ILR - more than 180 days outside UK in 5 years

[HaidarHK]

Hello everyone,

I am due to apply for my ILR in March and need some clarification and assurances. All help is much appreciated.

I have been on working Visa in the UK for 5 years since 19th March 2008 and I am looking to apply for ILR in beginning of March 2013. My visa has been a combination of 2 years HSMP and 3 years Tier 1.

The main issue I have is that during the last 5 years I have been outside of the UK for about 271 days. Following is the break-up of my absences per year in reverse order:

Year 1: Mar 2013 – Mar 2012 (21 days) Tier 1 Visa
Year 2: Mar 2012 – Mar 2011 (85 days) Tier 1 Visa (split over 2 trips)
Year 3: Mar 2011 – Mar 2010 (44 days) Tier 1 Visa
Year 4: Mar 2010 – Mar 2009 (86 days) Tier 1 Visa (split over 2 trips)
Year 5: Mar 2009 – Mar 2008 (35 days) Tier 1 Visa (split over 2 trips)

- None of my visit/absence was equal or more than 90 days
- I have not been away for more than 180 days in an any one year

1) As per the rules of 180 days absence over a continuous period should I be worried? I am confused whether its 180 days per year or 180 days over 5 years.

2) I am definitely over 180 days over 5 years but I have a limited company of which I am a director and for trips in Year 2 and 3 I can provide invitation letters from other companies which I went to visit in my home country to work with. They were genuine business trips and I have a few business transactions with these companies to proof the work we did. What other proof can I provide?

3) My business didn't go very well so my bank statements and salary for Year 2 and 3 are very weak - is that going to be a problem?

4) I started full time employment in Year 5 and have bank statements for 10 months of salary which is sufficient from a monetary threshold for me to qualify. I do not have 12 month of salary slips. Is that a problem?

5) Do I need to take 12 month bank statements even if my salary only started from May last year (my ILR application due in Mar).

Thanks in advance everyone for your advice an guidance.

[lucozzade]

Guys,

I posted a query to UKBA as below on continuity and below is the response?

Dear team,

Can I request you to clarify the below query?
As per the new ILR rules for Tier 2(ICT) that have come into effect from 13 Dec, 2012 the statement regarding 180 days absence is quite ambiguous.

1. Regarding 180 days absence in a year:
The following link says "During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months." http://www.ukba.homeoffice.gov.uk/visas ... ettlement/

And the guidance note says ""No more than 180 whole days absence are allowed in any of the five, two, three or four consecutive 12 month periods, preceding the date of the application for indefinite leave to remain (ILR)"

Taking the above into picture, if a immigrant is out of the country for 8 months from November 2009 to July 2010 and he/she applies for ILR (assuming that he has completed five years legally) in Feb 2013 - according to the Guidance notes Is it correct in inferring that he/she will still be eligible? (from what we read). The split across years backdated from the application date (say 1st Mar 2013) is as below.

Year 5: 01-March-2013 to 28-Feb-2012 : 27 days
Year 4: 01-March-2012 to 28-Feb-2011 : 16 days
Year 3: 01-March-2011 to 28-Feb-2010 :152 days
Year 2: 01-March-2010 to 28-Feb-2009 :101 days
Year 1: 01-March-2009 to 28-Feb-2008 : 23 days

Could you please clarify if its 180 days in any consecutive 12 months period in the last 5 years or in any of the five, two, three or four consecutive 12 month periods (according to the guidance notes)?

2. Also if this absence breaks continuity due to any reason will the employer letter stating that this absence is official helps for the ILR process?


Response from them:

Dear Sir/Madam,

I am sorry that you think the guidance on calculating the continuous period for ILR is ambiguous. The reference to the ‘..five, two, three or four consecutive 12 month periods relates to the fact that some migrant categories can qualify for IRL in shorter period than 5 years, e.g. Tier 1 (Investor) migrants can qualify after 2 years, depending upon the size of their investment.

Regardless of whether a migrant’s continuous period is 2 or 5 years, they can be outside of the UK for reasons relating to the purpose form them being in the UK for up to 180 days in any of the specified 12 month periods without breaking continuity.

In the example you have provided, the absences in each of the specified 12 months do not exceed 180, therefore continuity would not be broken.

I trust this answers your question.

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Lucapooka/cs95tdg,

Thanks for your help and valuable advise so far. Can you help me to understand how UKBA verifies if you are on UK payroll during the absence . I wont be able to provide the P60s beyond 2010 as my employer was paying the tax for me till April 2010 and I dint have the NI number as well.

As requested before, please advise
1. Is there any route which u recommend rather than waiting for 2 more years :'( ?
2. Any idea on how will they veify if you were on UK payroll or not?

Thanks for your patience so far!

Rgds,
Mano

[uksettlement]

1) As per the rules of 180 days absence over a continuous period should I be worried? I am confused whether its 180 days per year or 180 days over 5 years.

2) I am definitely over 180 days over 5 years but I have a limited company of which I am a director and for trips in Year 2 and 3 I can provide invitation letters from other companies which I went to visit in my home country to work with. They were genuine business trips and I have a few business transactions with these companies to proof the work we did. What other proof can I provide?
No proof is needed as you are on tier 1

3) My business didn't go very well so my bank statements and salary for Year 2 and 3 are very weak - is that going to be a problem?
No

4) I started full time employment in Year 5 and have bank statements for 10 months of salary which is sufficient from a monetary threshold for me to qualify. I do not have 12 month of salary slips. Is that a problem?
No. If you qualify with 10 why provide 12

5) Do I need to take 12 month bank statements even if my salary only started from May last year (my ILR application due in Mar).
Take the bank statements for the same months as your salary slips

Also go through this link http://www.whatdotheyknow.com/request/c ... ermited_ab