ILR and holiday/leisure absences - LTD company director

[nzgreenie]

Hi all,

Apologies if this has been answered before; I have had a good search through but could not find anything relating to my circumstances.

I am due ready to apply for ILR after having worked the last 5 years on Tier 1. All that time has been as a company director i.e. as working as Limited Company, placed as a consultant via an agency on various assignments.

I have been absent from the UK on occasion for holiday/returning home to family weddings, both during, and between contracts as a consultant (i.e. i had no contract). There were 3 of the latter; the longest was 42 days and the total from these absences was 88 days over 5 years.

There have been other breaks/holidays where I was in Europe or the USA. All of these trips were during a contract where I had permission to take leave though I was not paid for these days.

In total, I have been absent in the last 5 years for 204 days.

I am of the understanding that if you are absent 'unpaid' for more than 180 days this is considered as not meeting the continuous period requirements.

My questions are:
a. Do I have to count those trips where I was away for a few days on holiday and not paid for those trips? (I have had a continuous salary and divided paid into my account during these absences, indeed including the ones between contracts).
b. What documentation might I need from an agency or company I was placed with to ensure those absences are accounted for?
c. Is there a high risk in being declined for ILR if I apply under these circumstances - if so should I consider switching to a partner visa? (I have been living with someone for more than 2 years who is a UK citizen).

If you are able to help your advice here would be most appreciated.

Thanks,

nzgreenie

[nzgreenie]

Thinking about this last night after posting, I should add that at all times during absences I was either in a contract or seeking one, and can get my agencies to write a letter to this effect…that although I was not paid on those days, the way I work cannot have ‘paid leave’ as it is based on days of work as a consultant.

Further, It is actively encouraged for any extended periods of absence (2 weeks or more) they should be taken between contracts instead of during them – again, all of this I can get the agencies I am registered with to testify this.

Finally, during all absences I was still paid a regular weekly salary and dividends, as per my bank statements.

I don’t know if that helps?

[vishal17jan]

I am exactly in the same boat with exactly same situation.

Can someone please reply this?

or should we call ukba and confirm this?

Thanks
V

[solospy]

There are no such requirements as "paid" or "unpaid" holidays. You are either out of the UK or not.

UKBA are not bothered about whether you get paid for your holidays or not. Doesnt matter if you are director or an employee.

[nzgreenie]

Thankyou Solospy. I totally get the principle here - it's the evidencing of I'd like to know how to approach.

That worries me is, when calculating absenses:

“This also includes, if appropriate, any paid annual leave. Evidence in the form of a letter from the employer setting out the reasons for the absences, including annual leave, must be provided.”

Basically there is nothing in the guidance for us consultants on how to approach the explaining of our travel outside of the country – the only context they have assumes you are an employee, so I want to know how to approach collating evidence to explain my absences as someone who does not get paid annual leave.

I do feel my approach to use letters from the companies I worked for and agencies I was placed through should meet the evidence requirement of ‘continuous lawful leave’.

BUT: Is there someone else out there who has done this as a company director before and been successful? Probably not under the new guidance given the change in guidance was only a month ago, but under the prior guidance in place how did they account for absences as a consultant/company director?

Cheers

[cs95tdg]

T1G applicants (If that's your current T1 immigration category) are not required to provide an employer letter(s) to confirm their absences (annual leave or business related) according to the new rules. It's true that the immigration rules state that all absences must be for reasons connected with the applicant’s purpose for being in the UK or for serious or compelling compassionate reasons. But evidence, is only required for those absences due to compelling or compassionate reasons.

Have you read the latest guidance & the latest Immigration rules to understand the changes around absences and evidence required? If not please refer to the following...

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

http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/

[nzgreenie]

Hi,
Thanks. Yes I have read the first. It’s the first time I‘ve seen the second link. I think there is an inconsistency in the two?
In link 1 it says:

“The applicant must provide reasons for these absences In all categories except:
Tier 1 Investor
Tier 1 Entrepreneur
Tier 1 Exceptional Talent, and
Highly Skilled Migrants (applying under Appendix S of the rules)
Person established in business under the provisions of an EC Association Agreement (paragraph 222). “

So T1G isn’t listed there. It is listed later in the doc as:

“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) “

So I read that as I do need to provide evidence.
But THEN in your second link it says:

“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:
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.”

So it DOES list T1G in the second but not the first, where it seems to have been left off the correct list.

So I am officially as confused as a baby in a topless bar…