Actually, a very bad news for Tier 1 general holders

To hsmpilr
No, unless you made an application before 3 April 2006.

No, unless someone applied for their HSMP visa before 3 April 2006 (this would mean that they are in UK for almost 7 years by now!!)

nevertheless, we are not HSMP. We are Tier 1(general).
Again my question to UKBA is what is the INTENT behind the rule changes ? Who was kept in mind when the rules were formulated. For a rule, I presume, there will be set of people who will be benefited and a set of people who will still slip in the cracks. Most rules are to avoid cracks. What is that scenario in mind that UKBA wanted to fix by adding this restriction ?

[iD] wrote:

nadnet wrote:What's interesting that in Immigration Rules they write 'highly skilled migrants', but in the guidance 'Highly Skilled Migrants'. Why?

I fail to see the difference between highly skilled migrants', but in the guidance 'Highly Skilled Migrants'.
Unless you were pointing at capital letters...

Highly Skilled Migrants - HSMP, highly skilled migrants - Tier1(General), I suppose.

nadnet wrote:

[iD] wrote:

nadnet wrote:What's interesting that in Immigration Rules they write 'highly skilled migrants', but in the guidance 'Highly Skilled Migrants'. Why?

I fail to see the difference between highly skilled migrants', but in the guidance 'Highly Skilled Migrants'.
Unless you were pointing at capital letters...

Highly Skilled Migrants - HSMP, highly skilled migrants - Tier1(General), I suppose.

Not a strong point to argue. The problem is the plight of people attending the PEO appt. These cannot be used as arguments. They will be under the mercy of the CW which is not fair. The law must be at the top and must be CLEAR AND UNAMBIGUOUS.

Guys, this new rule is simply unacceptable to be honest.
Let's hire a lawyer and fight back like HSMP folks did.

I don't know what the exact procedure will be to do this, but we should really challenge these new rules.
Senior members please suggest.

moodymani wrote:Guys, this new rule is simply unacceptable to be honest.
Let's hire a lawyer and fight back like HSMP folks did.

I don't know what the exact procedure will be to do this, but we should really challenge these new rules.
Senior members please suggest.

I second it. We need to talk to UKBA via solicitor which will benefit a lot of people.

All, we really need to take Legal action through a solicitor soon.
Please post your consent at the earliest and we can then ask for some advice/guidance from Senior members for the best way to do this.

hsmpilr wrote:

zafarkth wrote:I had appoinment on next Monday . Hope I will share success story

Thank you. Wishing you all the best on behalf of all of us in the forum. Also while you are sharing could you share with us please on what is the status of your leaves ? do you have any unpaid leaves and did you get any letter from the employer.

Hsmpilr

My category is 2 year HSMP + 3 year Tier 1

Initial application date: 07 may 2008

I have
10 holydays in 2008 out of uk
26 in 2009 out of uk
24 in 2010 out of uk
83 in 2011 out of uk
36 in 2012 out of uk

All are paid holydays and got letter from employer that these periods are paid holydays.

zafarkth wrote:

hsmpilr wrote:

zafarkth wrote:I had appoinment on next Monday . Hope I will share success story

Thank you. Wishing you all the best on behalf of all of us in the forum. Also while you are sharing could you share with us please on what is the status of your leaves ? do you have any unpaid leaves and did you get any letter from the employer.

Hsmpilr

My category is 2 year HSMP + 3 year Tier 1

Initial application date: 07 may 2008

I have
10 holydays in 2008 out of uk
26 in 2009 out of uk
24 in 2010 out of uk
83 in 2011 out of uk
36 in 2012 out of uk

All are paid holydays and got letter from employer that these periods are paid holydays.

I believe there will be no issues at all. Yours is a straightforward case.

hsmpilr wrote:

zafarkth wrote:

hsmpilr wrote:

zafarkth wrote:I had appoinment on next Monday . Hope I will share success story

Thank you. Wishing you all the best on behalf of all of us in the forum. Also while you are sharing could you share with us please on what is the status of your leaves ? do you have any unpaid leaves and did you get any letter from the employer.

Hsmpilr

My category is 2 year HSMP + 3 year Tier 1

Initial application date: 07 may 2008

I have
10 holydays in 2008 out of uk
26 in 2009 out of uk
24 in 2010 out of uk
83 in 2011 out of uk
36 in 2012 out of uk

All are paid holydays and got letter from employer that these periods are paid holydays.

I believe there will be no issues at all. Yours is a straightforward case.

Except that 83 days of paid leaves in a single year (2011) may raise some issues. Hope not.

I hope you get your ILR mate, but just curious how will you justify 83 days out of UK in 2011....is it business trip as it probably can't be annual leave for that long duration

moodymani wrote:

zafarkth wrote:
Hsmpilr

My category is 2 year HSMP + 3 year Tier 1

Initial application date: 07 may 2008

I have
10 holydays in 2008 out of uk
26 in 2009 out of uk
24 in 2010 out of uk
83 in 2011 out of uk
36 in 2012 out of uk

All are paid holydays and got letter from employer that these periods are paid holydays.

I hope you get your ILR mate, but just curious how will you justify 83 days out of UK in 2011....is it business trip as it probably can't be annual leave for that long duration

Yeh that is my concern. Actually I was ill and went back for treatment . But my employer paid me for this perid.

Anyways , I had some medical documents to prove this . But will not submit unless asked by CW

yes
83 days of paid holiday is too much (above normal). This may trigger suspecion unless it is reasoned as a business visit which will not be challenged.

zafarkth wrote:

moodymani wrote:

zafarkth wrote:
Hsmpilr

My category is 2 year HSMP + 3 year Tier 1

Initial application date: 07 may 2008

I have
10 holydays in 2008 out of uk
26 in 2009 out of uk
24 in 2010 out of uk
83 in 2011 out of uk
36 in 2012 out of uk

All are paid holydays and got letter from employer that these periods are paid holydays.

I hope you get your ILR mate, but just curious how will you justify 83 days out of UK in 2011....is it business trip as it probably can't be annual leave for that long duration

Yeh that is my concern. Actually I was ill and went back for treatment . But my employer paid me for this perid.

Anyways , I had some medical documents to prove this . But will not submit unless asked by CW

or instead of this..u can just say u went backhome on paid leaves and there u fell sick....and so you could not return on time..this looks very natural and easy. To back the sickness you already have the MC. So happy days for you. Your case is straight forward

Not that this is relevant to the topic but an interesting one to note.

http://www.bbc.co.uk/news/uk-13714028

hsmpilr wrote:Not that this is relevant to the topic but an interesting one to note.

http://www.bbc.co.uk/news/uk-13714028

@hsmpilr

Why are you gettin paranoid..may be you can research on the topic and then post it here...people are already confused and on top of that you are posting a link from 2011 not even researching.

http://www.immigrationboards.com/viewtopic.php?t=79834

check this and you can see the changes have already been made and are for the people entering UK after april 2011

syed_ILR wrote:

hsmpilr wrote:Not that this is relevant to the topic but an interesting one to note.

http://www.bbc.co.uk/news/uk-13714028

@hsmpilr

Why are you gettin paranoid..may be you can research on the topic and then post it here...people are already confused and on top of that you are posting a link from 2011 not even researching.

http://www.immigrationboards.com/viewtopic.php?t=79834

check this and you can see the changes have already been made and are for the people entering UK after april 2011

apologies. But yes... The recent changes do not have any meaning at all. My thinking is Tier1 general were the only elite group who were freely marching towards the ILR route and the recent changes looks like it deliberately introduced to confuse _only_ the Tier 1 general permeanently employed subcategory. All others are not affected. It is just us.

A different light in thought... I am not a solicitor nor my interpretations have any value but too much reading a sentence makes a sentence meaningless. So after a break this is what stuck my brain.

1) para 245AAA says

(a) "continuous period of 5 years lawfully in the UK" means, subject to paragraphs 245CD, 245GF and 245HF, residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where :

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain;

(ii) the applicant has existing limited leave to enter or remain upon their departure and return except that where that leave expired no more than 28 days prior to a further application for entry clearance, that period and any period pending the determination of an application made within that 28 day period shall be disregarded; and

(iii) the applicant has any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period disregarded.

and there is no 'and' in the end of the sentence in (a). "Contra proferentem" IS APPLICABLE HERE. So all these proofs and evidences are applicable (I think) _only_ if we exceed the 180 days. Within the 180 days means there is nothing to be even declared or evidenced. Also continuous period is NOT BROKEN
This is also fair and not retrospective in applying the rules becuase when we came in, we were allowed only 90 days outside and in some periods it was 180 days in 5 years. The rules are relaxed now to 180 days per year. So under the para (a) above, NOT giving evidences must not be a ground for refusal under the break of 5 year continuous residence.
2) The information

Except for periods where the applicant had ... highly skilled migrant,...

(j) The applicant must provide the specified documents in paragraph 245CD-SD to evidence the reason for the absences set out in paragraph 245AAA.

(c) Except for periods where the applicant had leave as a Tier 1(Investor) Migrant, a Tier 1(Entrepreneur) Migrant, a Tier 1(Exceptional Talent...

Para (c) is a harmless para which does not really talk about unpaid leaves or any such complications. The INTENT is that we must be employed and not be outside UK without actively being here either searching a job or already in a job (still contradictory for Tier1 but many of us do not get squeezed into this issue I presume). This is particularly applicable for people who in a 2 year period stay outside UK for more than 6 months and still think they are eligible for ILR since they can cookup some document in favour of their stay outside



GURUs ... please comment

So why must we evidence the absences if we are under 180 days ?
What (I think ) again when the UKBA is replying it is assuming that we are off the 180 day limit and then when the evidences/reasons become mandatory the problems and interpretation of law starts. What UKBA did not put clearly in the rules is when the evidences need to be shown. Otherwise break in continuous period is *NOT* broken as-long-as it is within 180 days.
Again

https://www.whatdotheyknow.com/request/ ... ing-377576

Does not talk about 180 days at all in the discussion. So when UKBA meant break in residence is when the 180 days is exceeded and also there are unpaid leaves.

I am going to straight disregard all the answers from the UKBA since they do not seem to be coming from a experienced fully law-aware person. They always are answered with a tinge of confusing people rather than clearing out doubts.

If this is true, PEO appointments for people less than 180 days/year must not even ask for the reasons letter.
Guys we need a lot of feedback from the PEO ILR. Its been 4 days and there must have been atleast 20 or more applications in PEO.

hsmpil: this is interesting. However, note that they define "continuous period of 5 years lawfully in the UK" as residence for an unbroken period subject to paragraph 245CD. So while I think your interpretation of an unbroken leave is right, they still may refuse on the basis that continuous period requirement was not fulfilled. I am not a solicitor, of course, so may be wrong.

Just had my appointment at Croyden PEO yesteday. Success!

As they accept old forms for 21 days after 6 April - I used the old form. I did not submit any evidence regarding my absences other than a copy of my passport and the table of absences. Case worker did not ask for any additional evidence.

I did have a letter from my current employer and one previous employers with me but I did not submit this. Reason why I did not give them these letters is because 2 of my previous employers refused to send me letters as they no longer had records of my annual leave dates.

FYI - I spoke with one of the immigration while waiting and they said that the new rule bascially means that - the only reason anyone should be leaving the country while on a tier 1 :
a) that they are working and on paid annual leave / weekends
b) they are required to travel for their work
c) The are travelling for compassionate/compelling reasons.

hsmpilr wrote:A different light in thought... I am not a solicitor nor my interpretations have any value but too much reading a sentence makes a sentence meaningless. So after a break this is what stuck my brain.

1) para 245AAA says

(a) "continuous period of 5 years lawfully in the UK" means, subject to paragraphs 245CD, 245GF and 245HF, residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where :

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain;

I think there is a possibility and arguments look great as well, you are right about more PEOs experiences and also Gurus can shed some light. My concern is this line from the para 245AAA section (a) and point (i) which states:
(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month period s preceding the date of the application for leave to remain ;

There is a or which not only makes 180 but it can be anything in between 1 to 180 days, isn't it?

It is just my understanding so far and I am not a solicitor, like ukswus and hsmpilr I am just sharing my thoughts. I think we can read or re-read as many times as we want but it will make sense in coming days

Congratulations rattop and thanks for sharing your experience. I think this is what I am thinking it will not be clear until a month or two as they will publish new forms and I am not sure forms are already there or not, if they are there then it will quite handy we can see any changes in the form as well in regards to absences.

Again congrats to you

rattop wrote:Just had my appointment at Croyden PEO yesteday. Success!

As they accept old forms for 21 days after 6 April - I used the old form. I did not submit any evidence regarding my absences other than a copy of my passport and the table of absences. Case worker did not ask for any additional evidence.

I did have a letter from my current employer and one previous employers with me but I did not submit this. Reason why I did not give them these letters is because 2 of my previous employers refused to send me letters as they no longer had records of my annual leave dates.

FYI - I spoke with one of the immigration while waiting and they said that the new rule bascially means that - the only reason anyone should be leaving the country while on a tier 1 :
a) that they are working and on paid annual leave / weekends
b) they are required to travel for their work
c) The are travelling for compassionate/compelling reasons.

There you go first success story without any issue, CW don't think too much like us. They only follow a paerwork with tick boxes, if they have everything written clearly.

The new forms are already online - they have been since Friday 5 April. It is after I read the new form (below) that I decided on use the old form! In the the new form - it specifically states:

6.2 "Evidence of all work-related absences (including paid annual leave) is required from those applying under [b]Tier 1 (General);[/b]Tier 2 (Intra-Company Transfer);Tier 2 (General); Tier 2 (Minister of religion);
Tier 2 (Sportsperson); Tier 5 International Agreement, and permitted employment categories - except Highly Skilled Migrants."

6.3 What What evidence has been provided to support the reasons for all absences from the UK?

- Letter(s) from employer(s) detailing reasons for work-related absences including periods of paid annual leave from the UK?
- Letter from applicant detailing reasons for absence due to compelling or compassionate reasons
- Original official documents: (medical/birth/death certificate(s))
- Letter from travel companies to evidence disruption to travel
- Other