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New rules - Allowable absences for ILR to be relaxed

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

Lucapooka
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Post by Lucapooka » Wed Nov 28, 2012 12:50 pm

Yes, but the point remains the same. Annual leave is generally well-defined and very long absences (running to several months) being defined annual leave will perhaps be difficult to justify. We don't know the details yet so it's only speculation at this time.
Last edited by Lucapooka on Wed Nov 28, 2012 12:52 pm, edited 1 time in total.

ukswus
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Post by ukswus » Wed Nov 28, 2012 12:52 pm

Lucapooka wrote:Yes, but the point remains the same. Annual leave is defined and very long absences (several months) being defined a annual leave will perhaps be difficult to justify.
If they demand this evidence, then yes. At the moment, it's is not clear to me what evidence on absences (if any) they will expect from Tier 1 people. Now they only mention a personal letter, to be given for certain absences.

shin25
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Post by shin25 » Wed Nov 28, 2012 12:56 pm

Lucapooka wrote:Yes, but the point remains the same. Annual leave is generally well-defined and very long absences (running to several months) being defined annual leave will perhaps be difficult to justify. We don't know the details yet so it's only speculation at this time.
Hello Gurus

Does this mean that for every leave we will have to get a letter from the company for all the past 5 years? How about self employed ? what happens to them?
Does the above rule mean it is 180 days * 5 = 900 total permissible leave in which we can only show 35 * 5 = 175 days as paid leave and all other can only be on the grounds of compassionate or work leaves? Please advice

ukswus
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Post by ukswus » Wed Nov 28, 2012 1:00 pm

shin25 wrote:
Lucapooka wrote:Yes, but the point remains the same. Annual leave is generally well-defined and very long absences (running to several months) being defined annual leave will perhaps be difficult to justify. We don't know the details yet so it's only speculation at this time.
Hello Gurus

Does this mean that for every leave we will have to get a letter from the company for all the past 5 years? How about self employed ? what happens to them?
Does the above rule mean it is 180 days * 5 = 900 total permissible leave in which we can only show 35 * 5 = 175 days as paid leave and all other can only be on the grounds of compassionate or work leaves? Please advice
I don't think anyone can answer your questions at this point. You need to wait until formal guidance is released.

geriatrix
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Post by geriatrix » Wed Nov 28, 2012 4:31 pm

Lucapooka wrote:Yes, but let's examine this in more detail
Agree. I suspect there may be more than meets the eye ... and the amended policy guidance will, hopefully, help lay some doubts to rest.

According to the statement of policy:
Skilled migrants who settle here are required to have maintained a clear connection with and be contributing to the UK, but need flexibility to be able to travel for their legitimate business. Absences of up to 180 days in each of the calendar periods of 12 months for the qualifying period of continuous residence will therefore be permitted. Absences must be for a reason that is consistent with the person’s employment or economic activity – so for example business trips, conferences, research collaborations, periods of annual leave – or for serious or compelling reasons such as the serious illness of a close relative. The current absence allowance will be maintained as it is now for Tier 1 Investors and Entrepreneurs, with no restriction on the reason for the absence. Tier 1 Exceptional Talent is being brought into line with that.
So, I (personally) do not expect that non-sponsored migrants may be offered a blanket "180 days in 12 months" concession without need for any documentary evidence(s) to support the reasons of their absences.

That's just me. Others may have a different opinion ... and may well be correct in their interpretation. I am holding my breath for now ... waiting for the policy guidance to be amended, and clear the mist.
Life isn't fair, but you can be!

ukswus
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Post by ukswus » Wed Nov 28, 2012 5:41 pm

sushdmehta wrote:
Lucapooka wrote:Yes, but let's examine this in more detail
Agree. I suspect there may be more than meets the eye ... and the amended policy guidance will, hopefully, help lay some doubts to rest.

According to the statement of policy:
Skilled migrants who settle here are required to have maintained a clear connection with and be contributing to the UK, but need flexibility to be able to travel for their legitimate business. Absences of up to 180 days in each of the calendar periods of 12 months for the qualifying period of continuous residence will therefore be permitted. Absences must be for a reason that is consistent with the person’s employment or economic activity – so for example business trips, conferences, research collaborations, periods of annual leave – or for serious or compelling reasons such as the serious illness of a close relative. The current absence allowance will be maintained as it is now for Tier 1 Investors and Entrepreneurs, with no restriction on the reason for the absence. Tier 1 Exceptional Talent is being brought into line with that.
So, I (personally) do not expect that non-sponsored migrants may be offered a blanket "180 days in 12 months" concession without need for any documentary evidence(s) to support the reasons of their absences.

That's just me. Others may have a different opinion ... and may well be correct in their interpretation. I am holding my breath for now ... waiting for the policy guidance to be amended, and clear the mist.

On the other hand, I have my doubts that from December 2012, Tier 1 applicants will suddenly need to justify every single absence by proving it was for the purpose of taking annual paid leave, for work-related travel as well as for "compassionate" reasons. Clearly, this would disqualify almost all self-employed people, as well as a very large proportion of employed Tier 1 holders, many of whom took some days as an unpaid leave (e.g., some holidays in between employments).

geriatrix
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Post by geriatrix » Wed Nov 28, 2012 6:09 pm

I suspect the same or something similar ... and that is why I was questioning earlier the way the immigration rules (amendments) have been drafted for either sponsored and non-sponsored migrants.

Eagerly waiting for the amended policy guidance!!
Life isn't fair, but you can be!

sojan
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Post by sojan » Mon Dec 03, 2012 1:54 pm

180days an year absence is very lucky :)

But I feel there is a disconnection between the "Statement Of Policy" on PBS by UKBA and the actual parliament statement.

LondonLife
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Post by LondonLife » Tue Dec 04, 2012 3:24 pm

Does anyone know when the exact guideline/policy will be published?
Does it happen few days before or exactly on midnight the day before changes comes in effect 13th Dec?

Eliyas
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New Set(o) form after Dec 13 2012?

Post by Eliyas » Tue Dec 04, 2012 6:40 pm

Will there be a new Set(o) form after the Dec 13, due to the clarification in the rules?

Cheers,
Eliyas

jsamad
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Post by jsamad » Thu Dec 06, 2012 12:13 pm

Should we need to provide proof for the period outside UK even if its less than 90days in continuous or less than 180days in overall 5 year period for Tier -1 General applicants?

cs95tdg
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Post by cs95tdg » Thu Dec 06, 2012 12:39 pm

We will need to wait patiently until next week to get the answers to the last few questions raised on this thread. I expect to see the amended/confirmed policy guidance, published by the UKBA on Dec 13th & not before. Hopefully there will be more clarity on the areas that are slightly ambiguous & therefore subject to individual interpretation at the moment. Whether or not new application forms (E.g. SET(O)) will be published will depend on whether any amendments are required to accomodate the stated changes.

ryan2020
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Post by ryan2020 » Thu Dec 13, 2012 8:43 am

today is 13th December. i can't see any new set o form or set o guidance pdf ?

please comment.

cs95tdg
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Post by cs95tdg » Thu Dec 13, 2012 10:26 am

ryan2020 wrote:today is 13th December. i can't see any new set o form or set o guidance pdf ?

please comment.
Please see http://www.immigrationboards.com/viewto ... ht=#748278

New guidance has now been published.

M2008
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Post by M2008 » Thu Dec 13, 2012 10:59 am

Looks tier 1 (general) visa holder no need to submit any letters for absenses. But it is better take print out of rule if they demand for any letter

(j) The applicant must provide the specified documents in paragraph 245CD-SD to evidence the reason for the absences set out in paragraph 245AAA, where the absence was due to a serious or compelling reason.

245CD-SD Specified documents
The specified documents referred to in paragraph 245CD(j) are:

A personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons - e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK.

245AAA. General requirements for indefinite leave to remain

(b) Except for periods when the applicant had leave as a Tier 1 (General) Migrant, a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, a Tier 1 (Exceptional Talent) Migrant, a highly skilled migrant, a businessperson, an innovator, an investor, a self-employed lawyer or a writer, composer or artist:

(i) the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor; and

(ii) any absences from the UK during the five years must have been for a purpose that is consistent with the continuous employment in (i), including paid annual leave or for serious or compelling reasons.

SriGan
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Does it override 90 days rule?

Post by SriGan » Thu Dec 13, 2012 11:03 am

Since 180 days or less are allowed absences in any calendar month, does it mean that continuous leave of 90 days are NOT in effect any more?

M2008
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Post by M2008 » Thu Dec 13, 2012 11:18 am

No news on 90 days...but 180 days in 5 years.

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain;

SriGan
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Post by SriGan » Thu Dec 13, 2012 11:47 am

In the form I could see that,
Please confirm that you have not been absent from the United Kingdom for more than 180 days in any 12 calendar months during the specified period of continuous leave:

I have not been absent for more than 180 days in any 12 calendar months during the specified period of continuous leave.
I am perceiving it as that in any of the 12 month period, our absence should not exceed 180 days and we are allowed to take 180 or less abscence in each year.Also this rule makes the 90 days rule void.

Is my understanding correct?

jsamad
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Post by jsamad » Thu Dec 13, 2012 12:00 pm

Does this mean, if a person who has been on WP before converting it into Tier1(General) and if that person has any leave while on WP should provide proof for the leaves?
M2008 wrote:Looks tier 1 (general) visa holder no need to submit any letters for absenses. But it is better take print out of rule if they demand for any letter

(j) The applicant must provide the specified documents in paragraph 245CD-SD to evidence the reason for the absences set out in paragraph 245AAA, where the absence was due to a serious or compelling reason.

245CD-SD Specified documents
The specified documents referred to in paragraph 245CD(j) are:

A personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons - e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK.

245AAA. General requirements for indefinite leave to remain

(b) Except for periods when the applicant had leave as a Tier 1 (General) Migrant, a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, a Tier 1 (Exceptional Talent) Migrant, a highly skilled migrant, a businessperson, an innovator, an investor, a self-employed lawyer or a writer, composer or artist:

(i) the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor; and

(ii) any absences from the UK during the five years must have been for a purpose that is consistent with the continuous employment in (i), including paid annual leave or for serious or compelling reasons.

pkumar
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Post by pkumar » Thu Dec 13, 2012 7:25 pm

i am confused reading different topics ... seems like new form and guidance still not there?

Eliyas
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New set(o) form and guidance is available now.

Post by Eliyas » Thu Dec 13, 2012 8:49 pm

New set(o) form and guidance is available now.

Refer to ukba website...

SONAKSHI
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Post by SONAKSHI » Thu Dec 13, 2012 8:57 pm

hi- I can find the new form but still cannot find the guidance.
Less is More

madhumesh
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Post by madhumesh » Thu Dec 13, 2012 9:25 pm

I am also wondering impact of this on delayed entry of more than 90 days in first year. My question is

1) What happens if entry is delayed by more than 90 days but less than 180 days, can this be treated as absence for compelling reason?

2) if delayed entry is not treated as absence, then is it not unfair on these people, and can this be open to legal challenges?

cs95tdg
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Post by cs95tdg » Fri Dec 14, 2012 1:23 pm

madhumesh wrote:1) What happens if entry is delayed by more than 90 days but less than 180 days, can this be treated as absence for compelling reason?
Delayed Entry is independent to the absence threshold for ILR. I.e. you cannot be absent from the UK until you first enter the UK. The concession for late entry still stands as 3 months, there is no change in that.

If someone entered the UK over 3 months after their EC then that would mean that their ILR clock would begin from the date of entry instead of EC, that is all.

Independent to this, they will need to meet the absence requirements from the date of entry.

cs95tdg
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Post by cs95tdg » Fri Dec 14, 2012 1:26 pm

jsamad wrote:Does this mean, if a person who has been on WP before converting it into Tier1(General) and if that person has any leave while on WP should provide proof for the leaves?
According to my understanding of the rules and case worker guidance, the answer to your question is yes. You will need a letter from your WP employer to account for your absences (Annual Leave & Business related) while here as a WP Holder.

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