ILR deferred: one business trip more than 90 days

Hi,

I had my ILR appointment today at Croydon and unforutnately, my application was refused and referred to a Senior case worker/Refusal officer. They have kept my Passport and application and will inform me in 2-4weeks.

I was applying under SET (O) form along with my wife as dependant. We had all documents, everything was fine. Only issue was I had business trip more than 90 days (about 3.5 mths) and I had provided a letter from my employer (Tier 1 investment bank) stating that I was on business and was being paid salary and hence, paid taxes in UK in this period.

Inspite of this my application got refused and I was very surprised. I was under impression if you have letter from employer stating absence was due to business trip and you get paid in UK one should be fine?

I will now be anxiously waiting for the response from senior caseworker.

Did anyone else had similar experience? I have read so many places in this forum people who have more than 90 days absence and everywhere it states if one has a letter from employer justifying the absence it should be fine?

Any comments/advise would be very helpful as I am quiet disappointed by this specially when you pay more than 2000 pounds in fees.

Thanks.

sorry to hear that
It appears to be first such refusal
Please give full facts of your over all absences

I also think it is first of the kind refusal atleast on this forum.

161 Paid leaves
0 Unpaid leaves
103 day work trips
Total: 264 days.rip.

Out of this I was out of UK from 17th January 2008 till 10th May 2008 on a business trip and was paid in UK. Which I had justified by an employee letter. During this period I also had a paid holiday for two weeks when i got married.

Thanks.

I have understood that absence from 17th January 2008 till 10th May 2008 were on account of business trip and paid holidays combined. At a streach it works out to 113 days (14+29+31+30+9)
It appears that your documentry evidance of letter from employer has not been found reliable by case worker as not supported by P60
Period from 17/1/2008 to 5/4/2008 pertains to tax year 2007-2008 and your salary as per tax record (P60) etc would be less than the salary of the tax year 2006-2007 so case worker may have infered that absence was not paid business trip.

If P60 supports you than refusal is arbitrary - Please confirm status of P60 for tax year 2006-7 and 2007-8.
Home Office ( case worker ) has no direct access with HMRC data base so they need time to confirm figures from HMRC- In case your figure support your version than they would not refuse

Hi Shahid,

All your points are absolutely valid and I had provided proofs of all of that.

i) My salary for the period 2007-2008 was significantly higher than 2006-2007 ( I had changed jobs in Aug 2007)
ii) This was supported by the P60's for both years.

The issue is caseworkers did not even mentioned once that they doubt this was valid business trip, they agreed with the letter from my employer. They just said it is in breach of the 90 days rule and thats why they are refusing it. Not even once they mentioned any doubt on the business trip or any issue relating to salary etc.

I still find it diffficult to believe why my case was refused.

Thanks

Additionally given my case was being reffered to the Refusal officer I had asked is their any other evidence/support I can provide to justify the 90 day breach and they mentione you have already provided all evdiecne that you could. They didn't mention even once single additional thing that I can send them now.

Is the application refused or just referred to more senior officer who has the authority to give discretion?

This seems to me that because the case is not straightforward, they need to escalate this to more senior officer for consideration of discretion. That's why the keep your passport and document.

3.1. Discretion in cases where continuous residence has been broken
In addition, time spent here in this capacity may exceptionally be aggregated, and continuity not insisted upon, in cases where:
...
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 United Kingdom. None of the absences abroad should be of more than 3 months, and they must not amount to more than 6 months in all.
NB: Decisions in such cases must be taken at HEO level or above.

There is a difference between an application being "refused" and decision on an application being "deferred".

Your application has not been refused, but deferred! Had it been refused, you would have been issued a formal letter by UKBA confirming refusal of settlement application.

Thanks for your views.

The caseworked said my application is refused by her manager so at their level it is refused. It is being sent to Senior case worker. They said he would decide is if I can apply again in 3 months time or will my timing be reset again from 2008 so I am elibible for ILR onlyin May 2013.

So from all these I gathered that my application is basically refused they just want to make a decision on my eligibility for ILR going forward.

Hi Somu, When is your visa expires, did you applied within 28 days of your visa expiry.

My tier 1 expires in May next year. I was eligible for ILR on 6th April 2011 this year.

The only thing you can do now is wait, I am very sure they will accept your ILR application.

Please keep us updated.

somu wrote:The caseworked said my application is refused by her manager so at their level it is refused. It is being sent to Senior case worker. They said he would decide is if I can apply again in 3 months time or will my timing be reset again from 2008 so I am elibible for ILR onlyin May 2013.

Unfortunately, I don't buy the argument offered by the caseworker.

If the reason for refusal (as claimed by UKBA) is "a single absence of more than 90 days", how can a "senior" caseworker make a ruling that this absence be disregarded when you apply again in future? If he does makes such a decision, then the question is - why can't he disregard it now? Also, if he makes such a decision, he will be making this refusal "unlawful"! Why? Because - one cannot apply a condition today to refuse an application and also make a decision that if you apply again later we will disregard the condition that we are refusing your current application on!

IMHO ....

I had excatly the same question but didn't pose that question that time thinking it might only make things worse for me. This whole thing is confusing.

I guess for me the only option is now to wait until I get my letter. But if anyone has any suggestions on what else I can do in this period would really appreciate.

I think this is a serious matter as a lot of us have spent more than 90days out at a stretch due to valid business reasons. If our applications are still being refused than there should be a clear ruling that Any breach of more than 90days will not be accepted. Why keep it at caseworkers discretion?

If it is approved for someone and rejected for someone else (provided both have given same evidence) than this is unlawful too? Rules should be same for everyone. And I am sure people here have got approvals in the past on valid bsuiness trips.

Hi Somu,
I believe i can add some info to your question.

firstly, when you have longer business absence, you should have applying by post. The recommendation i have received from all the solicitors i have consulted was the chances of getting complicated cases sorted is higher through post than same day service.

secondly, your chances of refusal is very high in case you have a valid visa as you will not have the right of appal. I have seen this over an over in all past instances that UKBA probably use this to the advantage.

I have sent my ILR last month by post and i have 2 business absences, one for 3 months & the other for 4 months at a stretch & in total around 450 business absence. However my business trips were for my own UK company which i was running for the last 30 months.

i have been paid from my business in the UK every month since 2007, tax & NI paid, company tax returns are submitted in the UK & all my business trips were for the development for my UK company. All business trip expenses are also accounted in company returns.

Importantly, my business trips were not to my home country, but to a third country where 66% of my business revenue coming from. I own a house in the UK, lived throughout here since 2004.

importantly when they make a decision on my ILR case, my visa would have expired as i applied 14 days before exp of my hsmp visa. so it would be interesting to see what they do to my case.

and finally, i still dont think your application is refused, unless you have any letter from UKBA confirming the same?. Same day service cannot make complicated decision and cases like mine & yours needs to be approved by senior caseworkers only.

hope this helps

Many thanks for your response emarketeruk.

I wish I knew this before and would have perhaps applied in post, although sending passport away for 6 months wud have been difficult as I do have to travel for work time to time.

Good luck with your application.

Hi somu,
please keep us informed of what happens with your application & all the best. Hope all goes well.

somu wrote:I had excatly the same question but didn't pose that question that time thinking it might only make things worse for me. This whole thing is confusing.

I guess for me the only option is now to wait until I get my letter. But if anyone has any suggestions on what else I can do in this period would really appreciate.

I think this is a serious matter as a lot of us have spent more than 90days out at a stretch due to valid business reasons. If our applications are still being refused than there should be a clear ruling that Any breach of more than 90days will not be accepted. Why keep it at caseworkers discretion?

If it is approved for someone and rejected for someone else (provided both have given same evidence) than this is unlawful too? Rules should be same for everyone. And I am sure people here have got approvals in the past on valid bsuiness trips.

Hi Somu,

Very sorry to hear your case, i just came to know from my solicitor in response to your case, If the absences are more than 90 days in single trip then it can be only possible to get discretion on exceptional or compassionate grounds (like urgent medical reasons) but not on business trips. But you may include business trips or annual leave if absences are more than 180 days in total of 5 year qualifying period.

Your ILR is not refused but upheld for more detailed consideration.
Therefore if you given a letter for additional info. Pls provide it asap. If you are short of your 5 years becos of this absence, therefore it is a good possibility you might get ur passport returned after may be another 3 months when your full 5 years residency will be met. This happened to my friend who was out of country for 8 months, only got his passport returned after that additional period was served.So don't worry. Wish u good luck.

Canbks11: I wish I was told what other evidence I could provide. They said I have already provided everything. They did mention that senior case worker might decide that I will be eligible again in 3 mths time to apply for ILR but I will have to apply again and pay the 2025 pounds fees again, which I think will be quiet unfair.

Somu,
Sorry to hear, however, I agree with most of the responses that this has not yet been refused and has been deferred. Hope all goes well.

I am also in a similar situation and am due to apply in Aug 2011, with a total of 180 days out within the 5 years.

Out of the 180, I have had 105 days at one strech due to a business related trip and as you mentioned, this is usually ok with a company letter, However, this does seem to depend on the caseworker handling the case on the day.

Let us know what you hear back from the home office.

Here's my take on this:

Your ILR is not refused. I cant find a link to latest ones but the previous copy of the UKBA guidelines say that absences higher than a certain number need to be approved by a senior caseworker at a certain (5 or 6 cant remember) or above. So your case has simply been passed to the senior caseworker.

Regarding applying by post and PEO, dont stress yourself. Way of applying makes absolutely no difference to outcome of an application. You would be in absolutely same situation if you applied by post, with only difference being that you wouldnt know what is happening with your application.

i know its easier said than done but realise that you cant do anything about it now and so stop stressing yourself.

Relevant extract from Immigration Directorate Instruction Chapter 6A regarding settlement of Tier 1 at page 46-47 reads as under:




“Annex B - Calculation of the qualifying period of continuous leave for settlement


2.1 Calculation of the five year period for settlement
When assessing if an applicant has met the criteria for 5 years continuous residence in the UK, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the UK), may be disregarded, provided the applicant has clearly continued to be based here.

2.2 ……………

2.3 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 (apart from those described in para 2.1 above) and authorised employment or business here 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 United Kingdom. Where continuous residence has been broken, periods may be aggregated or shortfalls disregarded only with the approval of an SEO or Grade 7.â€

somu wrote:Canbks11: I wish I was told what other evidence I could provide. They said I have already provided everything. They did mention that senior case worker might decide that I will be eligible again in 3 mths time to apply for ILR but I will have to apply again and pay the 2025 pounds fees again, which I think will be quiet unfair.

Hi Somu,

Any update on your status? Have you got ILR approval?