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Yikes! Am I in trouble?

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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unxepktylwvhl
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Joined: Tue Apr 19, 2011 10:51 pm

Yikes! Am I in trouble?

Post by unxepktylwvhl » Fri Apr 29, 2011 1:24 pm

Hi There,

First of all, many thanks to the forum members and moderators for helping me out with my previous questions. Highly appreciated.

I'm finalizing my ILR application and apart from certain minor points, I really had no reason to worry and felt that my application will be a breeze... till now :S

While randomly checking out the various guidance posted in UKBA, I came to http://www.ukba.homeoffice.gov.uk/sitec ... cross-cut/ specifically, Indefinite leave to remain - calculating continuous period in UK.

According to this document:

Discretion in cases where continuous residence has been broken

Time spent here may exceptionally be aggregated, and continuity not insisted upon, for cases where:

• There have been no absences abroad, see calculation of the five year period for settlement, and authorised employment or business in the UK has not been broken by any interruptions of more than three months or amounting to more than six months in total for the whole five year period. Decisions in such cases must be taken at HEO level or above.

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 UK. No single absence abroad must be for more than three months at a time and they must not total more than six months. Where continuous residence has been broken, periods may be aggregated or shortfalls disregarded only with the approval of an SEO or Grade 7.


Coming back to my case, I was away form the UK for 99 days back in in 2007, primarily for a business trip (I was on a secondment) that lasted 79 days, the rest 20 days, I spent on holiday (annual leave, paid) before flying back to the UK. During this whole time I was on UK payroll, paying tax etc. in the UK and my employer is more than happy to substantiate my claims in writing. In fact my flight back was even paid by my company since they were grateful for the services I rendered.

I'm a bit stressed now that I seem to have broken the rule for continuous 3 months absence?
Also, the guidance talks of SEO or Grade 7 approval, god knows what that is, but does that mean that I can't apply in person at a PEO too??

By the way, I should mention that my during my 99 days absence, I was on work permit, which I switched to Tier 1 later on and will be applying under Tier 1 for my ILR.

Many thanks and have a nice weekend.


P.S. According to the same guidance, it seems that one can apply for ILR, even though they haven't necessarily spent 5 years, from their entry into the UK up to the application date, given that the date of issue of their entry clearance and the actual arrival in the UK is no longer than 3 months. If true, I'm sure that would be positive news for some :)
Last edited by unxepktylwvhl on Fri Apr 29, 2011 4:44 pm, edited 2 times in total.

timarli
Junior Member
Posts: 63
Joined: Thu Feb 17, 2011 2:03 pm

Post by timarli » Fri Apr 29, 2011 1:57 pm

I would at least provide a very stong letter from my employer explaining them the "necessity" of the "business trip" and write my own cover letter.

I do'nt know the details but it may even be the case that; "the company planned to send you on secondment for 60 days but they had to extend it by 19 days which in turn extended ur absence to 99 days"

As for the 3 months case; I think it's solely related to the 'first entry date'. This is the one I'm struggling. I'm two months short as my entry has been delayed by the company for two months. Got the visa in September but came in December.

Btw tHese are just my ideas mate. I'm not an expert nor a professional in immigration law.

jami
Member of Standing
Posts: 270
Joined: Sun Oct 21, 2007 12:06 pm
Location: Lahore

Post by jami » Fri Apr 29, 2011 4:41 pm

No need to worry on 99 days as 79 were for business purpose- In the SET(O) Form fill these separately in "reason " column. This situation has been taken care at question D2/D3 at page -20 of SET(O)
Moreover, guidance appears to faulty and hope fully be corrected soon as explained blew:
It states,


"Discretion in cases where continuous residence has been broken

Time spent here may exceptionally be aggregated, and continuity not insisted upon, for cases where:

• There have been no absences abroad, see calculation of the five year period for settlement, and authorised employment or business in the UK has not been broken by any interruptions of more than three months or amounting to more than six months in total for the whole five year period. Decisions in such cases must be taken at HEO level or above.

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 UK."


After the above text the fallowing sentence does not make any sense and negates the above stipulation of "longer absences"


"No single absence abroad must be for more than three months at a time and they must not total more than six months."

I think above extract pertained to first stipulation of shorter absences and has been inserted again in second stipulation of longer absences due to some mistake. Above of modernised guidance is in conflict with similar wording used at page 46/47 of another guidance about settlement of Tier1

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

Whereas modernized guidance after correction should read as under :

Discretion in cases where continuous residence has been broken

Time spent here may exceptionally be aggregated, and continuity not insisted upon, for cases where:

• There have been no absences abroad, see calculation of the five year period for settlement, and authorised employment or business in the UK has not been broken by any interruptions of more than three months or amounting to more than six months in total for the whole five year period. Decisions in such cases must be taken at HEO level or above.

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 UK. Where continuous residence has been broken, periods may be aggregated or shortfalls disregarded only with the approval of an SEO or Grade 7.

unxepktylwvhl
Newly Registered
Posts: 20
Joined: Tue Apr 19, 2011 10:51 pm

Post by unxepktylwvhl » Fri Apr 29, 2011 6:17 pm

Thank you Jami for your kind reply.

Yes, you are spot on regarding D2, D3 on SET(O). They wouldn't really ask about it unless are not happy with exceeding the 3 month criteria at all.

Have a nice weekend.

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