Advice needed for ILR .. Tier 2 with absence over 300 days

Dear friends,

Can one of the experts advise on the below query please?

Background: Entered UK in Jan 2008 on Work permit and got converted to Tier 2 (ICT) on Jan 2010.

There was a break of 240 days continuously [23-Nov-2009 to 30-Jul-2010] which split across 2 years will not be more than 180 days as below.

Year 5: 01-March-2013 to 28-Feb-2012 : 27 days
Year 4: 01-March-2012 to 28-Feb-2011 : 16 days
Year 3: 01-March-2011 to 28-Feb-2010 :152 days
Year 2: 01-March-2010 to 28-Feb-2009 :101 days
Year 1: 01-March-2009 to 28-Feb-2008 : 23 days
-------------------------------------------------
: 318 days
All other absence were on Paid annual leave and was short.

Please advise
1. if I get a letter from the employer stating that the long absence was official will i get through ILR smoothly? What should the letter state?
2. What other docs should have handy apart from the below?
1] Life in UK test
2] Bank statements
3] Pay slips
4] Passport _ Biometric Card
5] Last 2 years P60

Any help will be deeply appreciated!

Regards,
Mano.

Did you remain sponsored and on the payroll of the UK entity or was your salary paid by the overseas entity?

Read this link to see why it makes a difference.

http://www.immigrationboards.com/viewtopic.php?t=123864

Thanks lucapooka! apologies for not mentioning that.

Yes I was sponsored. I never had a break in visa and was with the same employer for last 5 yrs.all my visa extensions were done from within UK. But was not on UK payroll during the absence.

Any luck of getting through the ilr now? if no please advise,

1. Will ukba verify if i was on UK payroll 3 yrs back considering we will be giving the bank statement for last 12 months and last 2 p60s.
2. Is there any other route u recommend me to explore?
3. If nothing turns up positive shud I try after completing 5 yrs from 31 jul 2010? Is that possible?

Thanks in advance.

brother my case is same as yours(i.e. Tier 2 ICt with more than 4-5 months unpaid absence) and I have been scanning this forum for months now, have come across any successful case til date..pm me your details,lets talk..

ilrseekerlondon wrote:brother my case is same as yours(i.e. Tier 2 ICt with more than 4-5 months unpaid absence)

So not the same! The OP has made no mention of unpaid absence. Please feel free to start your own thread if you wish to discuss your circumstances.

Mano82 wrote:Yes I was sponsored. I never had a break in visa and was with the same employer for last 5 yrs.all my visa extensions were done from within UK. But was not on UK payroll during the absence.

The key problem I see is your break in residence of 270 days, where you did not maintain strong ties in the UK (i.e. were not resident or paid in the UK).

As you are applying for ILR under an employer sponsored immigration category there is a high likelihood that a case worker will want to see your employment history (P60's) to make sure that you met the terms of both your WP & T2 visa.

Mano82 wrote:Thanks lucapooka! apologies for not mentioning that.

Yes I was sponsored. I never had a break in visa and was with the same employer for last 5 yrs.all my visa extensions were done from within UK. But was not on UK payroll during the absence.

Any luck of getting through the ilr now? if no please advise,

1. Will ukba verify if i was on UK payroll 3 yrs back considering we will be giving the bank statement for last 12 months and last 2 p60s.
2. Is there any other route u recommend me to explore?
3. If nothing turns up positive shud I try after completing 5 yrs from 31 jul 2010? Is that possible?

Thanks in advance.

Dear Lookapoka,
I will definitely start a separate thread for my case as suggested by you. Apologies but I think Mano did mention about him not being paid in UK during the period.
Regards,
ILRlondonseeker.

Yes, you are right and I'm wrong! Stay here!. If he was not on the payroll for more than a month, he has a problem! And I guess that also means you have a problem.

Guys,

I posted a query to UKBA as below on continuity and below is the response?

Dear team,

Can I request you to clarify the below query?
As per the new ILR rules for Tier 2(ICT) that have come into effect from 13 Dec, 2012 the statement regarding 180 days absence is quite ambiguous.

1. Regarding 180 days absence in a year:
The following link says "During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months." http://www.ukba.homeoffice.gov.uk/visas ... ettlement/

And the guidance note says ""No more than 180 whole days absence are allowed in any of the five, two, three or four consecutive 12 month periods, preceding the date of the application for indefinite leave to remain (ILR)"

Taking the above into picture, if a immigrant is out of the country for 8 months from November 2009 to July 2010 and he/she applies for ILR (assuming that he has completed five years legally) in Feb 2013 - according to the Guidance notes Is it correct in inferring that he/she will still be eligible? (from what we read). The split across years backdated from the application date (say 1st Mar 2013) is as below.

Year 5: 01-March-2013 to 28-Feb-2012 : 27 days
Year 4: 01-March-2012 to 28-Feb-2011 : 16 days
Year 3: 01-March-2011 to 28-Feb-2010 :152 days
Year 2: 01-March-2010 to 28-Feb-2009 :101 days
Year 1: 01-March-2009 to 28-Feb-2008 : 23 days

Could you please clarify if its 180 days in any consecutive 12 months period in the last 5 years or in any of the five, two, three or four consecutive 12 month periods (according to the guidance notes)?

2. Also if this absence breaks continuity due to any reason will the employer letter stating that this absence is official helps for the ILR process?


Response from them:

Dear Sir/Madam,

I am sorry that you think the guidance on calculating the continuous period for ILR is ambiguous. The reference to the ‘..five, two, three or four consecutive 12 month periods relates to the fact that some migrant categories can qualify for IRL in shorter period than 5 years, e.g. Tier 1 (Investor) migrants can qualify after 2 years, depending upon the size of their investment.

Regardless of whether a migrant’s continuous period is 2 or 5 years, they can be outside of the UK for reasons relating to the purpose form them being in the UK for up to 180 days in any of the specified 12 month periods without breaking continuity.

In the example you have provided, the absences in each of the specified 12 months do not exceed 180, therefore continuity would not be broken.

I trust this answers your question.

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Lucapooka/cs95tdg,

Thanks for your help and valuable advise so far. Can you help me to understand how UKBA verifies if you are on UK payroll during the absence . I wont be able to provide the P60s beyond 2010 as my employer was paying the tax for me till April 2010 and I dint have the NI number as well.

As requested before, please advise
1. Is there any route which u recommend rather than waiting for 2 more years :'( ?
2. Any idea on how will they veify if you were on UK payroll or not?

Thanks for your patience so far!

Rgds,
Mano

ilrseeker..PM'ed u buddy!

Mano82 wrote:I wont be able to provide the P60s beyond 2010 as my employer was paying the tax for me till April 2010 and I dint have the NI number as well.

I don't understand what you mean by this statement, you will need to elaborate.

If you were employed in the UK, you would have applied for an NI number after arriving in the UK. Until such a time your NI number was issued, you would have been put on a emergency tax code. This would then subsequently be adjusted after your NI number was available. Note that as an employee, your taxes should have been deducted and paid via the PAYE system by your employer and reflected in your payslips. The P60 you receive at the end of the financial year would summarise all taxable earnings and taxes paid.

The UKBA may use either your P60's or your HMRC Employment History to verify your earnings during the ILR residence period. They will clearly be able to see if your earnings history has a gap.

See also: http://www.immigrationboards.com/viewtopic.php?t=125544

for tier 2 there is the requirement to maintain UK ties.

cs95tdg,

Thanks for your reply!
As i said though I came here in 2008 I was not paying tax directly and my employer use to pay that till Apr 2011. In Apr 2011 we were asked to get the NI number to pay tax by ourselves. However as you said I can request HMRC for the employment history.So that means even if i dont give the P60 for the absence period there is high chance my application gets rejected if they verify the employment history.Is that correct?

Since I had my visa valid all through the 5 years continuously doesn't this mean that my sponsorship was not broken. Does this give any advantage?

uksettlement,
Thnx brother!Any advise to deal with this other than waiting till 2015?

Regards,
Mano

Mano82 wrote:As i said though I came here in 2008 I was not paying tax directly and my employer use to pay that till Apr 2011.

What you mean here is still not clear. I understand you arrived in the UK as a work permit holder in 2008. If you did not pay tax directly as you put it, what evidence do you have to prove that you were economically active and met the terms of your WP during that time? You mentioned previously that you weren't working in the UK for 270 days and not paid here. So I presume you did not pay tax here. If so, why do you say your employer was paying this? Something just doesn't add up here.

If the UKBA request your employment history and by looking at what you provide them they are not satisfied that you have met the terms of your WP, then yes there would be a very high likelihood that your application would be refused

Simply having a visa that covers the ILR residence period is not sufficient. Employer sponsorship is just one aspect, whether or not you met the terms of the employer sponsored WP is another. You need to read the immigration rules that are applicable to your immigration category to understand what is required.

Thanks for sharing Mano

Hi Mano82,

Thanks for sharing the the UKBA response. This is really usefully. Could you please share the email address used to contact UKBA?

Also how long did it take for UKBA to respond?

Regards,
Ranga

Dear cs95tdg,

I got where you are coming from. Basically more than the gap of less than 180 days its about the ties with UK which has broken the continuity. Before concluding that there is no other way now to proceed than waiting till 2015. Can I clarify some more things please?

1. Considering that i have returned after gap on 31-Jul-2010 on Tier ICT, will I be eligible by Jul 2015? Please note that I will be on Tier 2 ICT for the whole 5 years then (no work permit in picture) and my visa is valid till Dec 2015.
2. Will it be a problem if i change my company (Sponsor) now within UK itself without breaking the continuity?
3. Should I avoid switching such that new visa have to be applied from India?

Regards,
Mano

Some more information from UKBA to guys with my situation on absence without UK payroll. This is no different form what this forum gurus says!

Dear Mano,

Absences from the UK must be related to the applicant’s reason for being in the UK, that is, related to their UK employment. As you were not employed in the UK for these 8 months, paying UK taxes etc., then I am afraid this absence therefore breaks continuity, as your employment during that time was not benefiting the UK, but your employer. Your continuous period would start again when you returned to work in the UK.

Since the rules change to state the number of absences in each 12 month period of the applicant’s specified continuous period that will not break continuity, we have also introduced the requirement that all absences from the UK must be evidenced. This means that your employer will have to provide details of when and why you were required to travel outside of the UK on business, and also details of when you took your annual leave.

I trust this clarifies the situation.

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cs95tdg et al,

Could you please help on the last query?

Regards,
Mano.

If the question is whether you can change sponsors then yes, you can. Please read the ILR FAQ sticky thread and UKBA guidance to understand the specifics around the immigration rules that would apply to you:

ILR FAQ Sticky: http://www.immigrationboards.com/viewtopic.php?t=79378

UKBA Continuous Residence Guidance: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

See Page 12-14 to understand what constitutes a break in continuous residence.

Immigration Rules: http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/

Thank you buddy!I ve already gone through these except the sticky link. I will refer n get back if need be. Thnx again.