Maternity, ILR and citizenship

[MarinaE888]

Dear
Im on tier 2 general visa since June 2017 and now on maternity leave outside of the UK
Pls find my questions below :
- i left the UK on Nov 26th and planning to come back on April 6th . Would that disrupt my ILR application next year or is it ok as less then 180 days in a row?
- im planning to apply for ILR in May 2022 , ideally priority service and as im married to uk citizen can i then apply automatically once i get ilr to british citizenship?
- Is receiving the SMP pay impact my application? Is it considered public fund?
- is taking the full mat leave (approx 1 year) impacting my application?
- for citizenship the aim is to respect the 450 days right? Do we count though days in and out of UK ? (Meaning if i travel from friday to sunday shall i count them as 3 days or 1 day?)
- and finally for the 90days allowed outside the uk furing last year before citizenship application- when are they counted from ? Since i will apply in May 2022 for ilr and then citizenship after thay , should the 90days be between May 2021 and May 2022?

Thanks a lot

[secret.simon]

as im married to uk citizen can i then apply automatically once i get ilr to british citizenship?

- for citizenship the aim is to respect the 450 days right? Do we count though days in and out of UK ? (Meaning if i travel from friday to sunday shall i count them as 3 days or 1 day?)

If you are married to a British citizen, then yes, you can apply for British citizenship immediately after getting ILR.

In that case, the absence limit you need to respect is not "450 days in 5 years", but "270 days in three years". You also need to have been physically present in the UK at the start of the three year period immediately preceding the date of application. So, if you apply in May 2022, you need to have been physically in the UK in May 2019.

And only whole days absences from the UK count. The day of departure and of arrival are counted as if you were in the UK.

- and finally for the 90days allowed outside the uk furing last year before citizenship application- when are they counted from ? Since i will apply in May 2022 for ilr and then citizenship after thay , should the 90days be between May 2021 and May 2022?

Correct. The 90 day absence limit is for the year immediately preceding the date of application.

[MarinaE888]

Thanks . You mention though 270 days in last 3 years. However im on tier 2 general visa , not spouse visa. Doesnt that follow the 450 rule?
Thanks

[CULLINAN]

Thanks . You mention though 270 days in last 3 years. However im on tier 2 general visa , not spouse visa. Doesnt that follow the 450 rule?
Thanks

British Citizenship application falls under the Nationality laws not immigration rules. It does not matter which path you followed till your ILR. Once you have ILR, you either naturalise in your own write i.e. Section 6(1) BNA 1981 or naturalise as per Section 6(2) BNA 1981 if you are married to a British Citizen. Both sections have different requirements as stated by secret.simon already.

Also see:
https://assets.publishing.service.gov.u ... ber_20.pdf

[MarinaE888]

Very clear , thanks a lot

Any idea on the unanswered questions pls:

- i left the UK on Nov 26th and planning to come back on April 6th . Would that disrupt my ILR application next year or is it ok as less then 180 days in a row?
- Is receiving the SMP pay impact my application? Is it considered public fund?
- is taking the full mat leave (approx 1 year) impacting my application?

Br

[CULLINAN]

Page 45:
https://assets.publishing.service.gov.u ... .0-ext.pdf

245AAA.General requirements for indefinite leave to remain
https://www.gov.uk/guidance/immigration ... sed-system

(i) the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that:

Also:
Work-related benefits such as Statutory Maternity Pay, Maternity Allowance, Statutory Paternity Pay and Statutory Sick Pay are not affected by your immigration status and are not classed as public funds.

[MarinaE888]

Thank you
Si as long as i respect the 180day rule in any year, staying 5month in a row outside the uk wont impact my BRP and further applications , right?

[MarinaE888]

Hi
I went through all the docs
I couldnt find a statement where maternity absences outside the UK are allowable absences
Is it stated somewhere?
Thanks

[CR001]

Hi
I went through all the docs
I couldnt find a statement where maternity absences outside the UK are allowable absences
Is it stated somewhere?
Thanks

There is no such allowance. All absence is treated as absence.

[MarinaE888]

Thanks but my question is coming from the below

Absences linked to reason for being in the UK: evidential requirements
For all other categories, absences must be consistent with, or connected to, the applicant’s sponsored or permitted employment or the permitted economic activity being carried out in the UK - for example, business trips or short secondment
This also includes any paid annual leave which must be assessed on a case by case basis and should be in line with UK annual leave entitlement for settled workers. For example, the statutory leave entitlement is 5.6 weeks’ paid holiday each year, which for workers who work a 5 day week is 28 days’ paid leave. However, many employers provide 25 or 30 days’ paid leave a year, plus bank holidays.
Short visits outside the UK on weekends or other non-working days are consistent with the basis of stay and do not break the continuity of leave. You must count such absences towards the 180 day limit.
Evidence in the form of a letter from the employer which sets out the reasons for the absences, including annual leave, must be provided. Where short visits outside the UK, on weekends or other non-working days have taken place, evidence from the employer should be provided to confirm the applicant’s normal working pattern and show the absences occurred during a non-working period.
However, time spent away from the UK for extended periods, particularly if the business no longer exists, should not be allowed.

[MarinaE888]

Therefore arent there reason where its not allowed to be outside the UK even if we follow the 180 day rule?

[MarinaE888]

Dear
couple of final questions pls :

1) 'However, time spent away from the UK for extended period, particularly if the business no longer exists, should not be allowed'
What does extended period stand for here ? Maternity isnt part of this right?

2) If i want to go back to my role in March instead of April , am i allowed to start work 1 month from outside of UK before i go back in April? or would that break my continuity and disrupt my ILR and citizenship future applications?

Thanks
Marina

[vinny]

Thanks but my question is coming from the below

Absences linked to reason for being in the UK: evidential requirements
For all other categories, absences must be consistent with, or connected to, the applicant’s sponsored or permitted employment or the permitted economic activity being carried out in the UK - for example, business trips or short secondment
This also includes any paid annual leave which must be assessed on a case by case basis and should be in line with UK annual leave entitlement for settled workers. For example, the statutory leave entitlement is 5.6 weeks’ paid holiday each year, which for workers who work a 5 day week is 28 days’ paid leave. However, many employers provide 25 or 30 days’ paid leave a year, plus bank holidays.
Short visits outside the UK on weekends or other non-working days are consistent with the basis of stay and do not break the continuity of leave. You must count such absences towards the 180 day limit.
Evidence in the form of a letter from the employer which sets out the reasons for the absences, including annual leave, must be provided. Where short visits outside the UK, on weekends or other non-working days have taken place, evidence from the employer should be provided to confirm the applicant’s normal working pattern and show the absences occurred during a non-working period.
However, time spent away from the UK for extended periods, particularly if the business no longer exists, should not be allowed.

The Guidance still includes your quote. It reflects

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) Migrant or a highly skilled migrant, any absences from the UK during the relevant qualifying period must have been for a purpose that is consistent with the applicant’s basis of stay here, including paid annual leave, or for serious or compelling reasons.

This applies to all requirements for indefinite leave to remain in Part 6A and Appendix A.

However, Skilled workers are no longer subject to Part 6A nor Appendix A anymore. They are subject to the new Appendix Continuous Residence. It appears to contain no requirement similar to 245AAA(c). A more restrictive Guidance may be non-mandatory.

[MarinaE888]

Thank you

If i want to go back to my role in March instead of April , am i allowed to start work 1 month from outside of UK before i go back in April from my maternity leave ? or would that break my continuity and disrupt my ILR and citizenship future applications?

[MarinaE888]

Thank you

If i want to go back to my role in March instead of April , am i allowed to start work 1 month from outside of UK before i go back in April from my maternity leave ? or would that break my continuity and disrupt my ILR and citizenship future applications?

Also looking at the ilr changes , are absences letters from employer still required?

Is my employer supposed to report my maternity outside of the UK for 130 days?

Br

[vinny]

Skilled worker caseworker Guidance

An applicant may currently be absent from work for any of the following reasons:

• statutory maternity leave, paternity leave or parental leave
• statutory adoption leave
• sick leave
• assisting with a national or international humanitarian or environmental crisis
  (providing their sponsor agreed to the absence for that purpose)
• taking part in legally organised industrial action

Statutory Maternity leave appears to be a statutory requirement for employers to grant employees. It’s probably your choice to make on where you spend your statutory maternity leave. If 245AAA(c) or similar was required, then my guess is that taking maternity leave outside the UK would be consistent with, or connected to, the applicant’s sponsored or permitted employment or the permitted economic activity being carried out in the UK.

I think Statutory maternity leave prevents your employers from making you work during the period. However, I think you may choose to work

You do not have to take 52 weeks but you must take 2 weeks’ leave after your baby is born (or 4 weeks if you work in a factory).

However, they may still count working outside the UK as an absence.

See also some caselaws on Tier 1 (General) applicants who spent more than 180 days outside the UK.

[MarinaE888]

Thanks a lot!! im following closely my absence to keep the 180day rule respected !