Gurus - please help ILR query

[tan777]

Dear all
I invite your valuable inputs on case below

June2006-May2008(WP issued in India)
June2008-30May2010(Ext inside UK)
**with above ,spent 3 continuous yrs in UK
July2009-July2010(Absence from UK)
July2010-till date in the Uk.

Left UK July 2009 due to off-shoring drive. My visa then was valid until 30 May 2010. I was working for same employer when they got me ICT tier2 established staff. I applied for this in VFS on 14 June 2010 which is within 28 days of expiry of my previous WP.



I had below queries
1) Can I apply for ILR in July 2015- ? ( Note rule is entry clearance on ICT after 6 April 2010 is not allowed ILR application)
2) Or I am not eligible given my absence in 2009-2010 was not work related ie. with no UK financial activity hence ICT issued to me in 2010 falls into rule put in above point)

Any helpful views will be most appreciated.

Thank you

[loveworld]

To be honest it is very difficult to predict home office rules after 1 yr what will happen so in my advise please wait..

[tan777]

To be honest it is very difficult to predict home office rules after 1 yr what will happen so in my advise please wait..

Thanks but need to know if Apr 2010 rule applies to me or not

[manci]

What was your date of departure from the UK in July 2009 and the date of re-entry in July 2010?

AND

how would you describe this absence in the context of the following two requirements:
1.
Absences must be connected to the applicant’s sponsored or permitted employment
2
If the absences are in connection with other employment outside the UK, which
demonstrates the UK employment is secondary, these are not permitted absences, and the continuous period requirement is considered broken.

[tan777]

What was your date of departure from the UK in July 2009 and the date of re-entry in July 2010?

AND

how would you describe this absence in the context of the following two requirements:
1.
Absences must be connected to the applicant’s sponsored or permitted employment
2
If the absences are in connection with other employment outside the UK, which
demonstrates the UK employment is secondary, these are not permitted absences, and the continuous period requirement is considered broken.

Thanks Manci. Dep 7/7/9 rentry 11/7/10. It is difficult to give valid backing for this absence but then I am also checking as I stand , am I in any position to even plan for 2015 application- barring possibility laws change.

[manci]

Since your absence was more than 360 days it would not be possible to break it into two periods of max 180 days each by the judicious timing of the ILR application.

So, unfortunately, even if you satisfied the two requirements I quoted above, continuity was broken by your July 2009 - July 2010 absence and since the 5 year period which started when you returned to the UK in July 2010 could not, by definition, include a period of leave under the pre-April 2010 PBS rules or work permit arrangements, IMHO you will not be eligible to apply for ILR in 2015 or at all while under T2 ICT.

[vitonave]

Hi Team,
I have similar situation but with gap of 182 days. My details are mentioned below. Can you please help and update if eligible for ILR.


WP Issued in India: 28-Nov-07 for 1 year
First Arrival in UK: 11-Dec-07
WP extended in UK: 22-Oct-08 valid till 10-Dec-09
First Exit: 04-Dec-09
COS Issued in India: 21-May-10
TIER 2 ICT Established Staff issued: 01-Jun-10 to 04-July-12
Second Arrival in UK: 07-Jun-10
TIER 2 ICT Long Term Leave to Remain issued: 25-Jun-12 to 17-July-14

between second arrival and first exit, I didn't get any income in UK - all paid in India. So far I have spent nearly 304 days out of UK either on annual leave, business trip and including 182 days of gap between first exit and second arrival.

I would like to have help on ILR eligibility considering my second visa stamped after 06-Apr-10, questions I have are
1) Do I quality for ILR based on initial visa issued in Nov-07?
2) I have been working for the same client, can I show the gap as company requirement / personal emergency backed by letter from HR?

Appreciate your time and thank in advance for the help.

Kind Regards
Vish

[manci]

Unfortunately you are not eligible for ILR because continuity has been broken by your absence without valid leave in the period Dec 09 - Jun 10.

see the last para on p.26:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

If the applicant’s leave expires whilst they are outside the UK and they apply for fresh entry clearance more than 28 days after the expiry of their previous leave, then the continuous period is deemed broken and leave is not aggregated.

[tan777]

Manci and other Gurus.
I am still exploring if my case fits within rules. I did apply 2 times for ILR (July 2013 and Dec 2013) both were rejected for same ditto reason i.e. absence from the UK more than 180 days in 2 consecutive years. However- the reason for refusal did not at all include the fact that my current entry clearance was given after 6th April 2010. So just to put it again - There was no visa gap before I acquired Established Staff ICT T2 in 2010 - but my entry was in July 2010 in to the UK. If UKBA did not reject the two applications because of 6th April 2010 rule - (they could have easily said - you didn't spent 5 yrs in the UK) - should I explore for further application in 2015 please?

[tan777]

Hello World....anyone out there who has informed view plz

[manci]

you have given insufficient information re.
a) your immigration history
b) your absences with dates

[tan777]

Manci
Thanks. Here it is

June2006-May2008(WP issued in India)
June2008-30May2010(Ext inside UK)
**with above ,spent 3 continuous yrs in UK
July2009-July2010(Absence from UK)
July2010-June2012-Tier2 ICT Established Staff
June2012-Jan2014-Tier2 ICT Long term staff
Jan2014-till date(General Tier 2 working with separate employer visa valid till 2017).

Left UK July 2009 due to off-shoring drive. My visa then was valid until 30 May 2010. I was working for same employer when they got me ICT tier2 established staff. I applied for this in VFS on 14 June 2010 which is within 28 days of expiry of my previous WP.

I applied for ILR in July 2013 : refused due to long gap reason only. Applied again in Dec 2013 just to break absence in 2 6 month periods: refused for same absence reason.

What I am trying to understand is if I can apply next year or 6th April 2010 related rule will affect it?

[manci]

Manci
Thanks. Here it is

June2006-May2008(WP issued in India)
June2008-30May2010(Ext inside UK)
**with above ,spent 3 continuous yrs in UK
July2009-July2010(Absence from UK)
July2010-June2012-Tier2 ICT Established Staff
June2012-Jan2014-Tier2 ICT Long term staff
Jan2014-till date(General Tier 2 working with separate employer visa valid till 2017).

Left UK July 2009 due to off-shoring drive. My visa then was valid until 30 May 2010. I was working for same employer when they got me ICT tier2 established staff. I applied for this in VFS on 14 June 2010 which is within 28 days of expiry of my previous WP.

I applied for ILR in July 2013 : refused due to long gap reason only. Applied again in Dec 2013 just to break absence in 2 6 month periods: refused for same absence reason.

What I am trying to understand is if I can apply next year or 6th April 2010 related rule will affect it?
continuity has not been broken by leaving the UK and obtaining entry clearance in June 2010 because you applied within 28 days of the expiry of your visa.
see p27:
https://www.gov.uk/government/uploads/s ... eriods.pdf

your 5 year qualifying period started in Jan 10 (with a 6 month absence) and will finish in Jan 15. You you will be eligible to apply for ILR 28 days before the end of the qualifying period.

[tan777]

Manci
Thanks. It is July 2010 I re-entered the UK, so do you reckon 6th April 2010 rule won't affect me because my previous visa continuity wasn't broken , even though I was out of the UK for 1 yrs previous to July 2010. I ask this because you state Jan 2010 and Jan 2015 in your second comment, so assuming July may be an issue

[tan777]

Anyone pl can comment...

[tan777]

Manci,
I am further confused as my company solicitor takes a view that given my total period outside the Uk was greater than 180 days between July 2009 and July 2010, they have a view I cannot use my leave in prior ICT2 as continuity was broken due to the last part of below clause in p27

'applicant leaves the UK with valid leave and re-enters the UK whilst that leave
remains valid, provided the absence(s) do not exceed 180 days in a relevant 12
month period.'


However; I think 'relevant 12 month period' means a period from any 5 years used to apply for ILR, in my case I use only 6 months of my previous leave on ICT2.

So- could you pl advise if my understanding is correct, and I am still good to go ahead to apply on Jan 2015 please?

[tan777]

Any view please?

[manci]

by reference to p19 in the document for which the link is above put it to the company solicitor that you plan to apply so that Year 1 is Jan 10 - Jan 11 and that in this period your absence did not exceed 180 days.

You could also try to email workoperationalpolicy@homoffice.gsi.gov.uk and ask about your ILR eligibility considering your absences. If you email them give the exact dates, not just the months.

[tan777]

Thanks Manci

[tan777]

Hi Manci,
Looking forward for your kind help here again.

This is re your post "Apr 14 Change in Rules - Switching from T2 ICT to T2G", which I read in full detail. Just to summarise my case so that you don't have to go through above again,

June2006-May2008(WP issued in India)
June2008-30May2010(Ext inside UK)
**with above ,spent 3 continuous yrs in UK
July2009-July2010(Absence from UK)
July2010-June2012-Tier2 ICT Established Staff
June2012-Jan2014-Tier2 ICT Long term staff
Jan2014-till date(General Tier 2 working with separate employer visa valid till 2017).

I have below questions,
1) Given I have T2 G visa until 2017, does new rule mean I cannot extend it further even if my employer wants to?
2) Can you confirm to me can I apply for ILR in July 2015 with full 5 year period within the UK ,with T2 G (2014-2015) + T2 ICT Est Staff (2010-2014) combo - that excludes my previous WP period prior to July 2010 - and will be still eligible to get an ILR?

Will truly appreciate if you can help.

Thanks.

[manci]

Hi Manci,
Looking forward for your kind help here again.

This is re your post "Apr 14 Change in Rules - Switching from T2 ICT to T2G", which I read in full detail. Just to summarise my case so that you don't have to go through above again,

June2006-May2008(WP issued in India)
June2008-30May2010(Ext inside UK)
**with above ,spent 3 continuous yrs in UK
July2009-July2010(Absence from UK)
July2010-June2012-Tier2 ICT Established Staff
June2012-Jan2014-Tier2 ICT Long term staff
Jan2014-till date(General Tier 2 working with separate employer visa valid till 2017).

I have below questions,
1) Given I have T2 G visa until 2017, does new rule mean I cannot extend it further even if my employer wants to?
you can extend your T2G leave to Jan 2020 (6 year cap)

2) Can you confirm to me can I apply for ILR in July 2015 with full 5 year period within the UK ,with T2 G (2014-2015) + T2 ICT Est Staff (2010-2014) combo - that excludes my previous WP period prior to July 2010 - and will be still eligible to get an ILR?
no, this cannot be done because the 5 year qualifying period would not include leave under the rules before 6 April 2010.

Will truly appreciate if you can help.

Thanks.

[tan777]

Manci
Many thanks for your response, so even though I shifted to T2 G in 2014 from my erstwhile ICT T2 LT staff, you think 6 yr counter will start from 2014 ie. point of my T2 G start and not actually that of ICT in 2010. If you don't mind could you kindly throw some light why is that the case , All I wanted to confirm is what I read (2020) is correct and we both aren't missing anything- this means a Lot to me. Hope you will respond and I shall truly be grateful to you.

[manci]

Manci
Many thanks for your response, so even though I shifted to T2 G in 2014 from my erstwhile ICT T2 LT staff, you think 6 yr counter will start from 2014 ie. point of my T2 G start and not actually that of ICT in 2010.
yes, this was the change to the immigration rules introduced in Oct/Nov 14. Read 245HE(a)(iv):
https://www.gov.uk/government/uploads/s ... _final.pdf

If you don't mind could you kindly throw some light why is that the case , All I wanted to confirm is what I read (2020) is correct and we both aren't missing anything- this means a Lot to me. Hope you will respond and I shall truly be grateful to you.

[tan777]

Manci


Many thanks. Just to be perfectly clear I assume you refer to change in bold that relaxed somewhat stringent nature of earlier ruling for ICT t2 holders.

"(iv) except where (b) applies, the difference between the continuous period of leave that the applicant has already been granted (notwithstanding any breaks between periods of leave of up to 28 days) as a Tier 2 Migrant (other than as a Tier 2 (Intra-Company Transfer) Migrant), and 6 years. "

So I assume ICT of any type has been excluded from 6 year counter. Just to try and back this up further, I do actually see same tone in T2 policy guidance ( https://www.gov.uk/government/uploads/s ... e_v0_6.pdf ) 23 bullet 74 & 75 - no mention of ICT there.

So I take if Idon't get ILR in Jan 2015… 2019 is final opportunity ...still Pl shout if this is not close to truth- last thing I want is to assume too early;)

[manci]

Manci


Many thanks. Just to be perfectly clear I assume you refer to change in bold that relaxed somewhat stringent nature of earlier ruling for ICT t2 holders.
yes
"(iv) except where (b) applies, the difference between the continuous period of leave that the applicant has already been granted (notwithstanding any breaks between periods of leave of up to 28 days) as a Tier 2 Migrant (other than as a Tier 2 (Intra-Company Transfer) Migrant), and 6 years. "

So I assume ICT of any type has been excluded from 6 year counter. Just to try and back this up further, I do actually see same tone in T2 policy guidance ( https://www.gov.uk/government/uploads/s ... e_v0_6.pdf ) 23 bullet 74 & 75 - no mention of ICT there.
yes, the policy guidance para 192 reflects the immigration rules but if there is any discrepancy between the two (which hasn't been unknown) then the immigration rule takes precedence as it is the law

So I take if Idon't get ILR in Jan 2015… 2019 is final opportunity ...still Pl shout if this is not close to truth- last thing I want is to assume too early;)
Assuming you will continue to be sponsored you will be eligible to apply for ILR in the period Jan 2019 - Jan 2020

btw - by reference to a previous post (above) I still think that you may be eligible to apply for ILR in Jan 2015 if you had continuous leave since Jan 2010 and the absences were for a permitted reason (work or compassionate) Have you put this to the company solicitor?