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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

jager
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New rules - Allowable absences for ILR to be relaxed

Post by jager » Thu Nov 22, 2012 2:46 pm

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

The Rules are being amended to clarify the absences that are permitted from the UK during the continuous period of lawful residence required for indefinite leave to remain in all these categories. Up to a maximum of 180 days in any of the 12 calendar month periods preceding the date of the application for indefinite leave to remain may be spent outside the UK, provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence.

Effective from 13 December.

geriatrix
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Post by geriatrix » Thu Nov 22, 2012 3:02 pm

Relaxed or strict(er)?

1. Till date "limit on absences" was just a policy guidance, not a rule.
2. From 13-Dec-12, limit on absences become a specified immigration condition / rule for settlement.
3. The maximum is a constant 180 - including absences due to employment, annual leave, business reason or compelling reason.
5. The earlier policy of "absences due to employment / annual leaves / business reasons" being disregarded (when supported by letter from employer or authorised personnel when in self-employment) from the 180 will no longer be the practice.
Up to a maximum of 180 days in any of the five consecutive 12 calendar month periods preceding the date of the application for indefinite leave to remain may be spent outside the UK, provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence.
The text in red is missing in the explanation / summary.
The text in bold explains the logic behind point 5 above.

The relevant immigration rule:
(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;
It will be interesting to see if the "no single absence of more than 90 days" is dropped from or amended in the policy guidance(s) after 12-Dec-12. IMHO, the 90 days single absence may be dropped but it seems that 180 days in 5 years will be followed very strictly.
Last edited by geriatrix on Thu Nov 22, 2012 3:48 pm, edited 2 times in total.
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broccoli
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Post by broccoli » Thu Nov 22, 2012 3:40 pm

@sushdmehta: here's an excerpt from the ministerial statement:

"These changes clarify that absences of up to 180 days in a 12 month period are permitted, provided the absence is for a reason that is consistent with the migrant?s purpose of stay in the UK or for serious or compelling reasons."

Is it safe to assume that means up to 180 days per year are allowed as long as it's for work, paid leave or compelling reasons?

jager
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Post by jager » Thu Nov 22, 2012 3:44 pm

sushdmehta wrote:IMHO, the 90 days single absence may be dropped but it seems that 180 days in 5 years will be followed very strictly.
I read it as up to 180 days per year in every year (i.e. up to 900 days in total) are permitted. If so, that seems to be less stringent than before.

geriatrix
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Post by geriatrix » Thu Nov 22, 2012 3:47 pm

jager, broccoli - read the immigration rule .. I have quoted it in the response above. It is available under paragraph 116 of the document.

900 days in 5 years .. for Tier 1 (General) or Tier 2!!!! I wish! :lol:
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jager
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Post by jager » Thu Nov 22, 2012 3:53 pm

sushdmehta wrote:jager, broccoli - read the immigration rule .. I have quoted it in the response above. It is available under paragraph 116 of the document.
In order for ILR to be granted,

(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;

If I'm absent for 179 days per year, for every year of the 5 years, please explain why this would not satisfy "a period of 180 days or less in any of the five consecutive 12 month periods"? It's not 180 days over all of the consecutive periods (or else why would they bother to separate it into 12 month periods anyway)?

geriatrix
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Post by geriatrix » Thu Nov 22, 2012 3:59 pm

Where and when did I say it will or will not?

I have only pointed out a discrepancy between what the immigration rule states and what the explanation / summary states - missing text in the latter.

The meaning is completely different when one says:
Up to a maximum of 180 days in any of the 12 calendar month periods preceding the date of the application
to that when one says:
Up to a maximum of 180 days in any of the five consecutive 12 calendar month periods preceding the date of the application


It is simple English!!

You are basing your opinion on the explanation only, and I on the immigration rule and on the explanation with the missing text included. There lies the difference in our individual interpretations.
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broccoli
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Post by broccoli » Thu Nov 22, 2012 4:06 pm

@sushdmehta: but the ministerial statement is much clearer in my opinion. Don't you agree?

And the way I'm understanding both statements you quoted is:
If someone is applying in June 2017, then every June to June from 2012 to 2017 must have at most 180 days away.

Correct me if I'm not making sense.

jager
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Post by jager » Thu Nov 22, 2012 4:08 pm

sushdmehta wrote:Where and when did I say it will or will not?
"900 days in 5 years .. for Tier 1 (General) or Tier 2!!!! I wish! "

...and yet that seems to be the precise implication of these documents.

samira_uk
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Post by samira_uk » Thu Nov 22, 2012 4:12 pm

It is exactly my question. I am confused and dont know these new rules are good or bad?

1-It is said only for employment purposes, then we cannot exit the country for holiday and visit the family?

2-What about the previous years? For example, I was out of the UK for 70 days at once in my first year which was not employment related as I did not find a good job here and wanted to look for other options. Then what will be my situation? They will refuse because I was out of the UK for non-employment related matter?

But one good point is that:
Tier 1 G does not need to be economically active throughout the 5 years and it is stated clearly in the new changed and therefore the caseworker cannot ask for unnecessary documents anymore.

Thank you in advance.
Last edited by samira_uk on Thu Nov 22, 2012 4:14 pm, edited 1 time in total.

wpilr_nov12
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Post by wpilr_nov12 » Thu Nov 22, 2012 4:13 pm

Page, 5, 14 (to name a couple) have these exact words:

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

It remains - 180 days over 5/4 yrs.
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geriatrix
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Post by geriatrix » Thu Nov 22, 2012 4:24 pm

Don't worry! It is just a matter of waiting for 3 more weeks ..... it will be clear on 13-Dec-12 whether it is 180 or 900 days in a five year period.

No point in arguing over the figures, based on what I tend to believe in (immigration rule) or what you may believe in (explanation / summary or ministerial statement). After all, all this argument can be just meaningless thanks to a careless proof reader!
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samira_uk
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Post by samira_uk » Thu Nov 22, 2012 4:25 pm

It seems that I made a mistake and this paragraph is not applicable to Tier 1 G and applicable to Tier 2.

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.


In that case, there new changes are a xmas gift for Tier 1 G holders.

freemind76
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Post by freemind76 » Thu Nov 22, 2012 4:37 pm

What if somebody entered after 90 days of getting the T-1 G visa as in my case? Do I need not take second extension?

Caveat
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Post by Caveat » Thu Nov 22, 2012 4:45 pm

It is 180 days for every 12 months; so, in effect, 900 days.
Last edited by Caveat on Thu Nov 22, 2012 4:47 pm, edited 1 time in total.

jager
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Post by jager » Thu Nov 22, 2012 4:45 pm

sushdmehta wrote:Don't worry! It is just a matter of waiting for 3 more weeks ..... it will be clear on 13-Dec-12 whether it is 180 or 900 days in a five year period.
These documents are what's going to be implemented on 13 December. I don't know what other documents are going to shed light on it.

Also, the subject line at the moment is a bit misleading - it isn't just PBS ILR, but also applies to non-PBS work categories (incl. old work visas, UK ancestry etc.)

Caveat
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Post by Caveat » Thu Nov 22, 2012 4:52 pm

There will always be a statement of policy which will expand further.

para 7.33 of the statement of changes make clear which routes of entry it applies to.

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Post by Caveat » Thu Nov 22, 2012 5:04 pm


broccoli
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Post by broccoli » Thu Nov 22, 2012 8:50 pm

@sushdmehta: you are not capitalizing on the word "any" in what you quoted.
If you take it into consideration, the statements seem to describe a 180 days rule "per" year, for the 5 consecutive years preceding the application.
I might be wrong.

geriatrix
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Post by geriatrix » Thu Nov 22, 2012 9:02 pm

broccoli wrote:@sushdmehta: you are not capitalizing on the word "any" in what you quoted.
If you take it into consideration, the statements seem to describe a 180 days rule "per" year, for the 5 consecutive years preceding the application.
I might be wrong.
Very valid point!!! Guess I was fixated about one point (that such relaxation wasn't possible) and read selectively!! :oops" big time!
Best that I remove my post to avoid any further & unnecessary confusion.

Bonanza indeed then!! I can't wait for 13-Dec-12 to pass by!! :D
Last edited by geriatrix on Thu Nov 22, 2012 9:39 pm, edited 3 times in total.
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uknotts
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Post by uknotts » Thu Nov 22, 2012 9:06 pm

Refer to the Statement of Policy as the following link
http://www.homeoffice.gov.uk/publicatio ... iew=Binary

It is stated on page12 that:
From 13 December 2012 we will be making the following changes:
In practice, we have not taken continuous residence to mean that there can be no absence at all from the UK and have overlooked short absences. The level of permitted absences is not specified in the Immigration Rules, except in the case of Tier 1 Investors and Entrepreneurs, where it is 180 days in a 12 month calendar period. This has led to some inconsistency in the absences that have been allowed and uncertainty for applicants. Also, employers have told us that senior executives, researchers and academics often spend longer periods than are generally allowed overseas due to the nature of their work and these absences frequently prevent indefinite leave to remain being granted.
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.


Therefore I think the limit should be 180 per year.

Caveat
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Post by Caveat » Thu Nov 22, 2012 9:53 pm

Apologies, trying to get to grips with the website via handheld. Yes, you are right it is the flesh to the bones of the Rules. I think you have to read it as there are 5 x 12 month periods. So, the applicant will not have broken a period of valid leave where he has been absent for a period of 180 days in any of those 12 month periods of which there are 5 and must be consecutive. I think the word consecutive is designed so that the absences (say 320 days) if taken in a 12 month period cannot be carried/spread. Perhaps not so far removed form the 12 consecutive months out of the 15 year period for Tier 1 migrants.

If you refer to Table 6 of Appendix A for Tier 1 E (which we know is 12 x )it states "the applicant has spent the specified continuous period lawfully in the UK, with absences from the UK of no more than 180 days in any 12 calendar months during that period." The "180 days in any 12 calendar months" is the same as the statement of changes, albeit without consecutive. Perhaps its inclusion was to cover a potential loophole.

That's how I interpret it (although it might not be a carefully worded one!). I have on good authority that it is 900 days.

Best

pkumar
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Post by pkumar » Thu Nov 22, 2012 10:29 pm

Will this rule be retrospective? ... i.e. someone in 2009 was away for 179 days in just that one year will be fine?

broccoli
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Post by broccoli » Thu Nov 22, 2012 10:29 pm

@sushdmehta: not a problem :) glad I finally made sense! :) Best of luck lady / bro (sorry I never asked you about your gender before)

Unfortunately for me, ILR is a loong loong way away (you can tell by another thread I've started that what i spent here previously won't count). Also, I'm at risk of losing my job any month now due to lay offs (been notified it's very likely). And I don't see myself finding a new job easily, let alone RLMT and all the side problems (not even counting the possibility of having to do all that within a 60 days curtailment period if I lose my job).
Life is life. That new rule would have came in handy, had the odds of a long career been better.

wf
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Post by wf » Thu Nov 22, 2012 11:07 pm

Looks good at first glance, however:
provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence.
To me this implies that absences outside of these circumstances (ie: unpaid leave) are not permitted at all.

Whereas previously annual leave was excluded from the 180 day(in 5 years) period which could include unpaid leave etc.

It seems draconian - for example contractors, who do not receive annual leave could not leave the country to holiday?

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