UKBA can refuse ILR, even if people travel on business?

This means that once a migrant worker is in a position to move forward with an application for indefinite leave to remain (i.e. settlement), and if the applicant has spent more than 180 days outside the UK during the five-year period preceding the filing of the application, regardless of whether this was for business or pleasure, the application will be referred to a senior caseworker for consideration on a discretionary basis and it could fall for refusal if the absences exceed 180 days.

http://www.kingsleynapley.co.uk/news/ne ... ember_2011

ukswus wrote:This means that once a migrant worker is in a position to move forward with an application for indefinite leave to remain (i.e. settlement), and if the applicant has spent more than 180 days outside the UK during the five-year period preceding the filing of the application, regardless of whether this was for business or pleasure, the application will be referred to a senior caseworker for consideration on a discretionary basis and it could fall for refusal if the absences exceed 180 days.

http://www.kingsleynapley.co.uk/news/ne ... ember_2011

I have experienced that solicitors tend to scare applicants to the extent, applicants lose hope. This is also another link from another solicitor company. On this forum, we have seen, upto 800 days absences have been OK & people got ILR.

But, if this is true, I wonder what's next? Perhaps they will start counting the days of departures and arrivals into the days of absences?

Bobbylondon,

It appears to be very creditable.



ukswus,

Appeal fee.

jami wrote:Bobbylondon,

It appears to be very creditable.



ukswus,

Appeal fee.

Jami,

What exactly do you mean by this? You are obviously very knowledgeable, so it would be great to know your opinion.

Technically speaking, they have given you a limit of 180 days, and they can play around this...Once it comes to discreation, then case worker is at liberty to decide what he feels better. You cannot oppose the decision, unless you want to go for paying the appeal fees, as said by Jami.

zahid.ali.anwar wrote:Technically speaking, they have given you a limit of 180 days, and they can play around this...Once it comes to discreation, then case worker is at liberty to decide what he feels better. You cannot oppose the decision, unless you want to go for paying the appeal fees, as said by Jami.

So, technically speaking, being away on work related travel and on paid holidays (for say, 40 days a year) may be considered equivalent to having a criminal record by UKBA caseworker (depending on his mood in a particular day?)

And what about instructions, which clearly say:

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

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

True, the guidance is less clear on this, but aren't instructions more important in this case?

Also, when I hear the word "discretion", what does it mean exactly? Whether the case worker likes me, or whether he's in a bad mood? Or perhaps I shouldn't bother at all if so much is based on arbitrary decision making, and leave the country now?

You are right uksws.

I also object to the word "may" and "discreation" in the rules and law.

I have mentioned this in my other posts and have written to UKBA as well. However, no one is sure that why this MAY or DESCRITION be implemented case to case. We have seen people getting ILR with more than 500 days of absense. And people getting their ILR rejected with just 188 days of absense...

The law should be straight and must not have this may be or discretion in it...

Apply by post, not in person. PEO staff don't have the authority to make a decision when an application may need further checks for absence.

Casa wrote:Apply by post, not in person. PEO staff don't have the authority to make a decision when an application may need further checks for absence.

But these two words will remain there in the rules. and can be exercised by the case worker or a senior case worker.

I believe people who find themselves in the above position, should appeal if their only leave is Section 3C or initiate a JR claim if they have existing leave.

There is a discretion, and if the decision maker refuses to exercise it, or show why he or she is not willing to exercise it in an applicant situation, explanition should be provided.

Casa wrote:Apply by post, not in person. PEO staff don't have the authority to make a decision when an application may need further checks for absence.

this is 100% correct. I went last week, 8th Dec, to apply for ILR in person, and the PEO caseworker told me that as of Monday 5th Dec they can no longer decide on that day whether going over 180 days is OK if most of it was for business travel. They recognize it's totally unfair, but said that's just what we have to do now, just doing our jobs.

I went over, 243 days total, 128 of which were business travel. Nobody was told about this, not even on the advice line and not anywhere else other than the farce that is "may" and "discretion". As I said, they no longer have discretion. My application is sitting in Croydon now, awaiting a decision, and I have to leave for the US on the 21st. Absolutely zero sympathy for that, and the caseworkers were as distraught over the unfairness of it due to lack of notice and warning.

I find it incredibly suspicious actually - change the policy just before a bunch of people are probably travelling somewhere for Christmas and would have otherwise waited until the new year to apply had we known we would be shafted and had £1350 stolen from us.

but be warned, this is not scaremongering or anything else - it is fact. ANY travel over 180 days is up for review by a senior manager, whether you go in person or not. If you have any travel plans, I suggest you re-arrange for the new year as you will not get your ILR that day.

Girly wrote:

Casa wrote:Apply by post, not in person. PEO staff don't have the authority to make a decision when an application may need further checks for absence.

this is 100% correct. I went last week, 8th Dec, to apply for ILR in person, and the PEO caseworker told me that as of Monday 5th Dec they can no longer decide on that day whether going over 180 days is OK if most of it was for business travel. They recognize it's totally unfair, but said that's just what we have to do now, just doing our jobs.

I went over, 243 days total, 128 of which were business travel. Nobody was told about this, not even on the advice line and not anywhere else other than the farce that is "may" and "discretion". As I said, they no longer have discretion. My application is sitting in Croydon now, awaiting a decision, and I have to leave for the US on the 21st. Absolutely zero sympathy for that, and the caseworkers were as distraught over the unfairness of it due to lack of notice and warning.

I find it incredibly suspicious actually - change the policy just before a bunch of people are probably travelling somewhere for Christmas and would have otherwise waited until the new year to apply had we known we would be shafted and had £1350 stolen from us.

but be warned, this is not scaremongering or anything else - it is fact. ANY travel over 180 days is up for review by a senior manager, whether you go in person or not. If you have any travel plans, I suggest you re-arrange for the new year as you will not get your ILR that day.

Typical governmental behavior: not saying openly that the rules for obtaining ILR have been changed (and rather dramatically), but doing it in a sneaky way, likely to avoid court challenges. They disgust me.

Casa wrote:Apply by post, not in person. PEO staff don't have the authority to make a decision when an application may need further checks for absence.

On this note: what if I have, say, 130 days of absences not counting the days of arrivals and departures, and 200 days with them? What's the policy on that?

Solicitor Mr Nicolas Rollason mentioned in the article has confirmed to me that it is based on their discussion with senior workers of PEO.

Girly wrote:

Casa wrote:Apply by post, not in person. PEO staff don't have the authority to make a decision when an application may need further checks for absence.

this is 100% correct. I went last week, 8th Dec, to apply for ILR in person, and the PEO caseworker told me that as of Monday 5th Dec they can no longer decide on that day whether going over 180 days is OK if most of it was for business travel. They recognize it's totally unfair, but said that's just what we have to do now, just doing our jobs.

I went over, 243 days total, 128 of which were business travel. Nobody was told about this, not even on the advice line and not anywhere else other than the farce that is "may" and "discretion". As I said, they no longer have discretion. My application is sitting in Croydon now, awaiting a decision, and I have to leave for the US on the 21st. Absolutely zero sympathy for that, and the caseworkers were as distraught over the unfairness of it due to lack of notice and warning.

I find it incredibly suspicious actually - change the policy just before a bunch of people are probably travelling somewhere for Christmas and would have otherwise waited until the new year to apply had we known we would be shafted and had £1350 stolen from us.

but be warned, this is not scaremongering or anything else - it is fact. ANY travel over 180 days is up for review by a senior manager, whether you go in person or not. If you have any travel plans, I suggest you re-arrange for the new year as you will not get your ILR that day.

Hello, the same happened to my boyfriend today. Have you received your visa yet? Does anyone know how long it is taking? He had to leave his passport at the HO in Croydon but they don't say how long it will take and we have a trip booked.

Thanks a lot!

Just wanted to follow up on our situation. My boyfriend had exactly the same problem yesterday and went back to the home office today to pick up his passport as we have holidays booked.

We have filled a complaint with UKBA, our local MPs and the Home Secretary, Theresa May.

The issue here is that when applying for this service, it is clear that a decision might not be made on the day, however in this case there was absolutely no chance for a decision to be made on the day and my boyfriend should have been told about that before applying. It is a new rule from the Home Office that says that ALL cases that involve more than 180 days outside the country for whatever reason need to be reviewed by a senior officer and cannot be processed on the same day. So my boyfriend was allowed to pay for a service that he wasn't entitled to in the first place and this should be been made clear when the staff checks the documentation before directing people to the payment counter.

We have filled a complaint so that he can apply again in January without having to pay the fee considering that this time they didn't spend more than 10 minutes reviewing the case - so he basically paid £1,350 only to get an immigration officer to spend 10 minutes going through the documents and say that the application would need to be reviewed by a senior officer and there is no estimate as to when a decision would be made.


So the reason I am posting this here is: if someone is having the same problem, please make sure you file a complaint as I believe the more complaints they receive about the same issue, the more chances we all have to get a better outcome.

People, can you please tell me, how do UKBA know how long i've spent outside the UK in the past 5 years? They don't stamp my passport when i leave the country, also not always do they ask how long i was away for. I can't tell from my passport either - as i need a visa to every single place in the world, i keep running out of pages and need a new passport every year. My Embassy has to withdraw my old passport by law so i can't keep them.

So how do I and UKBA know how many days i've spent outside the UK in the last 5 years???????

Ariadna wrote:People, can you please tell me, how do UKBA know how long i've spent outside the UK in the past 5 years? They don't stamp my passport when i leave the country, also not always do they ask how long i was away for. I can't tell from my passport either - as i need a visa to every single place in the world, i keep running out of pages and need a new passport every year. My Embassy has to withdraw my old passport by law so i can't keep them.

So how do I and UKBA know how many days i've spent outside the UK in the last 5 years???????

They know. Does it matter how?

Search for travel itinerary /flights tickets emails. Check your diary or make a SAR.

Jambo wrote:
They know. Does it matter how?

I really question whether they actually do know your past movements, on the basis of their current systems. I submitted a SAR asking this specific information, and all they could come up with was my very first entry card on the basis of my then visa. I had extensive travel after that and they found no record of it.

Is there any other authority that records it other than UKBA? If there's no evidence of stamps in your passport I really wonder how they could disprove the dates you give in an application (whether you want to give knowingly false info is another matter).

jager wrote:I submitted a SAR asking this specific information, and all they could come up with was my very first entry card on the basis of my then visa. I had extensive travel after that and they found no record of it.

Did they actually tell you they could not find any other record? or you assumed that because they did not provide it to you?

When making a SAR, the HO data unit tends just to search in the visa application systems and hence they will provide you with copies of your applications and your first landing card. They might also provide copies of pages in your passport which could be useful to track your travel.

The fact that you did not get the data doesn't mean they don't have it.

jager wrote:

Jambo wrote:
They know. Does it matter how?

I really question whether they actually do know your past movements, on the basis of their current systems. I submitted a SAR asking this specific information, and all they could come up with was my very first entry card on the basis of my then visa. I had extensive travel after that and they found no record of it.

Is there any other authority that records it other than UKBA? If there's no evidence of stamps in your passport I really wonder how they could disprove the dates you give in an application (whether you want to give knowingly false info is another matter).

I think common case workers do not know more than you have in your SAR(if you asked them to send all information)..As your SAR is that what contains in their system about you.They are getting information about your absences from your passport. Sometimes they also have a few landing cards there.Also i think if you have lost your passport or something is suspicious they could send request to e-border or somewhere else to check your absence .