What if Tier 1 holder was on unpaid leave?

[ukswus]

I suspect quite a few Tier 1/HSMP people were out of the UK at some point on unpaid leave. For example, people could go abroad for a short break between employments, and naturally this doesn't fall in the category of work-related travel, paid leave, or serious/compelling reasons. Refusing applications on such grounds would undoubtedly be very unfair, as no-one was aware of such rules when they entered UK (and such leaves were always disregarded in the past as a matter of routine, as long as the total was less than 180 days over 5 years). An alternative would be to lie on the application that the absence was for work-related or leave reason, but lying is bad (let alone risky- as caseworker may double-check the provided information with employers, even though Tier 1 holders are not required to submit this evidence with their ILR application).

It's also not clear how this affects self-employed Tier 1 people (especially sole traders). Do they have total liberty to justify any absences they had by claiming that they were work-related/leaves? If so, they will be advantaged compared to employed Tier 1 holders, as they pretty much may claim whatever reasons for absences they want on the SET(O) form.

I still believe that they would disregard such absences, if the total was under 180 days for 5 years (see items D2 and D3 in the new application form), but nagging doubts remain. I hope the guidance will clarify this.

[ukswus]

I suspect quite a few Tier 1/HSMP people were out of the UK at some point on unpaid leave. For example, people could go abroad for a short break between employments, and naturally this doesn't fall in the category of work-related travel, paid leave, or serious/compelling reasons. Refusing applications on such grounds would undoubtedly be very unfair, as no-one was aware of such rules when they entered UK (and such leaves were always disregarded in the past as a matter of routine, as long as the total was less than 180 days over 5 years). An alternative would be to lie on the application that the absence was for work-related or leave reason, but lying is bad (let alone risky- as caseworker may double-check the provided information with employers, even though Tier 1 holders are not required to submit this evidence with their ILR application).

It's also not clear how this affects self-employed Tier 1 people (especially sole traders). Do they have total liberty to justify any absences they had by claiming that they were work-related/leaves? If so, they will be advantaged compared to employed Tier 1 holders, as they pretty much may claim whatever reasons for absences they want on the SET(O) form.

I still believe that they would disregard such absences, if the total was under 180 days for 5 years (see items D2 and D3 in the new application form), but nagging doubts remain. I hope the guidance will clarify this.

Ok, they have posted the guidance:

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

As usual, they have made things even more confusing. For example, they say:

In the following categories, absences must be for reasons connected with the applicant’s purpose for being in the UK or for serious or compelling compassionate reasons. Evidence, as specified above, must be provided for compelling or compassionate reasons only:

UK ancestry
business person
investor
innovator
writer, composer, or artist
retired person of independent means
Tier 1 (General)
Highly skilled migrant programme (not applying under Appendix S of the rules)

What exactly does this mean that the absences "must be for reasons connected with the applicant’s purpose for being in the UK"? Coming back to my original post, is taking a short holiday in between employment supposed to fall into this category?

They do make a concessions for Tier 2 migrants by allowing them to count short holidays on conclusion of employment, but they don't say this clearly in regards to Tier 1 holders.

[ukswus]

Having thought about this a bit, I think UKBA is overstepping its authority with regards to tier 1 holders, and maybe not a little bit. The immigration rules clearly say the following:


*******************************************************

245AAA. General requirements for indefinite leave to remain

For the purposes of references in this Part to requirements for indefinite leave to remain, except for those in paragraphs 245BF, 245DF and 245EF:

(a) "continuous period of 5 years lawfully in the UK" means residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain;

(b) Except for periods when the applicant had leave as a Tier 1 (General) Migrant, a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, a Tier 1 (Exceptional Talent) Migrant, a highly skilled migrant, a businessperson, an innovator, an investor, a self-employed lawyer or a writer, composer or artist:

(i) the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor; and

(ii) any absences from the UK during the five years must have been for a purpose that is consistent with the continuous employment in (i), including paid annual leave or for serious or compelling reasons.

*****************************************************


They do also say that

(j) The applicant must provide the specified documents in paragraph 245CD-SD to evidence the reason for the absences set out in paragraph 245AAA, where the absence was due to a serious or compelling reason.

However, the reference is made to article 245AAA, which clearly says that restrictions on absences apply to sponsored employees only. Also, it only mentions the requirement to provide evidence for compassionate travel, and says nothing about the requirement that absences for Tier 1 holders must only be "for reasons connected with the applicant’s purpose for being in the UK or for serious or compelling compassionate reasons" (although, of course, it also depends on what exactly they mean by "reasons connected with the applicant’s purpose for being in the UK", which appears to be different from the "employment-related reasons" which apply to Tier 2 holders).

To summarize, if they start refusing Tier 1 holders because they dared to take short unpaid holidays at some point during their 5 year stay in the UK, I expect the lawyers will have a pretty good case to make to defend their clients' interests.

[M2008]

Some more intresting stuff

The Secretary of State considers the granting of ILR in the UK to be a privilege and the continuous period requirement is the minimum amount of time which a migrant must spend in employment or being economically active in the UK before being eligible to qualify for ILR.

[ukswus]

Some more intresting stuff

The Secretary of State considers the granting of ILR in the UK to be a privilege and the continuous period requirement is the minimum amount of time which a migrant must spend in employment or being economically active in the UK before being eligible to qualify for ILR.

Being economically active is a vague term. It may include, for example, applying for jobs. So, what's wrong with going abroad AND applying for a job at the same time?

Plus, the requirement of being continuously economically active never really applied to Tier 1 holders, as far as I am aware.

[gaboon_viper]

hi

hi

please help i am very very confused

i took 2 months in feb08 and 2.5 months in april12. total 126 days out in 5 years.

i am on tier1 general. i am due in Feb13. self employed director

do i need to show some proff. or just write dates and reason... holidays, family.

do tier1 general holders should be on jobs for 5 years for applying for ilr?

your help will be greatly appreciated

thanks

[ban.s]

Plus, the requirement of being continuously economically active never really applied to Tier 1 holders, as far as I am aware.

Indeed it was - AFAIK during 2009/2010 - period of unemployment of more than 3 months was considered to be against the clause of 'continuous economic activity'. However, this clause was later removed.

I was exploring self employment contracting options during that period and just for this very clause I stayed with my perm employment that time until I gained ILR.

[thatsy]

Any further info on this topic? Has anyone successfully got their ILR approved under new rules who had unpaid absences?

[cs95tdg]

Any further info on this topic? Has anyone successfully got their ILR approved under new rules who had unpaid absences?

I have seen a few, but you will need to follow the topics posted recently to find them. One example: http://www.immigrationboards.com/viewto ... c&start=80