ILR - excess absences

[ab2012]

I have exceeded 180 days absences over the last 5 years but no single trip was more than 90 days (maximum was for 45 days). All my absences were consistent with annual paid leave, in addition to a couple of absences during Christmas/New year closures (also paid in the UK). In addition to another short business trip (one week) and a further short trip (10 days) for family bereavement. The total of ALL absences (including the one week-business trip and the 10-day trip due to bereavement) amount to 240 days and no single trip exceeded 90 days. I was on a 5-year work permit with the same employer which expired mid-April 2012 and I have switched into Tier 2(general) before the expiry of my previous 5-year leave to remain. My current leave to remain is valid until May 2013. I applied for ILR using same day service before the expiry of my previous 5-year work permit-based residence permit (withing the last 28 days of the 5 years) but was told that I am not eligible for ILR because I exceeded 180 days over 5 years. Actually I honestly was not aware of the 180 day-limit and I didn't mention on the SET(O) that my absences were consistent with annual paid leave (I simply mentioned summer holidays and Christmas/new year holiday). I was advised at the PEO not to submit my application and instead extend my stay then try the ILR by post or in person in Croydon where there are Senior caseworkers who might take discretion to my favour. As I was not left with much time before the expiry of my previous leave, I extended in the Tier 2 (general) category for another year, and I am still working with the same employer (on a permanent position).

My questions are as follow:

1- Can I try now (in May or June) applying for ILR hoping to get a discretion to my favour or shall I rather wait until next year 2013 when my total absences become less than 180?

2 - How likely to get discretion used to my favour when I include an employer letter confirming that my absences were consistent with annual paid leave and that I was on a UK payroll and paying tax here in the UK (I have the five P60 forms and all payslips for the last five years as well as ban statements for the last five years). I was also paying my bills (phone) and tenancy by direct debit here in the UK while I was away.

3- Would the fact that no absence exceeded 90 days increase the chances of getting the discretion used to my favour?

4- Would a postal application be better than same day service in this case?

5- Finally, would you advise that I apply through a solicitor or an immigration adviser, both charge too much (~ £1500), or I just apply myself?

Your advice on this issue would be much appreciated as I am getting confused messages from different people. I even contacted a solicitor who told me that the 180 day limit does not apply to Work Permit based residence ?! and I had to point this solicitor to the UKBA regulations to prove that this is an issue and it applies to WP and Tier 2 ILR applications!

I only discovered this forum recently (when Googling for similar cases to mine) and I have found it a great source of valuable advice and help. It is a pity I discovered it too late !

[Sushil-ACCA]

if any of yr trip is not exceeding 90 days and u got all evidences or supporting for all yr trips than u should be ok as per present trend

[ab2012]

if any of yr trip is not exceeding 90 days and u got all evidences or supporting for all yr trips than u should be ok as per present trend

Thanks Sushil-ACCA,
Yes, none of my trips exceeded 90 days (maximum was 45 days), and my employer will provide me with a letter to confirm all my absences were consistent with annual paid leave and that I was paid here in the UK. Also, I can show on my bank statements that I was paying my landline and mobile phone bills as well as tenancy by direct debit.

- Would you recommend using the same day service or by post?
- Shall I apply through a solicitor or immigration adviser or just apply by myself?

[vinny]

See also settlement and continuous period.