T1 Ent applying for ILR 5 year route but absense over 180day

[Adilj]

Hello Respectable moderators and members.

Im going to apply ILR through 5 year T1 Ent route in Aug 2017.

Initial visa : 21-07-12 (in country0
Extension : 23-08-15
Ilr DATE OF APPLICAITON I ASSUME : 22-08-17

Everything is in order from business to employees.

Only issue is that i have absense of over 180 days about 55 days extra in year 1 ( 2012 ) due to mothers illness.

MY absense are as follows:

Exit Entry
10-09-2012 15-03-2013 About 183 days ABSENSE DUE TO MOTHERS ILLNESS
27-06-2013 25-09-2013 About 90 days ABSENSE DUE TO MOTHERS ILLNESS (DAYS WILL BE 60 AS I WILL COUNT FROM DATE OF APPLICATION : 22-08-17)
09-12-2014 05-01-2015
22-09-2015 02-11-2015
19-01-2016 09-02-2016
19-07-2016 06-08-2016
28-12-2016 10-01-2017

Apart from year 1, year 2,3,4 and 5 absense are below 90 days per year.

Besides this all requirements are met and satisifed.

Your advises would be very much appreciated.

[CR001]

You need to count your absence backwards from, assuming application 22/08/2017, in 12 month cycles. This is how HO calculate it, not year 1, 2 etc of the visa you held.

90 days absence is irrelevant, not sure why you mention it.

[Adilj]

Thank You CR001 for your input.

My question remains the same that in 5 years continuous residency , there a year where i absense are over 180days due to mothers ilnness documentary evidence present.

I have come across a few posts where people have mentioned about discretion being used in case of serious, compelling or compassionate reasons such as serious illness, death etc.

Many thanks

[marcnath]

Thank You CR001 for your input.

My question remains the same that in 5 years continuous residency , there a year where i absense are over 180days due to mothers ilnness documentary evidence present.

I have come across a few posts where people have mentioned about discretion being used in case of serious, compelling or compassionate reasons such as serious illness, death etc.

Many thanks

I have not seen those posts myself, but if you have seen them, check the date.
There used to be some leeway in the guidance before, but they seem to have tightened it now.
The current manual reads:

Longer discretionary absences in cases where continuous residence has been
broken
Time spent here may exceptionally be aggregated, and continuity not insisted upon, for
cases where:
- There have been no absences abroad, see calculation of the five year period for
settlement, and authorised employment or business in the UK has not been broken by
any interruptions of more than three months or amounting to more than six months in
total for the whole five year period. Decisions in such cases must be taken at higher
executive officer (HEO) level or above, or
- There have been longer absences abroad, provided the absences were for compelling
grounds either of a compassionate nature or for reasons related to the applicant’s
employment or business in the UK. No single absence abroad must be for more than
three months at a time and any periods of long absence must not total more than six
months. If the example is work related, evidence will need to be submitted to show that it
would have serious implications for the employer or business if the travel had not been
undertaken. Where continuous residence has been broken, periods may be aggregated
or shortfalls disregarded only with the approval of a senior executive officer (SEO) or
Grade 7.

[CR001]

My question remains the same that in 5 years continuous residency , there a year where i absense are over 180days due to mothers ilnness documentary evidence present

The point you seem to be missing is that absence is counted in 12 month cycles, counting backwards from the date of ILR application. So you need to calculate the absence like that to see IF you can split it into 2 12 month cycles.

Assuming 22 August 2017 as the application date :

22 August 2012 to 21 August 2013 - xx days
22 August 2013 to 21 August 2014 - xx days
22 August 2014 to 21 August 2015 - xx days
22 August 2015 to 21 August 2016 - xx days
22 August 2016 to 21 August 2017 - xx days

You should note that very few (and they are lucky) get approved when they exceed 180 days, regardless of reasons.

[Adilj]

Thank you for your input CR001 and Marcnath.

So that means i have to apply extension for tier 1 entrepreneur again ? you think is it possible to do so mentioning the reasoning and then next year when once the period lapse i can apply for ILR.

Kindly Shed your knowledge

Many thanks

[marcnath]

Thank you for your input CR001 and Marcnath.

So that means i have to apply extension for tier 1 entrepreneur again ? you think is it possible to do so mentioning the reasoning and then next year when once the period lapse i can apply for ILR.

Kindly Shed your knowledge

Many thanks

Yes, that is correct. You can apply for extension - there is no need to mention any reasoning. You possibly qualify in Dec, but once you have your extension you need to meet the job criteria in the new extension period, which will take you some time, I assume.

You can still try for compassionate discretion. It will probably be rejected. You could then apply for your ILR as a fresh application and you would probably be able to meet the ILR requirement without having to create two additional jobs depending on how long the process of the 1st application takes. But this is not something I would choose myself as it can be risky and you will be overstayer for a period, impacting the conditions of your stay and that of any dependants.

[Adilj]

Dear Mr Marcnath,
Thank you for the input.

1.Are you sure i can apply for extension again, i was previously granted extension 2 years ago ?

2. Further to your advice, My 10 years will be completing in January 2018. But would not that still be affected under 180 days rule as during 2012-2013 i was out of the country for about 240 days in total.

3. Once i get the extension lets say its approved by dec 2017, so by Aug 2018 (5 years route via tier 1 ent) will i be able to apply ILR again. Job requirements will be valid until then or i have to wait for the period of two years and then apply for ILR?

Yes you are correct , thank you for the valuable information and advice.

God bless you

if Above questions could be answered i would be very grateful to you

[zimba]

1.Are you sure i can apply for extension again, i was previously granted extension 2 years ago ?

Yes, you can apply for a 2nd extension

2. Further to your advice, My 10 years will be completing in January 2018. But would not that still be affected under 180 days rule as during 2012-2013 i was out of the country for about 240 days in total.

You will not be completing 10 years as you do not have continuous lawful stay, you've had an absence of more than 6 months

3. Once i get the extension lets say its approved by dec 2017, so by Aug 2018 (5 years route via tier 1 ent) will i be able to apply ILR again. Job requirements will be valid until then or i have to wait for the period of two years and then apply for ILR?

You can apply when your absence limit in the last five years is not more than 180 days per each year.
Job creation requirement applies to your LAST grant of leave. So you need to show job creation evidence which was during your first extension period to be able to apply for your 2nd extension and AGAIN you have to show fresh job creation evidence for your ILR during the period of your second extension.

[marcnath]

Dear Mr Marcnath,
Thank you for the input.

1.Are you sure i can apply for extension again, i was previously granted extension 2 years ago ?

Of course you can

2. Further to your advice, My 10 years will be completing in January 2018. But would not that still be affected under 180 days rule as during 2012-2013 i was out of the country for about 240 days in total.

Yes, it would. I was talking about 5 year route - the 180 days should be ok from somewhere around Dec 17

3. Once i get the extension lets say its approved by dec 2017, so by Aug 2018 (5 years route via tier 1 ent) will i be able to apply ILR again. Job requirements will be valid until then or i have to wait for the period of two years and then apply for ILR?

You don't have to wait two years. Once you have 24 months of job creation you can apply for ILR

Yes you are correct , thank you for the valuable information and advice.

God bless you

if Above questions could be answered i would be very grateful to you

[Adilj]

Thank you Mr Zimba for clearing out! i am sure other members will take benefit of this information.

Furthermore Mr Zimba, So lets say i apply my second extension in Aug 17 and gets approved by Dec 17.
Qualify for ILR on 5 years basis with no more absence of 180 days in Aug 18. Now the question is since i will have two years of extension visa can i apply in Aug 18? Job creation evidence should be until Aug 18 ?

These are almost my final questions as i need to make a move.

Once again thank you for the Clarifications

[Adilj]

3. Once i get the extension lets say its approved by dec 2017, so by Aug 2018 (5 years route via tier 1 ent) will i be able to apply ILR again. Job requirements will be valid until then or i have to wait for the period of two years and then apply for ILR?

You don't have to wait two years. Once you have 24 months of job creation you can apply for ILR

Dear Mr Marcnath,
Just want to clarify on the above answer you said : That after extension i have to complete another 24 months of job creation for ILR. Dont you think i can apply ILR as soon as i complete 5 years of continious residence starting from July 2012.

Thank you

[marcnath]

3. Once i get the extension lets say its approved by dec 2017, so by Aug 2018 (5 years route via tier 1 ent) will i be able to apply ILR again. Job requirements will be valid until then or i have to wait for the period of two years and then apply for ILR?

You don't have to wait two years. Once you have 24 months of job creation you can apply for ILR

Dear Mr Marcnath,
Just want to clarify on the above answer you said : That after extension i have to complete another 24 months of job creation for ILR. Dont you think i can apply ILR as soon as i complete 5 years of continious residence starting from July 2012.

Thank you

Once you get your 2nd extension, you need to have 24 month job creation during your 2nd extension leave AND meet the 5 year criteria before you can apply for ILR. So if your 2nd extension comes in Dec, you need 24 months job creation between Dec and when you apply for ILR