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ILR Absences - UKBA clarification about conflict

Only for queries regarding Indefinite Leave to Remain (ILR). Please use the EU Settlement Scheme forum for queries about settled status under Appendix EU

Moderators: Casa, push, JAJ, ca.funke, Amber, zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, meself2, geriatrix, John, ChetanOjha, archigabe

alok_singh
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Please help outside UK >90 days

Post by alok_singh » Fri Nov 04, 2011 12:20 am

Hi Jami,

With the modernised guideline only 180days re allowed to be outside UK

Does these 180 days include
a) Paid holiday outside UK. ( example , I was in India on Annual Leave will this use my 180 day allowance)
b) Short Business Trips from 1 days to most 2 weeks. I have 10-15 business trip ranging from 1 days to 2 weeks .
c) when calculating number of days oustide UK day of leaving and day of return are included or excluded.

Unfortunately I have I long business trip of 165 in a strech when I was paid in UK but I used my Annual leave during this time to go to India so eventually it ended up 165 with 117 business days 43 Annual Leave( 2 calender year).

I was paid in salary in UK , P60 covers this period, after completion of business I joined back same company and same position ,

Aggregating all my absence
a) paid leave ( 111)
b) business trip : ( 216)
c) unpaid leave ( 72)

total to 338 .

180 days of allowance is for which case (unpaid leave ) or it covers everything.

jami
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Location: Lahore

Post by jami » Fri Nov 04, 2011 7:58 am

180 days allowance is for paid/un-paid leaves. Your absences of 183 days would be ok being marginally above limit . Business trips even of more than 90 days duration at a time can be disregarded by case worker with the approval of his senior on proper evidence that trips were to maintain continuity of UK employment and during absence one continued to be based in UK.

alok_singh
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Joined: Fri Oct 28, 2011 2:50 pm

Post by alok_singh » Fri Nov 04, 2011 9:27 am

Many Thanks Jaimi,

But something is not right with HO when they say 180 days for paid/unpaid leaves. since in 5yr is we expect to go homre country once in a year for 30 days which menas 150 day of allowance are bare minimun to be used.

I think a normally everybody does more travel 180 days in 5 yrs. and rule is bit unfair.

And the another problem is when I came to the country I was aware of Annexue B whcih are around 400 days now after staying in country for 4 yr the rules are suddenly changed.

The change should be retrospective currently this means that noboday can we sure that he will be eligible for ILR evern with 180 days beacause this can eb further reduced to XX days.





jami wrote:180 days allowance is for paid/un-paid leaves. Your absences of 183 days would be ok being marginally above limit . Business trips even of more than 90 days duration at a time can be disregarded by case worker with the approval of his senior on proper evidence that trips were to maintain continuity of UK employment and during absence one continued to be based in UK.

rvs
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Post by rvs » Sat Nov 05, 2011 9:29 pm

Hello jami,

I think I have got a fair understanding of the absences criteria after reading your various responses but I would still like to put my case forward and seek your assistance.

I am applying for ILR next week in person under HSMP JR. I have total absences of more than 180 days but no single absence is over 90 days in the last five years. The break-down of my total absences in the last five years is as follows:

39 days (paid absence)
106 days (unpaid absence)
74 days (business)
--------------------------------
219 days (TOTAL)

Out of the above absences I am providing a letter from the company for whom I went on a business trip (single trip) of 74 days. Therefore, if I exclude the 74 days business trip from the calculation the total of paid+unpaid absence for holidays only comes to 145 days.

In the above scenario, do I need to worry? do I need to provide any other evidence/documents?

Thanks for your assistance in advance.

SunnyG
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Post by SunnyG » Mon Nov 07, 2011 6:33 pm

Hi, Jami,

Very useful info and many thanks for sharing!

Just want to get a confirmation from you for what you mentioned above about "180 days allowance is for paid/un-paid leaves.":

Does it mean that only private leaves will be counted into the 180 days? For example I have 179 paid leaves and 35 days for business trips then I do not need to worry about the total 214 days for more than the 180 days limit?

Many thanks again!

jami wrote:180 days allowance is for paid/un-paid leaves. Your absences of 183 days would be ok being marginally above limit . Business trips even of more than 90 days duration at a time can be disregarded by case worker with the approval of his senior on proper evidence that trips were to maintain continuity of UK employment and during absence one continued to be based in UK.

chosenaik
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Post by chosenaik » Mon Nov 07, 2011 7:36 pm

Paid leaves (in accordance with your employment contract) are not counted as part of the 180 days.

SunnyG
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Post by SunnyG » Mon Nov 07, 2011 7:54 pm

So if the leaves are only paid leaves and business leaves, there will be no limit of 180 days?
chosenaik wrote:Paid leaves (in accordance with your employment contract) are not counted as part of the 180 days.

jami
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Location: Lahore

Post by jami » Mon Nov 07, 2011 9:02 pm

Job related foreign visits and holidays abroad consistent with annual paid leaves should not be counted towards 180 days private absences. This is obvious in Immigration Directorate Instruction Chapter 6A regarding settlement of Tier 1 at page 46-47 i which 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. "

In above extract the expression in 2.3 "apart from those described in para 2.1 above" makes it explicit. A member on this board had posted a UKBA reply to him which made it further clear and extract reads as under:

"Any absences other than paid annual leave or necessary business trips should not exceed 3 months at a time or 6 months in total over the 5 year period."
http://www.immigrationboards.com/viewto ... mrit+haria

However Modernised Guidance is not explicit on this issue. On this board there is an instance where ILR of a teacher was refused due to absences. His paid leaves were much more than 180 days over period of 5 years as he was entitled to paid leaves of 12 weeks each year. This may be odd case but one should be cautious as generosity of UKBA fluctuates.

That is why it is my advice to count both types of leaves towards 180 days as most of employer are not giving more than 36 days paid leave in a year. However if paid leaves are more than 180 days then one should produce the employment contract and/or employer letter verifying their annual leave policy.

jami
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Location: Lahore

your query dated 5 Nov

Post by jami » Tue Nov 08, 2011 2:19 pm

For "rvs"

You are perfectly safe. No need to wory at all. Crossing of 180 days due to whatever reason is not end of ILR rather is start of discretion of case worker. With stated evidence of 74 days business related absences you would get through very easily.

Ajay singh
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Absences under (tier-1 ) general

Post by Ajay singh » Wed Nov 09, 2011 11:36 am

dear all
I have got a query if someone please help me on that would be grateful.

I got tier-1(general) in 2008. I went abroad in (2009 for 30 days), (2010-30 days) and (2011-15 days). I am planning to go abroad for 15 days in 2012. My ILR is due in 2013. My query is , is there going to be a problem with all these absences while applying for ILR . any suggestions will be appriciated .

Regards

Ajay

kpjoshiuk
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Continues Period Calculation with long gap of 8 months

Post by kpjoshiuk » Wed Nov 16, 2011 2:36 pm

Hi, Jami,

Really appreciate your help in my case

Entered UK under 2+3 Years HSMP in April 2007
First extension of 3 Years granted in September 2008 (applied earlier than due date due to some personal travel reasons)
Away from UK for continues 8 Months for personal reason without any evidence (October 08 to May 09)
Completing 5 years period of VISA in March 2012

Question.
If I apply for another extension will it be for 2 years or 3 years?
Can I apply for ILR in October 2012 after covering up gap period of 8 months or my clock will reset from June 2008 (e.i. when I entered UK after long gap)

Regards
Joshi

jami
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Location: Lahore

Post by jami » Wed Nov 16, 2011 2:49 pm

Second extension should be for 3 years but there are instances wherein extension of 2 years was given.

You can apply for ILR in Oct 2012 requesting use of discretion by aggregating your absence of 8 month if you can file some evidence of compasionate circumstances. Without evidence there is no chance. Even with evidence chances are 50:50

kpjoshiuk
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Post by kpjoshiuk » Thu Nov 24, 2011 3:48 pm

Dear Jami

Thank you very much for reply.

Regards

uma2011
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ILR - Absences

Post by uma2011 » Wed Dec 07, 2011 4:30 pm

Dear Jami,

Looked through all your post, very well explained. I am a newbie and totally not clear about the new rules for ILR. Thanks in advance for any reply.

My Case:

Looking to Apply ILR in Feb 2012.

Got my Tier 1 in June 1st 2009

Absences - Out of UK:

Total Days : 361

Reasons for major absence:

(22 August 2009 - 17 February 2010)
179 Days - Business Travel for Training (for my business) + was also on maternity at employment

(30 November 2010 - 28 January 2011)
59 Days - Business Travel

(19 August 2011 - 24 October 2011)
66 Days - Business Travel

Rest of the days were family holidays.

Please Clarify:
1. Will the above reasons stand strong for my case

2. What docs should I provide for the above to make the case strong, please advice

3. Could I be extending my visa status if I could compensate for the absences

Many Thanks
Uma

jami
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Location: Lahore

Post by jami » Thu Dec 08, 2011 11:42 am

Lately there are instances that even job related absences exceeding 90 days at a time were not disregarded what to say of private absences.

But I expect that by the time you would apply for ILR in Feb.2012 the UKBA would streamline the use of discretion by their staff and you would be OK on producing evidence of making UK your main home.

uma2011
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Re: ILR - Absences

Post by uma2011 » Thu Dec 08, 2011 12:31 pm

uma2011 wrote:Dear Jami,

Reasons for major absence:

(22 August 2009 - 17 February 2010)
179 Days - Business Travel for Training (for my business) + was also on maternity at employment

(30 November 2010 - 28 January 2011)
59 Days - Business Travel

(19 August 2011 - 24 October 2011)
66 Days - Business Travel

Rest of the days were family holidays.

Please Clarify:
1. Will the above reasons stand strong for my case

2. What docs should I provide for the above to make the case strong, please advice

3. Could I be extending my visa status if I could compensate for the absences

Many Thanks
Uma
Thanks Jami for the reply but cold you advice on what docs will be making the case strong for the above.

Also the 2 reasons below for single absence do any justice to my case
179 Days - Business Travel for Training (for my business) + was also on maternity at employment

Regards
Uma

jami
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Location: Lahore

Post by jami » Mon Dec 12, 2011 2:30 pm

uma

Wait for UKBA new version of guidance. It should be out before you apply for ILR in Feb.2012.

jami
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Location: Lahore

Post by jami » Mon Dec 12, 2011 6:08 pm

Today UKBA has issued new version of IDI Chapter 6A Settlement Tier 1.
I had pointed out a mistake by which "para 5.1" was mentioned instead of "para 2.1". UKBA has corrected the typing mistake which makes it clear that 180 days absences mentioned in para 2.1 are apart from job related absences and paid leaves.

UKBA email reply to me dated 12 Dec 2011 relevant to this topic is reproduced blew:
-------------------------------------------------------------------------------------


" Dear Shahid Jami,

Sorry for the delay in responding to your emails. They have reached the correct email in tray.

Thank you for pointing out the error in Chapter 6A of the IDI (page 44). We are taking steps to rectify this mistake and publish revised guidance.

We are currently in the process of reviewing the Modernising Guidance “calculating continuous period in the UK” to make the guidance clearer. The revisions include correcting any ambiguities such as the one you have referred to.

Also we would like to thank you for bringing to our attention the error in the Modernising Guidance “indefinite leave to remain in closed categories”. As you have stated that error has now been corrected.

Kind regards

Operations Policy."

rtinlondon
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Need Help With My Case

Post by rtinlondon » Fri Jan 13, 2012 12:37 am

Hi Jami,

I found this board and was hoping you can help me assess my case.

I initally came to the UK on a working holiday visa in 2005. After a year and a half I swtiched to an HSMP.

Dates

HSMP - March 19th 2007 - March 19th 2009
Tier 1 General - March 19th 2009 to March 19th 2011.

I plan to apply for my ILR 28 days before my visa expires - which is in February. I have been out of the country quite a bit for work and personal travel.

My total number of days away is 263
Holiday - 166 and Work trips - 97.
My longest time away was a holiday I took for 34 Days but this was paid leave.

I did take into account the date i left and came back to the UK so have excluded that from the list above.

Grateful if you could advice.

Also what is the best office/location to apply through and whats the best way to get an appointment?

Appreciate your help with this.

tier_2_applicant
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Post by tier_2_applicant » Thu Jan 19, 2012 1:19 pm

Hello,

I got my Work Permit stamped on 7th Dec 2007 and flew to UK on 5th Jan 2008 (I have since switched to Tier 1). I understand that I can apply for ILR 28 days before I complete 5 years in UK. I have some questions:

1. I read somewhere that if there is a gap between Visa date and travel date, the former may be considered provided the gap is no more than 3 months. Is this understanding right?

2. (If the answer to question 1 is No) I arrived in UK on 5th Jan 2008 (Saturday) and started my job on 7th Jan 2008 (Monday). Which of these dates should I use?

3. I was away for a month in December 2010 (Bank Holidays + Annual Leave + 9 days unpaid leave (unpaid paternity leave)). Will the 9 days of unpaid leave be a problem?

4. I have to travel on business approx. once a month. I travel out on day 1 morning and return on day 2 evening. Will this be treated as a 1 day absence or 0 day absence? Is there a policy document that I can quote?

Many thanks for all your help.

cars2fly
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Post by cars2fly » Thu Jan 19, 2012 4:53 pm

Hi Jami,

With regards to absences calculation and in light of latest amendments about total 180 days absences calculation (6b), can you kindly look at my situation and advise if I stand any chance to apply in the current year?

http://www.immigrationboards.com/viewtopic.php?t=93109

lynz
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Post by lynz » Mon Jan 30, 2012 7:47 pm

Hello, I need some advice as I am planning to apply for 10 year long residence ILR. At the moment, I have 568 days absences outside of UK (of which 7 days are for business trips and 58 days were taken as annual paid leave). I am not sure if I will be able to get a letter from my employer to state that the 58 days, taken over the span of last 4 years was paid annual leave. Although, by common sense, there is normally 25-30 days paid annual leave per year for any permanent job, which I have for the past 4 years of working in the UK. Can you advise please if it's worth submitting my application (I plan to submit soon in mid Feb) based on the assumption if I do not have the employer's letter to support the number of paid annual leave taken? I will have no problems though with getting a letter from my employer to support my business trips. Any advice is greatly appreciated!

lynz
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Post by lynz » Mon Jan 30, 2012 7:54 pm

Sorry, I forgot to add another question...can I exclude weekends and public holidays from the limit when counting absences e.g. I left UK for a holiday on the Monday and returned to UK on the Monday the week after? Hence the total absence days is 4 days (minus Sat and Sunday and also because we don't count the date of entry and date left)? Am I right to assume this? Or it should be 6 days of absences?

ITGraduate
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Location: West Midlands

Days counted

Post by ITGraduate » Wed Feb 01, 2012 7:07 pm

Hi There,

I do know the date you travel ( the day you left UK and the day you entered UK is not counted )

However I'm not sure if weekends and public holidays are excluded. Please wait for seniors to comment

Thanks




[quote="lynz"]Sorry, I forgot to add another question...can I exclude weekends and public holidays from the limit when counting absences e.g. I left UK for a holiday on the Monday and returned to UK on the Monday the week after? Hence the total absence days is 4 days (minus Sat and Sunday and also because we don't count the date of entry and date left)? Am I right to assume this? Or it should be 6 days of absences?[/quote]

lynz
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Post by lynz » Sat Feb 04, 2012 1:00 pm

Thanks for your reply,staffordjaffar. I guess I will count in the weekends and public holidays since there is not really a written guidance which allows this exclusion.

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