applied 8 Dec, rules changed 5th Dec re: business travel

I applied to ILR on the 8th, and the rule that "business travel doesn't count anymore for your 180 days out of the country" changed on the 5th. so completely unfair, and it impacted a lot of people apparently, i'm sure many of whom reasonably made travel plans for Christmas having been told by the advice line and several other sources that business travel didn't count. nobody told me when i called last week before my appointment that it had changed, and now my documents are with Croydon and I travel for Christmas on the 21st. they said it will take a maximum of 2 to 3 weeks. anybody else had this happen to them?

1. should i ask for my documents back as i don't stand a chance of this getting sorted before I go?

2. i've complained - what is the likelihood of getting my £1350 back?

3. are they just calling my business references to find out why i had to travel (128 business travel days, 243 total days out of the UK since 2006)?

4. I was told I would be able to go to Croydon to pick up my documents if I decide to, but they didn't sound so certain of that - that the docs would be there in Croydon still. anybody know if that's true?

5. Is there a phone number directly for Croydon?

anybody have any encouraging words of wisdom and hope? i'm getting tired of getting &£%$O%* by the UKBA.

Girly wrote:the rule that "business travel doesn't count anymore for your 180 days out of the country" changed on the 5th.

Rule? Policy change? Reference please!

All I have to go on is what the PEO caseworker who reviewed my application last week told me. I have a letter, just says my application is valid, but further enquiries are required. She said it was because the over 180 days exceptions previously accepted are no longer accepted andthat all such cases require senior manager review.

I personally think it's a scam, some sham excuse to force people into a position to withdraw AFTER paying £1350 and try again later when they can wait for the decision, i.e., after Christmas.

Girly wrote:All I have to go on is what the PEO caseworker who reviewed my application last week told me. I have a letter, just says my application is valid, but further enquiries are required. She said it was because the over 180 days exceptions previously accepted are no longer accepted andthat all such cases require senior manager review.

Read Annex B -> 2.3.

Such cases where discretion is involved have to be approved by a senior caseworker - has always been the case. And it is not guaranteed that a HEO will be free to review a case and also decide on it on the same day. So, applying in-person is usually not recommended. And if one chooses to do so, there is always a very high possibility that the application will be deferred - as has happened to you.

Nothing unusual!

And there is no change in rules - just for the benefit for anyone else who gets alarmed reading your claim!

It's not just a claim, this is word for word what the PEO at Croydon told me last week.

I've read all the annexes, rules, etc. and every time I sought advice, the feedback was that business travel does not count in the 180 day tally. I also made a point of asking whether mine was straightforward and whether I should apply in person, and I very clearly got the answer yes, it's no problem, just come with supporting letters and what not and you'll be fine. Complex cases are asking for something out of the ordinary or what have you, and that's not what I was doing, so just come with my letters and an explanation for my business travel and I would be fine.

Again, the PEO caseworker and her manager and a colleague of hers all stated very clearly to me that the business travel not counting toward the 180 day tally is no longer the case. There were others there and myself all in the same situation. Not making this up or randomly firing out claims, but hey, take it for whatever you think it's worth.

In fact, in the General Immigration forum, there is a link to an article just published yesterday from an article, confirming this.

So my point is maybe the Annex said whatever it said before, the custom was for business travel to be exempt and that is no longer the case.

see this thread:

http://www.immigrationboards.com/viewtopic.php?t=91859

Girly wrote:So my point is maybe the Annex said whatever it said before, the custom was for business travel to be exempt and that is no longer the case.

And what I am trying to tell you - again - is that it is not so. Such discretions have to be reviewed and approved by a senior caseworker ... this was true in the past as it is even today.

There is a difference between "is exempt" and "may be disregarded". It is only when people infer "may be disregarded" - which the policy guidance has always mentioned, for as long as I can remember - as "is exempt" that such confusion(s) arise.

The only change I see and know of is that UKBA is now trying to make sure that the caseworkers strictly follow the procedure associated with applying this discretion (which has remained unchanged) and that no lenient decisions are made in haste (e.g. - on the same day) without assessing the merits of the individual applications, and that UKBA will now be adhering to the stated policy more strictly than it has been done in the past .. to ensure uniformity and consistency in cases where such discretion is applied.

Girly wrote:see this thread:

http://www.immigrationboards.com/viewtopic.php?t=91859

And if you read the very topic carefully, you'll note that it isn't any different from what I have stated.

thanks - I read it carefully, and I'm simply saying even the caseworkers themselves said things have changed. I understand your point, it's just worth noting that strict interpretation is being applied - in case anyone is going thinking business travel will be waived.

the advice lines should be more careful about their wording then as well - they say very clearly business travel doesn't count towards your 180 days. the case worker said very clearly that was the case, even if I had gone on 1 Dec, but is no longer so.

quote from the text of that article:

We were informed by the UK Border Agency (UKBA) last Thursday that it is now strictly adhering to policy as far as indefinite leave to remain absences is concerned. 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.


i don't see how that's different from anything i said. the use of the word "now" indicates that it wasn't being strictly adhered to before - hence the advice I got from the UKBA advice line itself. On SEVERAL occassions. "Regardless" also indicates a change in position - i.e., regardless of whether we waived business travel before, we are no longer doing so.

Am I missing something? It's a bit unfair to go on the premise that the policy is to interpret the law one way and then not interpret it that way on the day.

Girly wrote:thanks - I read it carefully, and I'm simply saying even the caseworkers themselves said things have changed. I understand your point, it's just worth noting that strict interpretation is being applied - in case anyone is going thinking business travel will be waived.

the advice lines should be more careful about their wording then as well - they say very clearly business travel doesn't count towards your 180 days. the case worker said very clearly that was the case, even if I had gone on 1 Dec, but is no longer so.

An interesting question arises: can they actually refuse ILR based on the fact that person exceeded 180 days, even if the majority of time abroad was on business travel? Saying that business travel is no longer exempt (in which case ILR will not be granted as per rules) is different from saying that senior case workers must review the case. Which is it?

I think you are unneccesarily panicking just a little.

On one hand, the policy was always there - though not always adhered to as a great many people ( just read this board ) have obtained ILR while waiting in the office - the "change" in policy is to stick with the policy. This seems to be heading in the direction of alot more initial refusals ( something my soliciter told me, during my ILR application 60 days ago was the general direction he heard it was all going ).

On the other hand, untimately, a major precedent was set some time ago where a Nigerian gentleman obtained ILR after spending about 2 years out of the country. My soliciter tells me that decision is the most important of all decisions related to ILR. In other words, if you have not spend more than two years out of the country, you will quite likely eventually ( through appeal, judicial review, etc. ) obtain your ILR.

The only difference - and the policy may be leaning in that direction, is the amount of money the applicant is willing to / needs to pay to obtain their ILR.

Financial resourcefullness, therefore ( and it has quite strongly been suggested ), will be seen as ever more important in otaining settlement.

ukswus wrote:

Girly wrote:thanks - I read it carefully, and I'm simply saying even the caseworkers themselves said things have changed. I understand your point, it's just worth noting that strict interpretation is being applied - in case anyone is going thinking business travel will be waived.

the advice lines should be more careful about their wording then as well - they say very clearly business travel doesn't count towards your 180 days. the case worker said very clearly that was the case, even if I had gone on 1 Dec, but is no longer so.

An interesting question arises: can they actually refuse ILR based on the fact that person exceeded 180 days, even if the majority of time abroad was on business travel? Saying that business travel is no longer exempt (in which case ILR will not be granted as per rules) is different from saying that senior case workers must review the case. Which is it?

If ILR is not granted, for the reason that it is thought applicant is not in UK, then can they charge 40% income tax plus other deductions? On one hand, person is not said to be in UK for purpose of taxes & on the other hand, when it is time to give ILR, they say, you are not in UK?
Is this not being unfair, on part of UK System.

Girly wrote:I applied to ILR on the 8th, and the rule that "business travel doesn't count anymore for your 180 days out of the country" changed on the 5th. so completely unfair, and it impacted a lot of people apparently, i'm sure many of whom reasonably made travel plans for Christmas having been told by the advice line and several other sources that business travel didn't count. nobody told me when i called last week before my appointment that it had changed, and now my documents are with Croydon and I travel for Christmas on the 21st. they said it will take a maximum of 2 to 3 weeks. anybody else had this happen to them?

1. should i ask for my documents back as i don't stand a chance of this getting sorted before I go?

2. i've complained - what is the likelihood of getting my £1350 back?

3. are they just calling my business references to find out why i had to travel (128 business travel days, 243 total days out of the UK since 2006)?

4. I was told I would be able to go to Croydon to pick up my documents if I decide to, but they didn't sound so certain of that - that the docs would be there in Croydon still. anybody know if that's true?

5. Is there a phone number directly for Croydon?

anybody have any encouraging words of wisdom and hope? i'm getting tired of getting &£%$O%* by the UKBA.

Girly,

What was your category in which applied, WP / T1G? Any ansences more than 90 days at one stretch?

ukswus wrote:

Girly wrote:thanks - I read it carefully, and I'm simply saying even the caseworkers themselves said things have changed. I understand your point, it's just worth noting that strict interpretation is being applied - in case anyone is going thinking business travel will be waived.

the advice lines should be more careful about their wording then as well - they say very clearly business travel doesn't count towards your 180 days. the case worker said very clearly that was the case, even if I had gone on 1 Dec, but is no longer so.

An interesting question arises: can they actually refuse ILR based on the fact that person exceeded 180 days, even if the majority of time abroad was on business travel? Saying that business travel is no longer exempt (in which case ILR will not be granted as per rules) is different from saying that senior case workers must review the case. Which is it?

i don't think it's an either/or - not saying the will or won't refuse it, they might refuse it and fair enough if they do. it's that for example on 1 Dec 2011, business travel "didn't count" towards the 180 days, but on 8 Dec 2011, any travel counted towards the 180 days and now it will go for senior manager review. on 1 Dec, it was clear from every resource that while the law was X, the policy/interpretation was Y and you would be OK. on 8 Dec, not so - decided to be strict with the policy that was always there.

my biggest problem is the disconnect between the advice the UKBA gives and what happens on the day - at least as of last week. It took until 12 Dec when a law firm finally said hey, as of last Thursday, apparently they look at things this way now so watch out. PS - I went last Thursday lol

The other problem I have is that I have to travel on the 21st. Had I known the interpretation had changed last week, I would have waited until January. Nobody knew, not even the advice line, as very clearly stated of my PEO caseworker. Anyway, the travel is the reason for my panic. It really stinks to pay another £1350 as I'm pretty sure I'll have to, but I want to be sure I get my stuff back in time.

Bobby, yes, Tier 1 General, no single absence more than 90 days. All very prim and proper, just had to travel for work as my work is for a global company.

Girly wrote:

ukswus wrote:

Girly wrote:thanks - I read it carefully, and I'm simply saying even the caseworkers themselves said things have changed. I understand your point, it's just worth noting that strict interpretation is being applied - in case anyone is going thinking business travel will be waived.

the advice lines should be more careful about their wording then as well - they say very clearly business travel doesn't count towards your 180 days. the case worker said very clearly that was the case, even if I had gone on 1 Dec, but is no longer so.

An interesting question arises: can they actually refuse ILR based on the fact that person exceeded 180 days, even if the majority of time abroad was on business travel? Saying that business travel is no longer exempt (in which case ILR will not be granted as per rules) is different from saying that senior case workers must review the case. Which is it?

i don't think it's an either/or - not saying the will or won't refuse it, they might refuse it and fair enough if they do.

I don't see anything fair about it. There is nothing to suggest from page 45 of this document that trips consistent with annual paid leave and business trips should be counted towards 180 days:

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

Girly,

I think, UKBA can not be so inconsistent, as it affects a large no. of applicants, who have been planning based on UKBA published guidance & experience of successfull people.
I think, UKBA will grant ILR.

Bobbylondon wrote:Girly,

I think, UKBA can not be so inconsistent, as it affects a large no. of applicants, who have been planning based on UKBA published guidance & experience of successfull people.
I think, UKBA will grant ILR.

You are forgetting one important thing. All they care about is "net immigration" statistic. With Tier 1 holders, they already stopped inflow, now is the time to work on the outflow. They prefer a sneaky way of doing it, rather than a head-on collision by stopping settlement applications altogether.

If I hear enough refusal stories based on arbitrary interpretation of time spent outside of the UK, I will not enrich UKBA/immigration lawyers with my money any further. I just wish they were more straightforward about their plans, so that I do not waste my time and money in this country any longer.

There are four aspects relevant to this discussion/topic:

1. Immigration Rules- The relevant rules requires spending 5 years continuous law full period in UK for ILR and in rules neither there is any mention of absences nor of any discretion thereof. UKBA/Tribunal is bound by what is said in immigration rules. Tribunal can interpret law/rules but cannot disregard law/rules as that are domain of High Court. Neither there was any change in rules on 05 Dec 2011 nor is any change expected.
2. IDI/Modernised guidance- These are primarily guideline for the UKBA staff and do not carry force of law and these can be disregarded by tribunal and higher courts. There is no change in IDI and Modernised Guidance made on 5 Dec 2011. Rather on 12 Dec 2011 IDI Chapter 6A Settlement Tier 1 has been up dted and it has been made more clear that 180 days absences are other than paid leaves and job related absences. Current modrenised guidance on absences is also under six month review and may bring more clarity and consistency in UKBA thinking and practice.
3. UKBA Practice – It varies from PEO to PEO and person to person but should be consistent.
4. Internal instructions – written or oral and not made public usually against the interests of the applicant. For example to withhold refusal till 19 Dec so that appeal fee become payable. Change of 5 Dec 2011 told by case worker comes under this category.

With that I come back to point in issue. There is a government desire to curtail settlement and absences are the only issue where there is a scope in this regard for UKBA - without making any change in rules. It is evident from posts and otherwise that practice at Croydon PEO has changed and where there is absence of more than 3 month at a time the applicant is either told of refusal at the spot or discretion is not exercised by senior on the same day rather case is passed on to refusal/ verification team which has senior case workers as well. This saves time of case workers at PEO as they are invariably behind schedule of a given date. Same is the case where there are higher overall absences. There is remote chance that any verification would be made by refusal/verification team. Cases referred by PEO are to be decided in a sequence which would take time of 4-8 weeks. Therefore change is of procedure and not of policy of disregarding of job related absences.

However, there is no likelihood even in case of change of policy that any ILR refusal due to job/business related absences would withstand the test of appeal due to precedent of Upper Tribunal of disregarding over 900 days absences and UKBA practice of using discretion in hundreds of cases with more than 180 days absences even disregarding up to 800 days. IDI/Modernised Guidance are not law hence any change in them would not change the validity of legal precedent and past practice of UKBA.

ukswus wrote:

Bobbylondon wrote:Girly,

I think, UKBA can not be so inconsistent, as it affects a large no. of applicants, who have been planning based on UKBA published guidance & experience of successfull people.
I think, UKBA will grant ILR.

You are forgetting one important thing. All they care about is "net immigration" statistic. With Tier 1 holders, they already stopped inflow, now is the time to work on the outflow. They prefer a sneaky way of doing it, rather than a head-on collision by stopping settlement applications altogether.

If I hear enough refusal stories based on arbitrary interpretation of time spent outside of the UK, I will not enrich UKBA/immigration lawyers with my money any further. I just wish they were more straightforward about their plans, so that I do not waste my time and money in this country any longer.

Agreed Agreed - wish I could say the same, but I am married to a Brit and the only reason I didn't go for settlement as a spouse is that I would have had to wait a few more months and pay extra money for a new visa if I changed from Tier 1 to a family visa. Paying the price for it now though I guess.

thank you Jami for your input

ukswus wrote:If I hear enough refusal stories based on arbitrary interpretation of time spent outside of the UK, I will not enrich UKBA/immigration lawyers with my money any further. I just wish they were more straightforward about their plans, so that I do not waste my time and money in this country any longer.

It's so true, it has really become an industry in this country!

However, as in most legal matters, it makes sense to spend the money up front. My solicitor is running a genuine 100% success rate on ILR. If he didn't think I had a chance ( basically the deciding factor was < 90 days out of the country at a time - low enough to show center of life in the UK ), he wouldn't have bothered with my case. He has the relationship with the same caseworker in Croydon that he meets with twice per week and knows exactly what she will accept.

The Nigerian case is the precedent - UKBA can push you around all they want, you still will get ILR one way or another - the only question is how much you want to spend.

I asked myself why would I spend 1300+ on same day service and not spend an extra 600 on a solicitor that would not allow UKBA to push me around?

2000 pounds to dispense of all future visa hassle and stress. Worth every penny.

well the good news is that my application has been approved and I can go pick up my documents any time. Thank goodness!!!

I'm not sure even last week many lawyers would have known much about what was happening, unless they got a heads up. But yes, it seems you have to be really on the inside to have a chance of getting anywhere hassle free.


Thanks everyone for your comments and feedback, really appreciate all the help and support.

Girly wrote:well the good news is that my application has been approved and I can go pick up my documents any time. Thank goodness!!!

I'm not sure even last week many lawyers would have known much about what was happening, unless they got a heads up. But yes, it seems you have to be really on the inside to have a chance of getting anywhere hassle free.


Thanks everyone for your comments and feedback, really appreciate all the help and support.

GIRLY,

BIG CONGRATUATIONS ON THIS NEWS. NOW YOU NEED TO GIVE TREAT TO ALL, WHOM YOU PUT IN TENSION.

LOL oh it's still a very real problem, I have PMs saying same thing happened to them. My husband (a UK born citizen) and I complained, called, emailed, faxed (yes, really, even faxed), copied my MP, Theresa May... that's the only reason I think it came through to be honest. I hold out no hope generally when it comes to this sort of thing so I think keeping the pressure on helped a bit. I can't say what will happen for the others experiencing the same thing, but I suggest at least registering a complaint.

PS - I'll believe it when I see it, so tomorrow when I have a chance to go pick it up I'll confirm

Hi Girly,
Congratulations!!!

I am closely watching your posts from past couple of days and I don't know how is your relief but I got big relief on your good news!!
I am applying for my ILR next week (HSMP +Tier1) through PEO and I had about 171 business trips and 165 personal paid and self employed holidays; totalling 336 days.

Though I had very detailed supporting letter from my employer for my business trips, for peace of mind I am going through a Solicitor.

Enjoy your US trip; Happy Christmas & New Year:)

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Chrams