ILR application with 1.5 years away during COVID

[badou]

Dear friends,

May I ask a question about the ILR application? There are two complications in my application:

1. During COVID time, I was away from March 2020 to August 2021, for about 1.5 years. I work at a University and was abroad and teach online, with a permission from my employer.
More details: I initially planned to come back to the UK on October 2020 (I keep flight tickets), but my doctor warned me due to my past heart surgery history and wrote me a letter suggesting me to avoid international travelling (I keep the letter). So I stayed until 2021 summer after I got 2 vaccines and then come back to the UK.

2. My current Tier 2 visa will expire on Sep 14, and I may be able to get a CoS before that - My employer said two days ago that they will get me a CoS and then said that it may take a few weeks...

Initially my employer HR suggested me to apply for ILR and said that they will provide me a letter explaining my situation and hopefully be helpful. But HR said that they will need to confirm my absence days and include that information in the letter.
However, it has been a few weeks and they have not done that...
My initial plan was to apply for ILR when I get their letter, and if it get rejected, I apply for Tier 2 visa extension.

However, now the timing seems to be quite tight...
So my current plan is this:
- I just go ahead with my ILR application, with priority service, without the letter from my employer, and see if I get good luck. If not, I get rejection due to too long time abroad, but I will get my passport back before Sep 14. I lose the priority service fee 500 GBP but I get my application fee £2,885 back, so I don't lose too much. Perhaps the risk is that I will not get back my passport on time and I will not be able to apply for Tier 2 visa?
- If I cannot get ILR, I will apply for Tier 2 visa extension before Sep 14, if I get CoS from my employer.
- If I don't get CoS from my employer on time, I have two choices: One is to apply a bit later and explain to UKVI that my application is later because of CoS, and hope that they will accept it; The other is to be a dependency of my wife, who has her own Tier 2 visa - but then I will not be able to apply for ILR until I become dependency of my wife for 5 years, i.e., 2029...

May I ask if you have any suggestions?
- Is my current plan - apply for ILR first and if rejected, then Tier 2 - something safe?
- Is the risk of not getting my passport back on time or not getting my ILR application fee back high?
- If the risk is indeed high, then perhaps I should just forget about ILR and apply for tier 2, but the cost is that I will pay tier 2 application and heath surcharge for 2 years, which is another 4000 GBP...

Thanks very much and look forward to your suggestions.
If you have further questions or suggestions, please let me know.

[CR001]

- I just go ahead with my ILR application, with priority service, without the letter from my employer, and see if I get good luck. If not, I get rejection due to too long time abroad, but I will get my passport back before Sep 14. I lose the priority service fee 500 GBP but I get my application fee £2,885 back, so I don't lose too much. Perhaps the risk is that I will not get back my passport on time and I will not be able to apply for Tier 2 visa?

Employer letter re absence is mandatory for ILR. It has nothing to do with 'get good luck'. Also, if your application is refused (different to rejection), you lose the fee paid. Also, no physical passport is submitted to UKVI, it is all digital. You exceed the absence limits by a substantial amount. If you are able to do your job while not being in the UK, then UKVI could question why you need a Skilled Worker visa in the first place.

- If I cannot get ILR, I will apply for Tier 2 visa extension before Sep 14, if I get CoS from my employer.

Fine.

- If I don't get CoS from my employer on time, I have two choices: One is to apply a bit later and explain to UKVI that my application is later because of CoS, and hope that they will accept it; The other is to be a dependency of my wife, who has her own Tier 2 visa - but then I will not be able to apply for ILR until I become dependency of my wife for 5 years, i.e., 2029...

You cannot apply after your current visa expires, regardless of 'explaining to UKVI'. People need to plan better. UKVI follows the rules.

May I ask if you have any suggestions?

- Is my current plan - apply for ILR first and if rejected, then Tier 2 - something safe?

You risk refusal.

- Is the risk of not getting my passport back on time or not getting my ILR application fee back high?

You do NOT submit original passport!!!

- If the risk is indeed high, then perhaps I should just forget about ILR and apply for tier 2, but the cost is that I will pay tier 2 application and heath surcharge for 2 years, which is another 4000 GBP...

A decision only you can make and you need to make it before your visa expires in just over two weeks.

[badou]

Thanks so much for the prompt and really helpful reply, and the clarification to my misunderstandings!

"Employer letter re absence is mandatory for ILR"
"if your application is refused (different to rejection), you lose the fee paid."
"no physical passport is submitted to UKVI, it is all digital."

Those clarifications are really important for me.
Since employer letter re absence is mandatory, and no refund with the refused case, then I will just not try to apply for ILR, and will focus on Tier 2 visa application, either an extension with the CoS from my employer if I get it on time, or if unlucky, a dependent visa.

I indeed asked my employer HR for CoS already two months ago, and they suggest me to apply for ILR and they said that they will get the absence letter for me, but it is already more than one month and I still don't have the absence letter...

That is why I start to worry..
Now with your helpful suggestions, I will just focus on getting Tier 2 visa, which I think clearly is the best.
Of course, I still have a risk that my employer HR cannot get me the CoS on time... Things are taking very long for them.. I have seen in this forum that some people get CoS in a few days, but my employer HR says that it can take a few weeks.

Thanks again and wish you a great day!

[zimba]

See: All you need to know about the sponsor letter for Skilled Worker route

If an employee can work mostly remotely, then that might suggest there was no good justification for them to be brought to the UK. They can work overseas for the firm without the need to be here. Your sponsor has duties they need to comply with. Working with little or no requirement to attend work premises or a client site may suggest it is not a role that needs to have an overseas worker in the UK and the sponsor may be questioned on this. If a sponsor does not report such working arrangements via SMS, their licence might be at risk.

Note that the official 'Sponsor duties and compliance' document says the following:

You must, however, tell us, via your SMS account, if any sponsored worker
is, or will be, working entirely remotely, with little or no requirement to attend
your premises or a client site (a contractual home worker). In these cases,
we reserve the right to ask you to explain why you need to sponsor the
worker to come to the UK if (for example) they could work remotely from
their home country.

https://assets.publishing.service.gov.u ... 4_v1.0.pdf

[vinny]

See also Is Employer required to update Home Office for Skilled Worker Employee Absence?

[lolo2]

Of course, I still have a risk that my employer HR cannot get me the CoS on time... Things are taking very long for them.. I have seen in this forum that some people get CoS in a few days, but my employer HR says that it can take a few weeks.

Universities usually have a good tracking system for their sponsored staff, you're right on the assignment of a CoS should not take that long - if they have allocation available. Leaving this process to the last minute is not usual in a HEI, for all the risks that it implies.

I think you need to talk to your manager/HR asap on this matter. You shouldn't be waiting until the last few days to apply for ILR or a visa extension.

[badou]

Thanks for the further suggestions and discussions!

"If an employee can work mostly remotely, then that might suggest there was no good justification for them to be brought to the UK."
Yes, but my employer - a university - only allowed us to work remotely and teach remotely during the COVID time - 2020.3 to 2021 summer, like almost all other universities, and afterwards we teach face to face, and it is necessary to work from the UK.
So I think this should be fine..

"Universities usually have a good tracking system for their sponsored staff, you're right on the assignment of a CoS should not take that long - if they have allocation available...
I think you need to talk to your manager/HR asap on this matter. You shouldn't be waiting until the last few days to apply for ILR or a visa extension."
Thank you! I talked to the HR about this since July, and they said that they will get me a letter of absence to support my ILR, after confirming with my line manager, but they still have not get the letter for me, after my multiple emails to HR, HoD and department manager..
Then last week I started asking HR perhaps we should get a CoS as well in case we don't get the letter for ILR on time and/or my ILR application get refused and I can still apply for Tier 2 extension, and HR still said, you can apply for ILR, and if it get refused, come back to us and we will give suggestions, without making attempt to get CoS and trying to say that CoS may take a few weeks...
That is when I realized that talking to them does not really help - if I really wait for my ILR and then get back to them afterwards, I am screwed, together with my wife and kids.
I should try to understand what is the best for me. So I pushed HR for getting CoS and trying to get information and better understanding from this website - really helpful!
Thanks very much everyone!

HR said that they started CoS process for me, finally..

[zimba]

Good. You should NOT listen to any immigration advice from your HR as they will be the first people to suspend you for not having a valid visa if your ILR is refused. Aiming for extension is the correct approach

[badou]

Dear friends,

May I ask the following question about the risk of applying for ILR:
If I apply for ILR but waited long for a decision, and unfortunately the decision is no and by then my current skilled visa already expires, will I be able to apply for a skilled visa or dependent visa again from the UK?

Will waiting for ILR decision be a valid reason for applying for other visa after the current visa expires?
If it is a valid reason, will it be a valid reason for 14 days, or even as long as 6 months?

I am considering applying for ILR with priority service, but it may as well be the case that they require additional documents and then I will need to wait for 6 months...

Thanks very much!

[zimba]

I suggest against applying for ILR as you do not qualify and they are unlikely to grant ILR. The best bet is to extend

[vinny]

If applying for ILR, then you also should provide as much evidence as possible of being unable to travel back.

[badou]

If applying for ILR, then you also should provide as much evidence as possible of being unable to travel back.

Thank you! I have my doctor's letter suggesting me not to travel internationally, and my university's evaluation of my health as increased risk, emails arranging teaching remotely, and my younger son born in 2021.1 outside UK...
What do you think the probability of successfully getting ILR while being abroad from 2020.3-2021.8?
20%? 50%? 70%?

Is there any negative impact on my future visa applications if my ILR get rejected?
If there is no negative impact, and the chance of getting ILR is larger than 50%, then I will consider applying for ILR.

Of course, if the rejection record has some negative impact, or there is a risk that even if I pay for priority service, my case will take still 6 months, then I will probably not apply for ILR.

[zimba]

You must prove with lots of evidence you couldn't travel back to the UK for 1.5 years. I personally think such a claim is absurd and very unlikely to be accepted. A refusal for ILR has no effect but you could waste your time and money

[badou]

You must prove with lots of evidence you couldn't travel back to the UK for 1.5 years. I personally think such a claim is absurd and very unlikely to be accepted. A refusal for ILR has no effect but you could waste your time and money

Yes. Indeed I could come back to the UK in 2020 summer - I bought a flight ticket, but then a middle aged colleague of mine unfortunately died, and I asked my doctor and he gave health suggestion to avoid travel due to my past surgery history. I don't have evidence such as cancelled flights. It is more because I stayed until I am fully vaccinated in 2021 summer and then feel safe to travel and come back to the UK..

Indeed there is a risk of waiting 4000 GBP for trying ILR, but the downside of extending my skilled worker visa for 2 years is that I may not get CoS for extending my skilled worker visa on time and it will also cost 4000 GBP, given the health surcharge...
My employer - a university - was fast in getting me a CoS in 2019, but this time somehow it is taking longer - my last response from the HR is that they prepared my documents, and is now asking their legal advisor, once the legal advisor agrees, they will issue CoS ASAP.. I don't know whether they can do it before Sep 14..

If not, I am considering applying as my wife's dependent (she has her own skilled worker visa), and then once I get CoS, I vary my application to skilled worker visa. I still want to continue my skilled worker visa because switching to dependent means my previous years do not count.

Would this plan work?
Thanks!

[badou]

I understand that during the time waiting for the ILR application decision, the previous visa (skilled worker in my case) get extended automatically due to section 3C.
And if my ILR get rejected and I appeal, section 3C again automatically extend my previous visa and I can legally stay and wait for the result.

What I am not 100% sure is whether 3C also allows me to legally apply for a new visa, i.e.
- Can I send a skilled worker visa if my ILR get rejected, and if it approved, I will be considered as having been staying continuous with the skilled worker visa: (1) before ILR application + (2) waiting for ILR decision and/or appealing + (3) waiting for new skilled worker visa decision

I am not sure if period (2) and (3) are still considered as having continuously staying in the UK with skilled worker visa, or they will be considered as stop of skilled worker visa, and then recount 5 years after getting the new skilled worker visa?

Thanks!

[zimba]

After your application is decided, you can't proceed with a new application while already under Section 3C (e.g while waiting the outcome of AR). If you then apply for a new visa while under section 3C (an out-of-time application), then section 3C will be terminated and you become an overstayer for the new application to proceed.

[badou]

You can't proceed with a new application while already under Section 3C. If you apply for a new visa while under section 3C (an out-of-time application), then section 3C will be terminated and you become an overstayer for the new application to proceed.

Oh, I see.. This is super-important. I am really glad that I asked here, and very grateful of your help.

Then how about varying application while waiting for the decision of the previous application?
I am following your suggestion to plan to apply for skilled worker before Sep 14, when my current skilled worker visa expires, while I need to be prepared for the case that my employer cannot get the CoS on time.

Then in the case that I still don’t have my CoS on Sep 14, I have two plans
1. apply for dependent visa or ILR on that day, and I later when CoS arrives, ask UKVI to vary the application to skilled worker
2. apply for skilled worker visa without CoS, and I read that UKVI will usually give a deadline of submitting CoS, and then I can do that before the deadline, or if I cannot get CoS before that deadline, ask to vary the application to ILR or dependent.

Are there any problems in these plans?
My concern is that whether varying application is considered a new application or not. What I read is that the changed application will be considered according to the previous application’s submission date. Is my understanding correct?
Since the recommended way of UKVI to vary the application is to start a new application and then report that there was an old application to replace, I am not sure if they may mistakenly consider this as a new application..

Thanks!

[zimba]

I updated my answer above to clarify what I meant as I was talking about section 3C AFTER a decision was made. You can vary a pending application, as you described and maintain section 3C

[badou]

I updated my answer above to clarify what I meant as I was talking about section 3C AFTER a decision was made. You can vary a pending application, as you described and maintain section 3C

Thanks! That is really helpful!

Then if I don't get my CoS on time, I will start a skilled worker visa without CoS, explaining that my employer has submitted CoS application and it should be ready in a few weeks, and my understanding is that HO will give a deadline and ask for COS, and hopefully I get CoS before that;
And if I still don't get CoS before the deadline, I apply for dependent or ILR.

May I ask if I get CoS while waiting for dependent or ILR, can I vary my application back to skilled worker again?
Varying back to skilled worker perhaps seems to be non standard, but if I get CoS, I guess it is reasonable as the situation has indeed changed.

[zimba]

You can vary the pending application to any other