Absences of more than 180 days for work reasons

[Wizard33]

Hi there

The rule on exceeding 180 days absences in a 12 month period when applying for ILR explains that exceptions are only made on the basis of serious compassionate grounds. I also read on a FAQ here that absences in excess of 180 days in any 12 month period for employment or economic activity reasons are not considered exceptional.

I work for a global firm and went back home, working for the same company, for more than 180 days (approx 230). My employer is willing to state that I was overseas for critical business reasons and that I remained employed with them. They can also produce a summary of earnings which is over the threshold. When speaking to some lawyers, a couple have indicated that I am still unlikely to get ILR, whilst a couple said there was still a very good chance, including one who said that they had got ILR for someone who went on a 16 month sabbatical. Does anyone know of any successful ILR applications even when the absence has been over 180 days?

Many thanks
John

[cs95tdg]

"absences in excess of 180 days in any 12 month period for employment or economic activity reasons are not considered exceptional."
The above statement isn't quite accurate due to the way your annual absences are calculated. Your annual absences (threshold) are counted backward from your ILR application date.

So if your 230 days of absence spans across multiple years (because of the date of your application), then you may still meet the 180 day annual threshold. Please see Q17: http://www.immigrationboards.com/viewtopic.php?t=79378
And also page 9: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Another key point to bear in mind would be the immigration category you are applying for ILR under. For Tier 1 General Migrants there is no requirement that you need to be employed throughout the entire 5 year residence period, so sabbatical leave would be acceptable, so long as the absences were within the allowed theshold. However it would not be so, if applying as a WP Holder or T2 Migrant which are employer sponsored immigration categories.

[db83]

Hi there

The rule on exceeding 180 days absences in a 12 month period when applying for ILR explains that exceptions are only made on the basis of serious compassionate grounds. I also read on a FAQ here that absences in excess of 180 days in any 12 month period for employment or economic activity reasons are not considered exceptional.

I work for a global firm and went back home, working for the same company, for more than 180 days (approx 230). My employer is willing to state that I was overseas for critical business reasons and that I remained employed with them. They can also produce a summary of earnings which is over the threshold. When speaking to some lawyers, a couple have indicated that I am still unlikely to get ILR, whilst a couple said there was still a very good chance, including one who said that they had got ILR for someone who went on a 16 month sabbatical. Does anyone know of any successful ILR applications even when the absence has been over 180 days?

Many thanks
John

Breakdown your absences year by year and your visa status

For example, if the date of application is 11 November 2012, the consecutive periods would
be as follows:
Year 1 11 November 2012 to 10 November 2011
Year 2 11 November 2011 to 10 November 2010
Year 3 11 November 2010 to 10 November 2009
Year 4 11 November 2009 to 10 November 2008
Year 5 11 November 2008 to 10 November 2007

[Wizard33]

I'm on a Tier 2 Work Permit (sponsored by the company). In terms of my absences, if I applied in April it would go something like this

Year 5 (current year) - 80 days
Year 4 - 197 days
Year 3 - 201 days
Year 4 - 53 days
Year 5 - 39 days

The reason that I am over 180 for two years in a row is that my secondment was for 6 months, then another 3 months later on that year.

[db83]

I'm on a Tier 2 Work Permit (sponsored by the company). In terms of my absences, if I applied in April it would go something like this

Year 5 (current year) - 80 days
Year 4 - 197 days
Year 3 - 201 days
Year 4 - 53 days
Year 5 - 39 days

The reason that I am over 180 for two years in a row is that my secondment was for 6 months, then another 3 months later on that year.

when are you planning to apply...put it in the below format

For example, if the date of application is 11 November 2012, the consecutive periods would
be as follows:
Year 1 11 November 2012 to 10 November 2011
Year 2 11 November 2011 to 10 November 2010
Year 3 11 November 2010 to 10 November 2009
Year 4 11 November 2009 to 10 November 2008
Year 5 11 November 2008 to 10 November 2007

[Wizard33]

Date of Application (as an example) 15 April 2013

Year 1 15 April 2013 to 14 April 2012 - 80
Year 2 15 April 2012 to 14 April 2011 - 207
Year 3 15 April 2011 to 14 April 2010 - 196
Year 4 15 April 2010 to 14 April 2009 - 39
Year 5 15 April 2009 to 14 April 2008 - 52

These are best estimates at the moment.

[cs95tdg]

I'm on a Tier 2 Work Permit (sponsored by the company). The reason that I am over 180 for two years in a row is that my secondment was for 6 months, then another 3 months later on that year.

A few questions:
1) When was your WP EC granted?
2) And when does your current LTR expire?
3) Which Tier 2 immigration category(s) make up your 5 year residence period? E.g. T2 General, Tier 2 ICT, WP etc...
4) Were you paid in the UK during those long absence periods?
5) Was your original employer sponsored leave to remain (WP or T2) curtailed when you left the UK at any point, resulting in you having to obtain new EC when returning after any of those absences?

[Wizard33]

Hi there

Answers to your questions:

1) First WP granted in Nov 2007 for one year. I was originally on a contract when I came here. Was made permanent after a few months so then they "refreshed" my WP to have it run for 5 years from Sept 2008 to Sept 2013
2) Sept 2013
3) I'm not sure if I'm T2 General or T2 ICT. I worked for the same country abroad so I might have come here on T2ICT but it doesn't say on my work permit.
4) I was paid in the UK for some of the absences but not all. For the first stint I was paid in the country that I went on secondment to because it was 6 months, but when I came back I was paid on the UK payroll (for the second stint I remained on UK payroll but paid some taxes abroad).
5) No. I changed roles at one point and they notified UKBA who gave approval to the change (though this was all done later than when I changed roles).

[db83]

Date of Application (as an example) 15 April 2013

Year 1 15 April 2013 to 14 April 2012 - 80
Year 2 15 April 2012 to 14 April 2011 - 207
Year 3 15 April 2011 to 14 April 2010 - 196
Year 4 15 April 2010 to 14 April 2009 - 39
Year 5 15 April 2009 to 14 April 2008 - 52

These are best estimates at the moment.

Year 2 and 3 have exceeded the 180 day rule. Although you were paid during this period, what counts ultimately is the days outside UK. It looks difficult for me because the correspondence from ukba says 180 is the ultimatum unless its compelling or compassionate.

Lets wait and see what cs95tdg has to say ?

[ilrlondon]

If you are working in same company during the gaps, and shows the absense letter then there is no problem ?

Guru's please

[cs95tdg]

OP, I'd suggest you find out which specific immigration category you are in the UK under now, as you will need to know this to understand the specific immigration rules that apply to you when applying for ILR.

While there are many employer sponsored immigration categories, some have different immigration rules associated with them. I.e. a Work Permit is different to Tier 2 General, which is again different to Tier 2 ICT (which again has several sub-categories). Additionally residence periods under certain immigration categories can be accumulated to form the 5 years residence for ILR, but not all can - So it's important that you know what your current immigration status is.

That said, looking at your absence breakdown now, it does appear that you would not meet the absence threshold during the second and third years. This is irrespective of the fact that you may not have met the terms of your employers sponsorship - due to not being paid in the UK.

Note that there is no longer any discretion allowed for business/employment related absences (as was the case before Dec 13th 2012) that exceed the 180 day annual threshold.

[db83]

If you are working in same company during the gaps, and shows the absense letter then there is no problem ?

Guru's please

Even there is an absence letter, days outside UK should not exceed 180 days in any consecutive 12 month period preceding the date of application.

[ilrlondon]

this is reply from Settlement Ops Policy Mailbox automail

Q. My absences exceeded the 180 day limit in one year of my consecutive period, can this be disregarded if my employer provides evidence that it was essential to the business?

A. No. There can be no discretion applied to any absence exceeding 180 days in any of the consecutive 12 month periods of the continuous period.

[db83]

this is reply from Settlement Ops Policy Mailbox automail

Q. My absences exceeded the 180 day limit in one year of my consecutive period, can this be disregarded if my employer provides evidence that it was essential to the business?

A. No. There can be no discretion applied to any absence exceeding 180 days in any of the consecutive 12 month periods of the continuous period.

That's what I meant my friend. Absence more than 180 days is not dis regarded even if you have a letter

[db83]

this is reply from Settlement Ops Policy Mailbox automail

Q. My absences exceeded the 180 day limit in one year of my consecutive period, can this be disregarded if my employer provides evidence that it was essential to the business?

A. No. There can be no discretion applied to any absence exceeding 180 days in any of the consecutive 12 month periods of the continuous period.

That's what I meant my friend. Absence more than 180 days is not dis regarded even if you have a letter

If there is a continuous absence of 200 days and if this spreads across two consecutive 12 month period and thereby reducing the absence of one 12 month period to <180 days.... then that's fine. I recently got my ILR Under this condition

[Wizard33]

Thanks all for your help. To be honest, my case feels unlikely to succeed though I will check my tier 2 status as suggested. If I fail to get ILR because of these absences, will that have any impact on being able to get a Tier2 extension when my current Tier2 runs out in Sept?

[cs95tdg]

If I fail to get ILR because of these absences, will that have any impact on being able to get a Tier2 extension when my current Tier2 runs out in Sept?

No. They are independent of each other.

[uk_2010]

I have read through this posts.

I have situation where I have two long one streach absences (235 days each time) but if I apply on 20th Mar'13 and calculate back as explained for each year, these absences are spanning across two different years and hence doesn't exceed 180days quota of an year. Will that be all right in my case for ILR?

I will obtain letter from my employer that I was away for employment reasons just incase. I was paid in country where I was working during this period by same employer.

To explain further, Assuming that I apply 20 March my absences though long at one streach it spans out like below...
Year 5 - 59 days
Year 4 - 170 days
Year 3 - 133 days
Year 2 - 108 days
Year 1 - 15 days

Your prompt response would help me apply my ILR asap.
Appreciate your help.

regards

[uksettlement]

Yes uk_2010.

[prashanth.mamidi]

@uk_2010, Have you got the ILR with these absences?