180 days absence due to employment

[rams9898]

Hi All,

I got my first entry under Tier 2 General in July 2015 and planning to apply for ILR in Aug 2020. My SOC code is 2136 and my salary was below 35600. My code was not in the shortage occupation list until 2019 and am I exempt from minimum salary requirements? Because my code is currently in the shortage occupation list.

When I spoke to my solicitor, he was not much sure about the exemption can be applied only based on the current shortage occupation list. When I checked the Immigration rules I was bit confused about the wordings. Do we need to meet all the three conditions or any one of the condition mentioned in the immigration rules part 6A under paragraph 245HF (f)?

https://www.gov.uk/guidance/immigration ... sed-system

(f) Sub-paragraph (d)(vi) above does not apply if the Certificate of Sponsorship which led to the applicant’s most recent grant of leave was for a job which:
(i) appears on the list of PhD-level occupation codes as stated in the codes of practice in Appendix J,
(ii) appears on the Shortage Occupation List in Appendix K,
(iii) previously appeared on the Shortage Occupation List, as shown by Tables 3 and 4 in Appendix K, at any time when the applicant:
(1) had leave as a Tier 2 (General) Migrant, in which they were sponsored for the applicable job, either with the same or a different employer, during the continuous 6-year period ending on the date of application for indefinite leave to remain, or
(2) was assigned a Certificate of Sponsorship for that job, either with the same or a different employer, which led to a grant of leave as a Tier 2 (General) Migrant during the continuous 6-year period ending on the date of application for indefinite leave to remain.

Thanks,
Ram

[gc362952246]

Hi All,

I got my first entry under Tier 2 General in July 2015 and planning to apply for ILR in Aug 2020. My SOC code is 2136 and my salary was below 35600. My code was not in the shortage occupation list until 2019 and am I exempt from minimum salary requirements? Because my code is currently in the shortage occupation list.

When I spoke to my solicitor, he was not much sure about the exemption can be applied only based on the current shortage occupation list. When I checked the Immigration rules I was bit confused about the wordings. Do we need to meet all the three conditions or any one of the condition mentioned in the immigration rules part 6A under paragraph 245HF (f)?

https://www.gov.uk/guidance/immigration ... sed-system

(f) Sub-paragraph (d)(vi) above does not apply if the Certificate of Sponsorship which led to the applicant’s most recent grant of leave was for a job which:
(i) appears on the list of PhD-level occupation codes as stated in the codes of practice in Appendix J,
(ii) appears on the Shortage Occupation List in Appendix K,
(iii) previously appeared on the Shortage Occupation List, as shown by Tables 3 and 4 in Appendix K, at any time when the applicant:
(1) had leave as a Tier 2 (General) Migrant, in which they were sponsored for the applicable job, either with the same or a different employer, during the continuous 6-year period ending on the date of application for indefinite leave to remain, or
(2) was assigned a Certificate of Sponsorship for that job, either with the same or a different employer, which led to a grant of leave as a Tier 2 (General) Migrant during the continuous 6-year period ending on the date of application for indefinite leave to remain.

Thanks,
Ram

I have a similar situation with you and my solicitor told me I should be OK.

He replied to me in March and quoted the same rule (Paragraph 245HF of the Immigration Rules)

He has one more line before that section: The pay in (c)(ii)(2) or (3) above must:


In your case, SOC Code 2431 appears on the current Shortage Occupation List. As such, the requirement to be paid £36,200 per annum is waived. You only need to be paid the minimum salary amount under SOC Code 2431 which is £33,200 per annum. Your salary exceeds this amount.

[zimba]

If you were assigned a SOC and anytime during the continuous 6-year period (ending on the date of application for indefinite leave to remain) your SOC ever appeared on the shortage list, then you are exempt from the min salary threshold requirement

[rams9898]

Thanks gc362952246 & Zimba for the clarification!

@Zimba Again my confusion is about the combination. I am concerned on the reply "If you were assigned a SOC and ..." because when my COS is assigned I was not in the shortage occupation list.

[gc362952246]

Thanks gc362952246 & Zimba for the clarification!

@Zimba Again my confusion is about the combination. I am concerned on the reply "If you were assigned a SOC and ..." because when my COS is assigned I was not in the shortage occupation list.

Hi
I have the same concern and my job was not shortage in2017 when I got the current visa. It was listed last year. I think it is not an issue after reading the paragraph again. My salary sits below 36200 and above the shortage requirement. I have submitted my application in June already and waiting for the result. I can keep you updated once I got my result (might need to wait for a bit)

[rams9898]

Thanks a lot gc362952246!

[zimba]

If you were assigned a SOC and anytime during the continuous 6-year period (ending on the date of application for indefinite leave to remain) your SOC ever appeared on the shortage list, then you are exempt from the min salary threshold requirement

[rams9898]

Thanks Zimba for further clarification.

[rams9898]

Hi All,

I am preparing my ILR application and struck on the 180 days absence rule. I am planning to apply on July 23rd 2020 and I have 2 leaves granted. First one from 23rd July 2015 to 13th August 2018 and the second one from 27th Aug 2018 to 27th Aug 2021. I went abroad for working for my same sponsor during the 3rd year of first leave granted and the same year my absence was more than 180 days.

As per the guidance:

Absences due to employment, whether related to the applicant’s job in the UK or not, count towards the 180 day maximum each year.

My Absences:

Year 1(July 23, 2016 to July 22, 2016) - 108 Days
Year 2(July 23, 2016 to July 22, 2017) - 33 Days
Year 3(July 23, 2017 to July 22, 2018) - 206 Days(out of this 150 days towards employment and remaining is my vacation)
Year 4 & 5 - 23 Days in total

My questions are:
1. If we worked abroad for the same sponsor and got paid in UK, will it count towards the 180 days?
2. Can we provide any document to justify the absence as authorised form the employer?

Thanks
Ram

[CR001]

1. All absences count towards the 180 days limit, regardless of where you got paid, as the guidance you quote clearly states.

2. Not really that would help your case.

[zimba]

The 180 days rule applies regardless of whether you worked for your employer or not.

[rams9898]

Thanks CR001 and Zimba for quick response.
Does the date of application will have any impact? If I apply Nov 1st I can split the year like below which is within limits. Any help will be appreciated very much.

If the applicant’s qualifying period includes leave granted before this date, any absences during that leave will be considered under the previous rules – in separate 12-month periods ending on the date of application.

Year 1(Jul 23, 2015 to October 31, 2015) - 53 Days
Year 1(Nov 1, 2015 to October 31, 2016) - 55 Days
Year 2(Nov 1, 2016 to October 31, 2017)- 64 Days
Year 3(Nov 1, 2017 to October 31, 2018) - 175 Days

Thanks
Ram

[zimba]

When was your last visa granted ?!

[rams9898]

My last visa was granted on Aug 27th 2018 for 3 years.

[zimba]

My last visa was granted on Aug 27th 2018 for 3 years.

As you had a visa granted after 11 Jan 2018, any absences in that visa period (after Aug 27th 2018) will be evaluated on a rolling basis.
Absences before Aug 27th 2018 will be evaluated in the old way using 12 month fixed months. The 12 month period will be determined based on your ILR application date. For example, you apply for settlement on 10 August 2020.

You should view this as two steps:

STEP 1: You need to create separate fixed separate 12 month periods, each ending on 10 August. The 180 days limit applies in each of the 12 months periods below.

11 August 2015 to 10 August 2016
11 August 2016 to 10 August 2017
11 August 2017 to 10 August 2018
11 August 2018 to 10 August 2019 (count absences ONLY UNTIL 26 August 2018)

STEP 2: From Aug 27th 2018 onwards, absences should be considered on a rolling basis. This means you should NOT have more than 180 days in ANY consecutive 12 month period from this date onwards.

[rams9898]

Thanks Zimba for a very clear reply.