ILR Continuous-Residency Absences - Entry/Exit Tracking

[dvinas]

Ok, I've just discovered that I may be over the 180-day limit for absences in the 5-year qualifying period for my ILR. (I am applying in December in-person at the PEO.) The problem is, it's difficult to piece together the dates of all my travel during that period. My entry stamps are scattered across two passports, some are missing, others are a bit blurry. I've put everything into a spreadsheet, and I come up to, I believe, 182 days outside the UK. (Yes, I'm only counting whole-day absences, not the actual entry/exit days.) However, that includes a couple of trips for which there is no evidence whatsoever in my passport - I had to track it down via itinerary emails from the airlines.

So, does anybody happen to know:

1) What will UKBA themselves use to count my days of absence? (ie. are they just going to take my word for it, or possibly look in my passport?)

2) Do they even have complete entry/exit data for me, or is it largely based on entry, when they scan my passport?

3) If I suspect that I took a trip around a certain time, but can't find any evidence (including no stamp in my passport), would I be ok to omit this?

4) Althought the new guidance (http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary) indicates a 180-day maximum for absences, the actual SET(O) application uses the term "6 months." Since 6 months is technically 182-183 days, would I not be accurate in saying I haven't exceeded 6 months' absence?

What I'm obviously leading up to is that I am not even certain of a couple of trips myself, and, given the low probability of good records kept of my exits (where my passport isn't even scanned), it's almost my word against theirs. Also, I think my application would stand a greater chance of approval if I could tick the "No absences > 6 months" box. If I tick "Yes" and supply documentation, it needs a supervisor's approval. Hence, I'd prefer not to include trips that they don't even know about (and, indeed, I can't accurately remember).

Any help appreciated!

[mcove]

Also, I think my application would stand a greater chance of approval if I could tick the "No absences > 6 months" box. If I tick "Yes" and supply documentation, it needs a supervisor's approval. Hence, I'd prefer not to include trips that they don't even know about (and, indeed, I can't accurately remember).

Any help appreciated!

Are you sure you are using the right form?
Page 13 of the application form Set (O).
6.2. Since then (date of first entry) have you had any absences from the UK?
I can't find where it is asking to tick Yes or No for absences > 6 months.

[p2kin]

However, that includes a couple of trips for which there is no evidence whatsoever in my passport - I had to track it down via itinerary emails from the airlines.

Unless these trips are to channel islands (where there is no immigration control), you MUST HAVE evidence in your passport (as a stamp).. otherwise it seems like entered illegally...

UKBA has records for everyone's entry... you can request for SAR record for you.. it usually takes around 40 days.. if you request it right away.. you should get it by mid Nov.. & that should help you...

[katya_s]

4) Althought the new guidance (http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary) indicates a 180-day maximum for absences, the actual SET(O) application uses the term "6 months." Since 6 months is technically 182-183 days, would I not be accurate in saying I haven't exceeded 6 months' absence?

I realise it's a different category but in the staff guidance for long residence ILR there is a specific statement that for purposes of calculation of absences a month is made up of 30 calendar days (page 16) http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[dvinas]

@mcove: I'm using the latest SET(O) version 7/2012. At the bottom of page 24, under the part of section 9 relating to Tier 1 visa holders, there is the following question:

D2: Please confirm whether you have been outside of the UK for any single absence over 3 months or one or more absences which amount to more than 6 months in total during the 5 year period: Yes (Go to D3) No (Go to E)

In question D3, it asks you to explain any absences over the limits.

@p2kin: Some of my trips were to my home (U.S.), where it seems they didn't always stamp my passport upon entry (and never do upon exit). I also re-entered the UK using the IRIS eye scanner, so I didn't talk to an immigration agent or get a stamp. So there are a few trips that don't appear anywhere in my passports. It's possibe they could look in their database and see if I've entered, but I don't think they'd know when I left. This is what I would like to confirm.

@katya_s: Thank you. It's helpful to know that they have a rule-of-thumb. I still believe that, in a court of law, one could make the argument that 6 months is 180 days, because they don't specify this in the application itself, or in the guidance available to the applicant. Merely placing this in a document which is aimed at the caseworker should not be enough.

[wpilr_nov12]

dvinas,

It would be in your best interest to give as much detail as possible on your application. Failure to disclose may come back to haunt you. It is about you getting ILR, not about whether you or UKBA can or cannot prove anything, that is more important.

Having said that, maybe including a disclaimer, via an additional paragraph on your self-produced absence summary sheet, stating that some dates are based on your best guesses as your passport was not stamped on exit/entry, or that you cannot honestly recall the exact dates/days in which case some dates might have been ommitted.

Good luck.

[dvinas]

Thank you very much for the advice. I should have mentioned, in response to @p2kin, that I submitted a SAR request on 01-Oct to UKBA, in order to ascertain what data they have on file with regard to my absences. I should have that back by mid-November, at which time I'll post a follow-up here. That information will probably affect how I proceed, so I still haven't completely decided. I do like the idea of submitting a disclaimer, and had planned to add something of that nature in my cover letter.

I am probably making a big issue out of nothing here, but it is never a good feeling not to have 100% certainty regarding one's application for ILR.

[dvinas]

UPDATE: I spoke at length this morning with an immigration lawyer, who was highly recommended by a friend who also had issues with his ILR application. He made the following points, which I thought might be of use to readers of this thread:

1) UKBA generally, by default, goes by the information in the passport for purposes of calculating/verifying absences. They do not have access to IRIS data while processing an application.

2) A SAR request will only generally return data maintained in the IRIS database, so that's all I'm likely to get back from UKBA. (In my case, I did use IRIS for quite a while after first arriving, so we shall see.)

3) UKBA *does* exclude annual leave and business trips from the calculation of absences. (I did bring up the latest changes to the guidance, but he said the guidance is not the final word. They still use discretion, and are only beholden to the immigration law at the end of the day.)

4) As a self-employed contractor under Tier 1 (General), I am not technically entitled to annual leave. However, they have previously made the case to UKBA that self-employed persons should be entitled to the equivalent number of days each year as if they were fully-employed.

Again, I am only reporting what I've been told by the lawyer. Point #4 creates a bit of a grey area for me, since I am now not certain how they will view my "absences" (ie. holidays outside of UK). This is no worse than the situation as I previously understood it, but I had a brief hope that I would be able to exclude all of my time abroad.

Given my personal circumstances, I am strongly considering instructing this immigration law firm to handle my case. My primary concern is not slipping up in preparing my application correctly, given certain personal constraints. A secondary concern is that it may prove very difficult to get a suitable appointment with the PEO. The law firm has appointment slots allocated to them, so I'd be guaranteed an appointment in the time-frame I need.

I'll be back to document my progress as it pertains to this thread.

[jseah]

Hi dvinas, which immigration lawyer are you using?

[cheersmate]

I have the similar situation absence exceeds 180 days, In 2011 year alone spent 7 months in row for maternity leave India visa expiring in Jan 2012.

[dvinas]

Update: I met with my lawyer this morning, and he confirmed that UKBA generally only goes by the stamps in your passport, to confirm any absences. Of course, this information is often woefully incomplete. You could, conceivably, submit whatever dates you can remember, based on what is in your passport. However, he was careful to point out that if you are aware of any trips that aren't in your passport, and you willfully submit inaccurate information, you are committing fraud.

He also said that if you receive the results of a Subject Access Request (SAR) from UKBA, you must, legally, include that information in your application. As previously mentioned, the SAR data is likely only to include any use of the IRIS barrier, and possibly the new electronic border for users with biometric passports. (The latter is currently restricted to EU citizens, but will later open to US and Commonwealth citizens, I believe.) If you used IRIS to cross the border into the UK, you would not have a stamp in your passport. However, knowing about this trip as the result of a SAR would mean you would be required to disclose it in your application.

So... since I've made a SAR, I'll have to see what comes out of it. I have a sneaking feeling I might have made a trip or two that I can't remember, and didn't put in my diary back in 2008. I've been unable to find other evidence, and the absences I currently know about total less than 180 days. My main worry is if the SAR comes back with something that would force me over the 180-day limit. However, although UKBA technically have 40 days to respond to a SAR, my lawyer says they are currently taking 3-6 months to process them, so I'm unlikely to actually get the results before my appointment. For now, I'm going with what I know for certain, and put in my cover letter that "this is to the best of my knowledge."

@jseah: I believe it violates the terms of this forum to post the name of my lawyer. I can message you privately, though.

@cheersmate: From what I know, you will have issues with any absence of over 3 months, but UKBA can make exceptions on compassionate grounds, for which your situation might qualify. I would contact a lawyer for sure. You can often speak to them by phone with no charge, and I had all of my questions answered that way.

[dvinas]

Update: I received the results of my Subject Access Request (SAR) at the weekend. It would appear that they honoured the 40-day time limit for requests. Interestingly, they only had on file one boarding card, from my original arrival in the UK, and three electronic arrival/departure records. One of the latter was also from my original arrival in the UK, so it was redundant. The other two were a departure and arrival from a trip I took to the Netherlands in 2011. According to the letter I received, this is all the information they have retained on my comings and goings from the UK. The letter also explained that they have very little retention of data from the e-Borders scheme. Make of this what you will.

[dvinas]

Final Update: Went to my appointment at the PEO, and all went smoothly. The caseworker had no questions about my application. It took longer than other applications, due to the fact that I'm a Tier 1 candidate with a limited company, but in general, the whole process was very smooth.

As an aside: I highly recommend that anyone choosing to apply in person go to Liverpool. Not only are appointments easier to get, but it is nowhere near as busy as Croydon (from what I hear). The place is run very efficiently, and the staff are friendly. Arrive early to beat the queue. Despite the fact that I had a 10am appointment, I arrived at 9am (on the advice of my agent), and there were only a few people ahead of me. They don't seem to mind when your appointment actually is, as long as it's the same day. I was out of there in 2.5 hours, and that's even with the added time to process my more-complicated application. Biometrics took no time at all.

So now I have officially been granted Indefinite Leave to Remain. Best of luck to everyone else. I hope yours goes as smoothly.

[wendywendy]

Hi dvinas , I'm struggling with my ILR application now~do you mind giving me some information of the immigration lawyer did the job for you? As I'm newly registered, I don't think I can send PM or read it…..

[susan0x]

Hi dvinas, I also need the immigration lawer details and need to discuss something from SAR Landing card details.
Thanks

[andycundy]

I'm a in a bit of a pickle here, and while I appreciate you are no immigration expert and guidance might have changed since your application back in 2012, any thoughts from you on my current situation will do me a world of good.

I have lived in the UK since 2006, and have held a Tier General visa since October 2009 which makes me eligible to apply for ILR in October this year. However, I have been working for my UK employer on a primary assignment abroad for the most part of the last 12 months. I spent a total of 162 days outside the UK in 2013, and I have spent a total of 186 days including annual leave (not more than 5 months at a time) outside the UK till date, although the project is completed and I am returning to the UK in a couple of weeks. My salary was paid in the UK during this entire time i.e. I was paying tax in the UK while working abroad.

Obviously the new rule states that employment won't be considered as an exceptional circumstances, I am curious as to what information the the UKBA hold with regards to exit/entry. They only stamp your passport upon entry and it get stamped upon entry at the other end, some of which have genuinely rubbed off or turned blurry that you could barely see the dates. When you applied for your SAR at the UKBA, did it show your exit dates? I'd send you a private message, but I am sort of a newbie on here.

Any thoughts will be appreciated.

[msaeed123]

Interestingly, they only had on file one boarding card, from my original arrival in the UK, and three electronic arrival/departure records. One of the latter was also from my original arrival in the UK, so it was redundant. The other two were a departure and arrival from a trip I took to the Netherlands in 2011.

Hi dvinas, I have a similar situation as you I am applying for ILR on 10 years Long Residency(LR) you may know absence from from the U.K should not be more than 540 days in 10 years (LR) and I have exceeded them I am 68 days more than I should be out of U.K in 10 years and I was thinking to do the same and omit some of my trips or give them some other exit dates from U.K to bring my absence below 540 days I don't have an exit stamp leaving from UK and some of entry stamp of countries I travelled to are completely missing. After reading your threads I am feeling very optimistic about it and I may do same as you and ask for SAR report and change the exit dates which Home office have no clue about. Since you got your SAR report I need to ask you did it show your exit dates from the U.K and could you tell how much of your U.K arrival and departure history they are missing roughly?
Thanks