... ettlement/
And the guidance note says ""No more than 180 whole days absence are allowed in any of the five, two, three or four consecutive 12 month periods, preceding the date of the application for indefinite leave to remain (ILR)"
One of them says no more than 180 days in "any" 12 consecutive months where as the other says "No more than 180 whole days absence are allowed in any of the five, two, three or four consecutive 12 month periods"
So if a immigrant is out of the country for 200 days from October 2011 to May 2012 and he applies for ILR (assuming that he has completed five years legally) in January 2013 - according to the Guidance notes, he will still be eligible. (from what we read). Is that correct
Can you please clarify if its 180 days in any consecutive 12 months period in the last 5 years or in any of the five, two, three or four consecutive 12 month periods (according to the guidance notes)
2. It is becoming quite common for people to go on sabbatical unpaid leave and come back to the country after 3-6 months of well earned break from travelling. If the applicant is on Tier 1 G, he doesn't have to be associated to a single employer and will always be at the liberty of choosing work. If an immigrant on Tier 1 General decides to go on a Sabbatical leave and during this course he decides to be out of the UK for less than 180 days absence in any of the five, two, three or four consecutive 12 month periods - would he still be qualified. Although the guidance says that no reason needs to be given when the absence is less than 180 days a year (unless its compelling or compassionate) - I'd like to check specifically for sabbatical leave as this is not covered under your policy guidance.
I appreciate that the sabbatical leave is not related to work - but at the same time a constraint cannot be applied on someone working in the UK as Tier 1 immigrant not to take sabbatical unpaid leave on their own as it will effect their ILR.
For the purpose of data sensitivity, I've removed my email addresses and the full name of the person from UKBA who replied this email.
Settlement Ops Policy Mailbox
Thank you for your e mail.
1. I understand why you think the guidance is ambiguous and thank you for highlighting this. I can confirm that the continuous period will not be broken if absences in any of the consecutive 12 month periods of the specified continuous period do not exceed 180 days. You may or may not be aware that certain categories within Tier 1 can qualify for settlement after 2, 3 or 4 years, whereas all other categories must complete a 5 year period before being eligible for ILR, hence the reference to these different specified periods in the guidance.
If a migrant had spent a total of 200 days outside of the UK during any of the consecutive 12 month periods of the continuous period (which is counted backwards in 12 month blocks from date of application), they would have broken continuity and their application would fall for refusal. However, if this was a single absence which spanned 2 of the consecutive 12 month periods, then the total of 180 days in any one 12 month period may not have been exceeded.
2. You are correct in saying that Tier 1 (General) migrants are not required to be in constant employment, as they are granted this type of visa on the understanding that they will come the UK to seek highly skilled employment or to become self-employed. It is for this reason that they are not required to provide evidence of their absences from the UK, as it is likely that evidence of absences would be self-generated.
As you will be aware, provided a Tier 1 (General) migrant can demonstrate that they have the required number of points for previous earnings, they do not need to demonstrate that they have been employed throughout the whole 15 month period immediately prior to making their settlement application.
With regards to the number of days outside of the UK that will not be considered to break continuity, this is the same for all category of migrants, regardless of whether they can qualify for settlement after 2,3,4 or 5 years (Tier 1 (Investor) and Tier 1 (Entrepreneur) migrants can qualify for accelerated settlement within 2 or 3 years, depending upon the size of their investment, or the number of people they employ. HSMP migrants can qualify after 4 years, provided they were approved to the scheme before 6 April 2006)).
The rules for settlement have, and continue to require that the applicant has spent the specified continuous period in the UK. This has not changed. What has changed is that previously the Secretary of State for the Home Department (SSHD) agreed to apply discretion to disregard up to 180 days over the whole of the continuous period, and excessive absences over this number could be disregarded by a senior caseworker, provided the employer submitted evidence to show that there would have been serious implications for the business had the excessive absence not been incurred. This was unsatisfactory, as it meant decisions were very subjective, open to challenge, and that there was in fact no limit to the number of days that the senior caseworker could potentially disregard, rendering the rules irrelevant in some cases.
This has now been addressed by the SSHD, and the absolute number of days spent outside of the UK, that will not break continuity are now defined in the rules. There will therefore be no discretion applied to absences that exceed 180 days in any of the 12 consecutive months of the continuous period, regardless of the reasons for the absences.
I trust this answers your questions.
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Well I'll be applying in early March...so I'll let you know if I'm succesfull