93 days out of UK on hsmp for ILR

[venurajitha]

Dear Members,

I've a big question which I need to solve ASAP.

I'm on HSMP visa and I'm eligible for my ILR in Feb 2010 as per new judicial review.

I also understand I should not be away from UK for more than 3 months and total 180 days on holiday in total 4 years period. But, I had stayed in India for 93 days (from 11th November 2008 to 11 Feb 2009) went to set-up a business but I couldn't finalise the deal and had to come back without any concrete solution.

As I said, i'm away for 93 days that too, when I count in one way, the total number of days away from UK are 93 days. But If I count the other way the total number of days come to 91 days only.

I try to put both scenarios for your understanding as below.

1) for 93 days calculation: If I count 11th November 2008 (the day I left UK) and 11 February 2009 (the day I've arrived to UK) as I was away from UK the total number of days coming to 93 days. Why because on 11th November and 11th February (i.e. on these 2 days) I got stamped by the immigration officer in India. If I include these two days as I'm away from UK then it comes up to 93 days.

2) for 91 days calculation: But I'm also in UK on these 2 days (i.e. 11th November 2008 and 11 February 2009). Why because, on 11th November, I left UK and have reached India. So as per the law I was on UK land on 11th November 2008. (becuase of short time difference I reach to India on the same day itself.) Also, I've arrived to UK on 11th February 2009. (the UK immigration officer stamped that I've entered UK on 11th February 2009) Which means you should not count this day as away from UK although the immigration officer in India stamped my exit stamp on 11th February 2009. Thats why I've calculated it as 91 days.

But in total 4 years, I'm away from UK in total less than 180 days (i.e. 179 days) only.

I heard from a solicitor that I should not be away from UK for not more than 91 days (i.e. 3months).

With the 2nd way of calculation I'm out of UK for 91 days only so the PEO will not object my ILR.

But If the PEO calculates as per the 1st rule, then he might give me problems. Then I don't know the outcome and I need to know how I can justify my case.

So my question is how does the PEO count the total number of days I'm away. Will my case have a strong point to win the ILR at all?

Apart from this, I'm a freelance Software Consultant and had to work in Paris (for approx. 2 months), Sweden (for approx. 2 months) and in Germany (for approx. 6 months) between 2007 - 2008 although I've paid the taxes in UK as I've my own umbrella company was setup in Feb 2007 and I've UK Business Account where all the money was paid. I've even filed TAX returns for 2007-2008 (first year) and 2008-2009(second year returns) as well.

My question is, does PEO object my ILR application as I'm away from UK for long periods either holidays or on business trips??

Thanks in Advance for your time in reading my case.

Your prompt answers will be much appreciated indeed!

Best Regards!