ILR - above 180 days :( immigration lawyer says not to apply

Hi guys,

I am in need of real help

I started on HSMP on 6 August 2006. I then converted to Tier 1 in 2008. I am now due to apply for ILR in July. Everything is in order apart from one point.

I have taken a total of 204 days outside UK. All of it is annual leave apart from 21 days which is compassionate as my dad unfortunately passed away.

I have spoken to an immigration lawyer and she says that the chances are 50:50 as it is above 180 days. She said that "fathers death is not really compassionate grounds. It is OK for 2-3 days but not 21 days"

I have read many success stories on this forum and was not worried till today.

Any views?? Do I have a chance with 204 days or shall I look at applying for extension (another 2K expense).

Thanks guys

Rj

Sorry to hear of your loss RJ.

Have you excluded the first and last days of your travels when calculating the days out of UK?

Thank you.

Yes I have, the only thing the lawyer suggested is to take away bank hols and weekends and "somehow get the number below 180". doesnot make much sense to me but ....

Rj

at times immigration lawyers and case workers have knowledge gap as compared to participants of this forum-
it has been established view that personal absences should not exceed 180 days over a period of 5 years and no single absence should exceed 3 months unless there are compelling compassionate circumstances.
There is a circular of UKBA for guidance of legal representative for same day services at PEO. An extract from that reads as under:

"If any compassionate reasons are included in an application i.e an absence of over 3 months at any one time-
If there are any compassionate reasons included in any settlement application in respect of an absence of over 3 months at any one time, evidence supporting this must be provided e.g. death certificate/maternity record --- i.e. a full explanation into the reason of absence."

In view of above extract from a UKBA document for legal representative if an immigration lawyer is saying 2-3 days absence only for death of father than that is knowledge gap and nothing else. In such circumstances UKBA can ignore absence of over 3 months at any one time. Death and maternity are illustration of compassionate reasons and there can be more compassionate basis in any given case

Many thanks Jami.

I have spoken to another lawyer today who was convinced that it is not a problem. I have asked her repeatedly that other lawyers are very worried but she was very sure and said that we deal with such cases routinely and can assure you there is no problem as long as you have the required documentation.

So guess she has read the relevant part that you mentioned.

Any other suggestions? anyone ?

Rj

trust me, the first lawyer was rubbish - many with over 180 days and most of Annual Leave have applied in person and been successful.
In your case, any lawyer can make a strong case for you without any trouble at all. Good for you to take a second opinion and to go ahead - dont worry at all.

If it were possible, you can just get hold of proof for the compassionate leave and apply in person and you should have a letter stating you were on annual leave and paid salary in the UK during those periods - with this in hand you can apply in person as well

All the best
KP

Thanks KP.

have got a letter from work saying they gave me compassionate leave for 21 days when my dad passed away and his death certificate. It is sad when one has to provide so much of proof for an unfortunate event. Anyhow..life goes on

Rj

rj_ilr wrote:I have spoken to an immigration lawyer and she says that the chances are 50:50 as it is above 180 days. She said that "fathers death is not really compassionate grounds. It is OK for 2-3 days but not 21 days"

I think that there's more than a 50:50 chance of success.

I'm probably being repetitive here...but my understanding over absences is as follows:

1) While the applicant is required to list all kind of absences in the application the following 2 absence categories are ignored from the 180 day allowance:
a) Paid annual leave
b) Business trips
Both need appropriate documentary evidence of course

2) The only exception to above is when a single trip exceeds 90 days; in which case it becomes more complicated and one has to provide a stronger evidence for the reasons for absence but there is a strong chance that this is perceived as a break in residency - resetting the 5 year period to zero at the point of absence.

Can someone please correct my understanding?

While the applicant is required to list all kind of absences in the application the following 2 absence categories are ignored from the 180 day allowance:
a) Paid annual leave
b) Business trips

All absences count towards the 180 day period however this is not strictly enforced.
if absences are greater than 180, one needs to explain why ie take out business absences or those under compassionate ground, like in your case.
The 5 yr period should not be broken by > 3 month- this is the key.
I do not think you will have any problems, you should apply yourself at a PEO with the relevant documents.

Thank you guys. I am going to apply for ILR (fingers crossed) based on the comments and it does look like I have a fair amount of chance of success.

In case they refuse, I will apply for extension.

Sometimes, they keep the documents for further consideration. I am thinking of asking for the documents straight away even if with a refusal. I do not want them to keep it for 4-6 weeks and then refuse it as my visa would have expired by then. Dont want to take that chance.

On a separate note, the replies here are better than a lawyers advise any day

Rj

229 days.
350 days.
229 days.
220 days.

Hi Sushdmehta,

these guys have a business trip absence unlike mine. but a majority of mine is compassionate and hopefully would be considered such.

Total 204
Compassionate 21
Over the limit 3days... fingers crosses

Rj

rj_ilr wrote:Thank you guys. I am going to apply for ILR (fingers crossed) based on the comments and it does look like I have a fair amount of chance of success.

In case they refuse, I will apply for extension.

Sometimes, they keep the documents for further consideration. I am thinking of asking for the documents straight away even if with a refusal. I do not want them to keep it for 4-6 weeks and then refuse it as my visa would have expired by then. Dont want to take that chance.

On a separate note, the replies here are better than a lawyers advise any day

Rj

Hi Mine is exactly similar situation, i had 184 days of absences and only 33 days are unpaid leave. I have only 5 weeks of visa left over from now, if i apply for ILR now (same day premium) iam worried if PEO will refuse on grounds that extra 4 days of absences abroad and will keep all the documents with them for another 5 or more weeks finally then i will receive the documents in post saying my ILR has been refused and i have no VISA to stay. ultimately i have to leave UK with my wife and son born in uk.

For the above reason i have simply decided to extend my tier1 visa and then go for ILR just for peace of mind.

Hi,

I have decided to apply for ILR. if they want to keep the docs I can always say no and get it back. I am going via a very experienced immigration firm and they seem not worried at all about the gap.

Reading the home office guidance for case workers, it does say that annual leave etc can be discounted and the unpaid leaves etc should not be more than 180 days.

So lets see what happens.Will let everyone know of my outcome

Rj

could you please tell me about the immigration firm ...

It is Philip and Gamble... google it. it is in Croydon.

Rj

I had 184 days outside the UK and i just got my ILR. I went to the PEO in Croydon and they didnt ask anything about it

Id like to share my experience as I was very worried beforehand -

Applied for ILR on Ancestral Visa, at Croydon.

Had all documentation asked for, ie bank statements, payslips, birth certs etc.

But - had about 250 days out of the country. I learned from this forum that travel days dont count, that brought it down to 199.

I had a letter from work stating that I travel regularly for work - but not specifying which trips. I was obviously clear which trips were for work or pleasure, but even removing work trips brought the total down to only 186.

So I was pretty worried, but as it happened, they took my application, asked me to sit down and wait, and 20-30 minutes later it was approved. No additional questions, no discussion.

I cant say how much discrection the officer applied, or whether im an exception or a common situation - but im sure there are folk out there who are worried, it may be good to know there was one person in the same scenario that had a success. Good luck to all.

I believe if there is no trip over 90 days ... and if all your trips out of the UK are normal annual paid leave ... then it should be alright ...
great news anyway ...

thanks

I have seen here m any guys said that travel dates not counted.. could you please confirm this .. and where is written ? ... I didnt find any piece of paper on the home office website says that ...

I have 175 days absence and if I will exclude travel dates they will be 144 !!!!

Polat wrote:I have seen here m any guys said that travel dates not counted.. could you please confirm this .. and where is written ? ... I didnt find any piece of paper on the home office website says that ...

I have 175 days absence and if I will exclude travel dates they will be 144 !!!!

It may be quoted somewhere but common sense and wording of the form is more than enough to understand this. It is clearly stated in the form to mention number of days absent from the UK.

Actual travel day is not counted because you were still IN the UK and not absent or OUT of it So if you were in the UK for even 5 minutes out of 24 hours, then you are considered to be in UK for that entire day as you were not completely absent from it

KP

Hi I am in different situation
Can any one advice?
Previous Employer
Departure Date Arrival Date Days Reason
28/07/2006 11/08/2006 13 Paid Annual Leave
05/01/2007 19/01/2007 13 Paid Annual Leave
23/11/2007 30/12/2007 36 Paid Annual Leave
10/06/2006 21/06/2008 10 Paid Annual Leave
05/12/2008 21/03/2009 105 Paid Annual Leave till 21/12/2008 as was made redundent but on garden leave till 21/12/2008. I have P45 and employer letter confirm all my above paid leave and employment termination date. So my unpaid leave is 89 days and not 105 days.
Current Employer
18/12/2010 17/01/2011 29 Paid Annual Leave

Total days outside UK is 206.
Any comments..

HSMPgafla wrote:Hi I am in different situation
Can any one advice?
Previous Employer
Departure Date Arrival Date Days Reason
28/07/2006 11/08/2006 13 Paid Annual Leave
05/01/2007 19/01/2007 13 Paid Annual Leave
23/11/2007 30/12/2007 36 Paid Annual Leave
10/06/2006 21/06/2008 10 Paid Annual Leave
05/12/2008 21/03/2009 105 Paid Annual Leave till 21/12/2008 as was made redundent but on garden leave till 21/12/2008. I have P45 and employer letter confirm all my above paid leave and employment termination date. So my unpaid leave is 89 days and not 105 days.
Current Employer
18/12/2010 17/01/2011 29 Paid Annual Leave

Total days outside UK is 206.
Any comments..

I think the 105 days abroad (in one go) could be a potential hiccup in the ILR. But good luck anyway.