A tough choice: ILR or FLR?

[Diamond Dog]

My case is a bit complicated so I’ll try to be as clear as I can…

I first came to the UK for postgraduate study in 2001 and completed my MA degree in the academic year September 2001 - September 2002. In Sept 2002- Sept 2003, I worked abroad (a non-EU country) as a teaching fellow at a university. From 2003-2006, I was again in the UK where I completed my PhD. In the first half of 2007, I was engaged on a research project in my home country. The two ‘gaps’ (absences from the UK in 2002/3 and 2007) were not covered by visa – in both cases, I left the country before the expiry of my visa and reapplied for a new visa on account of a new arrangement.

In the summer of 2007 I was employed as a lecturer on permanent contract at a university in the UK. I was granted a 5-year work permit and work visa, from August 2007 to August 2012. The work permit and the visa will, thus, expire in 2012 even though I still have a valid contract with the same employer. Therefore, I’ll need to do something about it…

My question concerns the choice Indefinite vs. Further Leave to Remain. Namely, as an academic, I’ve spent large periods of time researching in different libraries abroad (EU and Non-EU countries), attending conferences, and providing pastoral care for exchange students. That is the nature of my job and all absences have had the approval of my employer. No single absence was longer than 80 days, but altogether they go well beyond 180 days over 5 years – according to my preliminary count, it will come to around 550 days in total (out of 1825 days - 5 years). It is a lot, I know, but the absences are business related and it is reasonably clear that for professional and personal purposes, I have been based in the UK ever since 2001.

To my questions now. In view of these absences, what are my chances of getting an Indefinite Leave to Remain in August 2012? I am aware that there is some discretion as to what is regarded as a business trip but there is no clear guidance as to the latitude of that discretion. Equally importantly, is there any risk involved in exploring this path entirely before applying for an extension? For example, if my application and appeal for ILR get refused, will I still be able to apply for extension of my leave to remain? Finally, if I do have to apply for an extension, will that be done straightforwardly by a new sponsorship letter from my university (‘transitional arrangement’ for work permit holders) or will I have to leave the UK and re-apply under the point-based tier system? The latter would complicate my situation considerably: while I do get enough points to be eligible, I still have to bear in mind the cap on the number of Tier-2 workers to be admitted to the UK annually (no guarantees that I will be in this group)… and I am not sure what would happen to my contract (salary, retirement benefits etc) in the meantime.

Too many questions, I know, but any help would be highly appreciated…

Merry Christmas to everyone!

[geriatrix]

I’ve spent large periods of time researching in different libraries abroad (EU and Non-EU countries), attending conferences, and providing pastoral care for exchange students. That is the nature of my job and all absences have had the approval of my employer. No single absence was longer than 80 days, but altogether they go well beyond 180 days over 5 years – according to my preliminary count, it will come to around 550 days in total

550 days of absences shouldn't be a problem if your employer can provide a supporting letter to justify each of these absences for "employment related" purposes. I assume that the majority of these absences would be for "research" overseas - and that may be hard for your employer to justify. But if that can be done, I don't see why you cannot be granted settlement.
Reading the second post in this topic should be useful.
See also BD (work permit - continous period) Nigeria [2010] UKUT 418 (IAC).

Equally importantly, is there any risk involved in exploring this path entirely before applying for an extension? For example, if my application and appeal for ILR get refused, will I still be able to apply for extension of my leave to remain?

It may be possible to make an out-of-time application under Tier 2, but I wouldn't suggest that you take this route because you will end up being an overstayer for the period from the day your current leave expires until the day your out-of-time application is approved (and your ILR clock will be reset).

Finally, if I do have to apply for an extension, will that be done straightforwardly by a new sponsorship letter from my university (‘transitional arrangement’ for work permit holders) or will I have to leave the UK and re-apply under the point-based tier system? The latter would complicate my situation considerably: while I do get enough points to be eligible, I still have to bear in mind the cap on the number of Tier-2 workers to be admitted to the UK annually (no guarantees that I will be in this group)… and I am not sure what would happen to my contract (salary, retirement benefits etc) in the meantime.

Because you were granted WP leave for 5 years, I am not sure if you can take advantage of the "transitional arrangements" if you apply for leave to remain near to the date of expiry of WP leave - you may be required to meet the full requirements for scoring points under Tier 2 (General) to switch (from WP to Tier 2). An alternative, under which you may be able to take advantage of transitional arrangements, may be to apply for Tier 2 leave 3-4 months before your current leave expires.

[Diamond Dog]

Thank you for the sound advice. You're right, most of these absences were spent on archive research and project networking in the target area. Other absences were for conferences. I think all this can be proven by my employer but, of course, it is up to the case worker (or senior manager) to decide on the evidence.

If an out-of-time application for FLR would entail overstay then it is out of the question. I need to explore other options.

Would an early application for Tier 2 according to the provisional arrangement (if that avenue is at all possible) make an 'insurance policy' if my ILR application fails? (I have to admit that I am not in the know about the transition from wps to tiers so can't see the legal difference it would make to apply three or four months early...)

[geriatrix]

Would an early application for Tier 2 according to the provisional arrangement (if that avenue is at all possible) make an 'insurance policy' if my ILR application fails? (I have to admit that I am not in the know about the transition from wps to tiers so can't see the legal difference it would make to apply three or four months early...)

The period of grant of Tier 2 (General) leave that you may be granted will be in accordance with 245HE. If your settlement application is refused when you have valid Tier 2 leave remaining, you can continue to remain in the UK (until the Tier 2 leave expires).

[Diamond Dog]

Thanks for the link. I'll apparently need a PhD in maths to get the equation right, but I'll get there...