1 year work related absence in qualifying 5 year period.

[O_Relly]

My friend is currently on his 2nd extension of his Tier1 General Visa. He first entered uk in Feb 2009 as an employee of a company head quartered in his home country, to work out their uk office. He worked here for 7 months after which he returned to their office in his home country where he worked for a year. After which he again returned to the uk to work in their uk office, and continues to do so till date.

During his first 7 months, he was paid in GBP and paying taxes locally, after which, when he returned to his home country, he was paid in local currency of his home country and paid taxes there. Since his return after the 1 year period he has been paid in GBP and has been paying taxes here in the uk. So basically he was economically inactive in the UK for the 1 year period when he was out of the UK.

He has now been advised by some friends, that he is eligible for ILR in Feb 2014, provided his employer provides a letter of work related absence for the 1 year.

3. During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months. Absences must be for a reason that relates to the reason for your stay in the UK, or for a serious or compelling reason such as serious illness. Your employer must confirm in writing the reason for your absence from the UK if it was related to your work. You must confirm in writing the reason for the absence if it was related to your business or self-employment or if it was for a serious or compelling reason.

Given that he has stayed with the same company for this entire duration, he is tempted to believe that since he is going to submit the most recent 12 months salary evidence, and a letter confirming his work related absence (of the 1 year) by his employer, will be sufficient.

Please advice.

[kmahere]

Hi, Please give his visa stamp, expiry dates, etc. Did he have an unexpired visa during the year he was out of the country?

[O_Relly]

His Tier 1 visa was valid throughout the entire period and he was working as a permanent employee for the same employer for the entire duration.

Edited: to avoid repetitive and slightly off the mark travel dates, which are mentioned in following posts.

[O_Relly]

I did go through calculating continuous period, but couldn't find any reference or information to the specific case of my friend.

There are no references that you should have been economically active in the UK, even whilst working for the same employer? It's difficult to interpret if we have a valid ILR case here?

Inputs anyone?

[O_Relly]

Bump. Anyone?

[Amber]

So long as absences are <180 days per 12 month period and he satisfies the other requirements for settlement, there shouldn't be an issue.

[O_Relly]

Thanks very much Amber, for the response.

Does this mean, even if his employer gave in writing, that he was working in their parent organisation in his home country, during this 12 month period, it won't be taken up for consideration?

Going by this line from here

Your employer must confirm in writing the reason for your absence from the UK if it was related to your work.

In all honesty, it does seem a bit daft, as the same page also says this,

3. During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months.

However, because he was with the same employer, can this be treated as an exceptional case?

[O_Relly]

Ok, on reading calculating continous period more carefully,

His exact dates as below,

Original grant and Tier 1 Visa validity:
First grant: 17 Nov 2008 to 17 Nov 2011
First extn: 18 Nov 2011 to 17 Nov 2013
Second extn: 04 Oct 2013 to 04 Oct 2016

Travel Dates and absences from UK:

10 Jan 2009 - First entered UK.
19 Jul 2009 - 31 Jul 2010 - Working from head quarters in home country. = 376 days

16 Oct 2010 - 23 Oct 2010 - Annual leave = 6 days
22 Dec 2010 - 5 Jan 2011 - Annual leave = 13 days
10 Dec 2011 - 7 Jan 2012 - Annual Leave = 27 days
17 Nov 2012 - 26 Dec 2012 - Annual Leave = 38 days

Going by the reference in pg19 of calculating continuous period, to try and evenly distribute his absence I picked 14 Jan 2014 as a potential ILR application date. See below,

ILR Application date: 14 Jan 2014

Year 1: 14 Jan 2014 to 15 Jan 2013 = 28 days
Year 2: 14 Jan 2013 to 15 Jan 2012 = 38 days
Year 3: 14 Jan 2012 to 15 Jan 2011 = 27 days
Year 4: 14 Jan 2011 to 15 Jan 2010 = 197 days + 19 days (vacation)
Year 5: 14 Jan 2010 to 15 Jan 2009 = 179 days

However, the number of absences still exceeds the 180 day mark in year 4, while still very close with 179 days in year 5.

--> Also on pg28, for Exceptional cases, it states, as quoted below,

Absences of more than 180 days in any 12 month period for employment or economic activity reasons are not considered exceptional.

Is my above inference and interpretation correct? Is there any other way in distributing his absence in such a manner where he is eligible for applying for his ILR just yet, or is his only option to wait until Feb 2015? Please clarify.

Cheers,
OR

[Amber]

What dates were you absent, write down the dates rather than how many days.

[O_Relly]

Apologies, it was there, but perhaps not clear, here are his dates of absence,


10 Jan 2009 - First entered UK.
19 Jul 2009 - 31 Jul 2010 - Working from head quarters in home country. = 376 days

16 Oct 2010 - 23 Oct 2010 - Annual leave = 6 days
22 Dec 2010 - 5 Jan 2011 - Annual leave = 13 days
10 Dec 2011 - 7 Jan 2012 - Annual Leave = 27 days
17 Nov 2012 - 26 Dec 2012 - Annual Leave = 38 days

[Amber]

Year 1: 14 Jan 2014 to 15 Jan 2013 = 28 days
Year 2: 14 Jan 2013 to 15 Jan 2012 = 38 days
Year 3: 14 Jan 2012 to 15 Jan 2011 = 27 days
Year 4: 14 Jan 2011 to 15 Jan 2010 = 197 days + 19 days (vacation)
Year 5: 14 Jan 2010 to 15 Jan 2009 = 179 days

You can start from November 2008 as Entry was within 90 days of EC was it not?

Thus would this work?

E.g.:

Y 1 - Dec 2008 - Dec 2009 - how many absences
Y 2 - Dec 2009 - Dec 2010 - how many absences
Y 3 - Dec 2010 - Dec 2011 - how many absences
Y 4 - Dec 2011 - Dec 2012 - how many absences
Y 5 - Dec 2012 - Dec 2013 - how many absences

[O_Relly]

Yes, entry was within 90 days of EC and hence my first choice was December, however the no. of days out of country in Year 2 was 232 days, and hence I picked up 14 Jan 2014, to try and even out the days of absence between 2 years. See December example below,


Y 1 - 16 Dec 2008 - 15 Dec 2009 - 148 days
Y 2 - 16 Dec 2009 - 15 Dec 2010 - 226 days + 6 days
Y 3 - 16 Dec 2010 - 15 Dec 2011 - 17 days
Y 4 - 16 Dec 2011 - 15 Dec 2012 - 51 days
Y 5 - 16 Dec 2012 - 15 Dec 2013 - 9 days

Any other options?

[Amber]

During This absence - Year 4: 14 Jan 2011 to 15 Jan 2010 = 197 days + 19 days (vacation). Was there a funeral or anyone seriously ill?

[O_Relly]

Am not entirely sure of his circumstances, but as far as I am aware no. Thanks very much Amber, will forward these details to my friend.

Cheers,