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ILR T1 long absence & reason-UKBA reply.Might help other

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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db83
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ILR T1 long absence & reason-UKBA reply.Might help other

Post by db83 » Fri Feb 08, 2013 10:41 pm

Hi Guys

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
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.
And this was the answer...
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
to me

Dear Sir,

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.

Regards,

XXXX

XXX XX|Settlement Operational Policy and Rules| Blue zone, 5th Floor|Capital Building |Old Hall St |Liverpool L3 9PP

Well I'll be applying in early March...so I'll let you know if I'm succesfull :-)
Last edited by db83 on Wed Mar 20, 2013 4:25 pm, edited 4 times in total.
I'm just trying to help !

cs95tdg
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Re: ILR Tier 1 absence <180 days - UKBA reply.Might help

Post by cs95tdg » Fri Feb 08, 2013 10:55 pm

deepakbhadri wrote: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 agree with everything stated other than this. There is still an element of discretion allowed in cases where an applicant has over 180 days in any of the 12 consecutive month periods if the absences were due to serious or compelling compassionate reason. However, discretion will not be allowed for absences that were due to employment reasons as was the case before. See Exceptional cases in the Continuous Residence Guidance on Page 15: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

This page tells you about exceptional cases.
Absences of more than 180 days in each consecutive 12 month period preceding the date of application (in all categories) will mean the continuous period has been broken. However, consideration may still be given to granting indefinite leave to remain (ILR) outside the rules if evidence is provided to show the excessive absence was due to serious or compelling compassionate reasons.
Evidence, in the form of a letter from the applicant setting out full details of the compelling reason for the absence and supporting documents must be provided.
Absences in excess of 180 days in any 12 month period for employment or economic activity reasons are not considered exceptional.
Discretion will only be applied as authorised at senior executive officer (SEO) level.

db83
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Location: Mars

Post by db83 » Fri Feb 08, 2013 10:58 pm

@cs95tdg - I'm with you on that. Not sure why UKBA has made that statement in an email.
I'm just trying to help !

uksettlement
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Contact:
India

Post by uksettlement » Fri Feb 08, 2013 11:00 pm

deepakbhadri wrote:@cs95tdg - I'm with you on that. Not sure why UKBA has made that statement in an email.
Thats because the response is coming from call centre
Thanks!

Disclaimer: I am no immigration lawyer nor am I OISC qualified. Suggestions given by me are based on personal experience of dealing with UKBA. Don't treat my advice as a substitute for legal opinion.

db83
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Joined: Thu May 05, 2011 9:18 am
Location: Mars

Post by db83 » Fri Feb 08, 2013 11:04 pm

Well the other reason I put this post was because - in the past, I've seen a thread where UKBA had replied that even if you are on Tier 1 - you cant take an unpaid leave to visit family, friends, travelling etc. So this might clear that ambiguity.
I'm just trying to help !

cs95tdg
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Post by cs95tdg » Fri Feb 08, 2013 11:20 pm

While it's always good to get confirmation from the UKBA via email & their call centre staff, I'd always take what they say with a pinch of salt. Depending on the person you speak to, you may unfortunately get 'N' number of different answers, to the same question! I always find email correspondence to be the better option. My motto is however, to believe what I'm told in response to a question, if the answer seems logical and fits in with the published immigration rules.

db83
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Location: Mars

Post by db83 » Fri Feb 08, 2013 11:37 pm

I always find email correspondence to be the better option.
I completely agree with you on this. Its always better to get an email than speaking over the phone, as you could print the email out and take it along with your application.

And with "N" answers when you speak to a call centre, I guess thats because they dont do Ctrl C + Ctrl V from canned messages like they do for emails and need to respond live on the call. They also would like to play safe by using a "may" statement - so that they are not quoted. I can see that in the emails as well. :)
I'm just trying to help !

anandh79
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Email Address

Post by anandh79 » Wed Feb 13, 2013 3:40 pm

Hi,

What is the email address of settlement ops team?

REgards
Anandh.B

PKSAM
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Post by PKSAM » Sat Feb 16, 2013 6:29 pm

Guys,

Once Quick question, I have spent 191 days continuously outside UK and it was due to Business work only.

Could I be eligible ? Appreciate any suggestion ?

Has anyone applied ILR with 10+ days extra to 180 days or so and got any success after new ILR rules that have come into effect from 13 Dec, 2012?

Appreciate if anyone can suggest great ideas ? MY ILR is due to apply and would be going to apply in end of March month.

Please suggest ??

Regards,
pksam

HaidarHK
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272 days outside the UK in last five years

Post by HaidarHK » Sun Feb 17, 2013 10:50 pm

Hi guys,

I have been in the UK now for 5 years (completing in March 2013) and I am looking to apply for ILR. My understanding has been that you are not allowed to stay outside the UK for more than 180 days in total over the whole 5 years. Reading this post, I am inclined to think that the 180 days applies to any one year of that 5 year period rather than the whole 5 year period.

For the first 2 years I have been on HSMP visa and then on a Tier 1 General visa for the next 3 years. In totality I have been outside the UK for around 272 days in the last 5 years. No single visit has been for more than 90 days and I have not exceeded the threshold of 180 days in any single year.

Since the last 2.5 years I have had a limited company and I traveled to my home country for work reasons as I was visiting various companies for partnerships - my business bank statements are weak but I can show invitation letters from those companies I went to work with. My business venture did not go very well and even though my limited company still exists and is functional since the last year I have resumed full-time employment and have made enough to qualify the monetary obligation required for ILR.

I am confused and at the moment consulting friends and lawyers frantically arrange for advice so really appreciate if I can get some clarity on this.

1) Should I be worried for spending 272 days outside UK?

2) What documents can I produce which will help prove that the bulk of my travel was for business purpose? There were 2 trips - one for 80 days and the other for 50 days which I want to register as business trips.

Thanks very much for any guidance.

mptj
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Post by mptj » Tue Feb 19, 2013 11:35 am

Hi

I am planning to apply for ILR but wish to know what document proof I would need to support/submit my less than 180 days absence which was mainly due to family visit/holidays. Out of total 05 years, initial 14 months were on work permit (absence 32 days) and remaining time is on Tier1 (around 130 days).

Please help.
Thanks

G

db83
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Post by db83 » Tue Feb 19, 2013 11:56 am

32 days absence acknowledged by the employer as annual leave/.
The other 130 days as Tier 1 doesnt need any proof unles they were compelling or compassionate.

There are hundreds of such posts in this forum answered by Gurus and moderators. Please search and read them
I'm just trying to help !

pr123
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Thanks a lot, db83

Post by pr123 » Sat Mar 02, 2013 9:06 am

Thanks a lot, db83. Your comments and suggestions have helped me a lot and given me the confidence to apply for ILR successfully, even though with a long break.

For those interested, I have given a summary of my case in the post http://www.immigrationboards.com/viewtopic.php?t=127944

mptj
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Post by mptj » Mon Mar 04, 2013 12:34 am

Dear all
I am Form SET (O) applicant
Thankfully I managed to book PEO appointment on 22 March and more or less ready with all docs. Please advice what should I include in regards to 11L of Section 11-documents.
I have arranged the following:
Cover letter
Duly filled SET (O) form
02 photos
salary slips+current Employer letter+ Bank Statments (05 years)
Letter from HMRC (five years)
annual leave letter from previous employer for one year (work permit duration)
Life in the UK test

Kindly advice if i am missing anything and also please clarify on 11L requirements.

Best regards

G

db83
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Location: Mars

Post by db83 » Mon Mar 04, 2013 7:20 pm

Hi Guys, I got my ILR this afternoon..check the below topic for more details about the application

http://www.immigrationboards.com/viewto ... 402#797402
I'm just trying to help !

db83
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Posts: 184
Joined: Thu May 05, 2011 9:18 am
Location: Mars

Post by db83 » Mon Mar 04, 2013 7:34 pm

mptj wrote:Dear all
I am Form SET (O) applicant
Thankfully I managed to book PEO appointment on 22 March and more or less ready with all docs. Please advice what should I include in regards to 11L of Section 11-documents.
I have arranged the following:
Cover letter
Duly filled SET (O) form
02 photos
salary slips+current Employer letter+ Bank Statments (05 years)
Letter from HMRC (five years)
annual leave letter from previous employer for one year (work permit duration)
Life in the UK test

Kindly advice if i am missing anything and also please clarify on 11L requirements.

Best regards

G
mptj - Create a new post, so that sonmeone can answer it
I'm just trying to help !

seba
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ILR Absences clarification

Post by seba » Fri Mar 08, 2013 1:27 am

Hi,
I have read this document recently. Still, I am bit confused by the term "180 days in any consecutive 12 months".. It means that -- In the identified 5 years slots from the date of application, we can be away for out of country upto 180 days in each slot. Does it mean like that? I am sure they will not encourage such cases. If so, in 5 years slot, people can be out of UK more than 2.5 years by considering 180 days in each years slot. :)

or does it sound like: The total absences in 5 years including all slots should not go more than 180 days? if it crossed then that extra days can be spanned in any two or more year slots would be accepted?

can anyone clarify on this pls.?? I have spent almost 270 days outside UK in one stretch. But completed 6+ years frm the date of my first entry to UK.

I dont knw when I can apply and how to span my absences in slots.

any of your advise will be helpful.

thanks

db83
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Location: Mars

Re: ILR Absences clarification

Post by db83 » Fri Mar 08, 2013 10:36 am

seba wrote:Hi,
I have read this document recently. Still, I am bit confused by the term "180 days in any consecutive 12 months".. It means that -- In the identified 5 years slots from the date of application, we can be away for out of country upto 180 days in each slot. Does it mean like that? I am sure they will not encourage such cases. If so, in 5 years slot, people can be out of UK more than 2.5 years by considering 180 days in each years slot. :)

or does it sound like: The total absences in 5 years including all slots should not go more than 180 days? if it crossed then that extra days can be spanned in any two or more year slots would be accepted?

can anyone clarify on this pls.?? I have spent almost 270 days outside UK in one stretch. But completed 6+ years frm the date of my first entry to UK.

I dont knw when I can apply and how to span my absences in slots.

any of your advise will be helpful.

thanks
n the identified 5 years slots from the date of application, we can be away for out of country upto 180 days in each slot. Spot on...

I'd an absence of around 300 days (and 188 days continuous broken down into two 12 month period) in total and got my ILR approved. That is just one of the requirements.

If you are applying on say April 2..
then April 2,2013 - April3,2012 should have less than180 days absence..
and so on for every year

If you were on Tier 2, then you need to get a supporting letter from employer for absences.
If you are on Tier 1 , you dont need any absences

Create a new topic with your situation and the forum members will answerr them
I'm just trying to help !

seba
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ILR Medical supporting letter

Post by seba » Sun Mar 10, 2013 1:47 pm

hello experts,
I have a long break in one of my previous 5 years slot(nearly 270 days at a stretch) except that all my other years break are very minimum like less than 30-40 days. I am planning to apply PEO in April.

1) How much probability of getting my case success?
2) I have got my surgery and my mom's surgery in my long break time. So I am providing my medical docs for both situations. Will that add any advantages to my application?

3) If I provide my medical records and letter from the hospital, does the letter need to be current dated or 1 month before my application date or is that Ok if I submit the hospital letter dated at the time of my treatment( say 2.5 years old date)

Your answers and suggestions would help a lot to decide.

Thanks,

black_bird
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Post by black_bird » Thu Mar 14, 2013 11:37 pm

thanks for posting the letter.

so does this mean we are seeing all applicants having >=180 absence within 1 years or more refused for ILR??


but we didnt know this rule will be interpretted in this way during the 5 years period??? anyone went to court because of this?? thanks

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