ILR paid annual leave clarification from Home Office

[ksab]

I made a freedom of information request of the home office:

Dear UK Border Agency,

The guidelines for ILR clearly state that

"The Immigration Rules do not make any provision for absence from
the UK,
however operational practise allows for absence consistent with
paid
leave or work commitments to be disregarded from any assessment of
absence. In addition to this we will permit short breaks of no more
than 3 months in duration for a single absence and six months in
total
throughout the whole of the five years."

However although some people have had absence consistent with paid
annual leave, their applications have been rejected on the basis of
not having spent enough time in the UK for it to be regarded as
continuous. On what basis do caseworkers apply this discretion? In
some cases (reading from various immigration forums) caseworkers
seem to disregard paid annual leave from assessment of absence,
whilst in others they count this as part of the total 6 month
absence permitted. A clarification in this regard would really help
as several people still seem unclear over how caseworkers decide
whether to disregard paid annual leave or not.

Yours faithfully,

K R

Their reply:

Dear KR,


Thank you for your e-mail of to Freedom of Information Team, in which you ask for
clarification of current UK Border Agency guidance for assessing the period of 5 years
continuous lawful residence in United Kingdom. Although your request has been submitted
as a request for information under the Freedom of Information Act 2000, it addresses issues
more related to operational policy as the information you have requested is already
reasonably accessible to you on UKBA website.

The information you require can be found at the following location:

UKBA Modernised Guidance: Indefinite Leave to Remain - Calculating Continuous Period in
the UK

You will note that, within UKBA Modernised Guidance, short business trips and paid annual
leave may be disregarded when calculating the continuous leave period. Breaks of leave
within the UK and other longer absences outside the UK for either compassionate or work
related reasons may be disregarded or aggregated, but these absences must be approved
by a senior officer at either HEO or SEO grade.

In making the decision whether to disregard or aggregate leave, the caseworker must take
into account all of the individual circumstances of a migrants case including the type of
employment, the annual leave in their contract of employment, the reasons and necessity of
short or longer business trips, together with any exceptional and compassionate factors
which may have delayed return to the United Kingdom. In exercising discretion, the
caseworker and senior officer would assess whether this absence would be reasonable on a
case by case basis. To aid the decision making process, it is recommended that migrants
forward all relevant supporting documentation at the time they make their application for
settlement including employer/medical evidence where appropriate.

We have been reviewing the Modernised Guidance to clarify some of the issues that you
have raised. The Settlement Operational Policy Team have recently re-circulated this
guidance to all caseworkers who work on settlement applications, to ensure that any
potential in consistencies are minimized.

The UK Border Agency does not hold any additional instructions or guidance other than that
which has been provided in this reply.

If you have any further queries please feel free to send them direct to
[email address] mailbox. This will ensure that a policy adviser
may deal with any concerns straight away.

I hope this reply clarifies the position for you