ILR Qualifying period-allowed absent abroad

Haris Khan made this Freedom of Information request to UK Border Agency

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Dear UK Border Agency,
I have confusion in understanding the calculation of qualifying period for ILR especially the allowed absence abroad.

Guidance – ILR – calculating continuous period in the UK – V 5.0, Valid from 19 July 2012.According to this guidance,
Other qualifying categories:
When assessing if an applicant has met the criteria for five years continuous period in the UK, short absences abroad may be disregarded, provided the applicant has clearly continued to be based in the UK. For example:
• holidays (consistent with annual paid leave), or
• short business trips (consistent with maintaining employment or self-employment in the UK).
If total of all absences exceed 180 days over the five year period, continuity will be broken.

Whereas IMMIGRATION DIRECTORATE INSTRUCTIONS on UKBA home page states,

2. All other Tier 1 Applications
The specified period of continuous leave for all other Tier 1 applications is 5 years.

2.1 Calculation of the five year period for settlement
When assessing if an applicant has met the criteria for 5 years continuous residence in the UK, short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the UK), may be disregarded, provided the applicant has clearly continued to be based here.

2.2 Applications that fall short of the five year continuous period
In some cases, applicants may have been granted 5 years continuous leave, but will not have spent 5 years continuously in the UK before their current leave expires. Caseworkers may count the period between entry clearance being granted and the date the applicant entered the UK towards the 5 years, provided this period was not longer than 3 months.

2.3 Discretion in cases where continuous residence has been broken,
Time spent here may exceptionally be aggregated, and continuity not insisted upon, for cases where:
• there have been no absences abroad (apart from those described in paragraph 2.1 above) and authorised employment or business here has not been broken by any interruptions of more than three months or amounting to more than six months in total for the whole five year period. Decisions in such cases must be taken at HEO level or above.

or
• there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant’s employment or business in the United Kingdom. Where continuous residence has been broken, periods may be aggregated or shortfalls disregarded only with the approval of an SEO or Grade 7.

According to my understanding both policy statement differ from each other, My understanding is that

“Guidance – ILR – calculating continuous period in the UK says that maximum 180 days absence abroad is allowed whether it is annual paid holiday or employment related visits”.
In a way one is not allowed more than 180 days paid holidays abroad in 5 years. Whereas

“Immigration directorate instructions says short absences abroad, for example for holidays (consistent with annual paid leave) or business trips (consistent with maintaining employment or self-employment in the UK), may be disregarded, provided the applicant has clearly continued to be based here”. It does not put an upper limit of 180 days here according to my understanding.

My questions are

1- Do you agree with my observation that these two policy differ from each other, if not can you kindly explain it in a more simple way for better understanding.

2- Is this 180 days absence abroad rule applies even if an employee is allowed 50-60 days paid holiday per year (250-300 days in 5 years) which is very common for doctors working in NHS.

3- Do all the applicants are allowed to apply 28 days before the 5th anniversary of their qualifying period, even if they are counting the start date from date of entry clearance rather than date of entry, if interval in between them is less than 90 days?

I will be grateful if you can kindly clarify my requests.

Thanks and kind regards.

Haris Khan

IND Public Enquiries,

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5. Students - Changes During Your Stay

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6. Family of British and Settled Persons

A number of changes to the Immigration Rules come into effect on 9 July 2012. These changes will affect non-European Economic Area (non-EEA) nationals applying to enter or remain in the UK under the family migration route.
These changes will define the basis on which a person can enter or remain in the UK on the basis of their family or private life, unifying consideration under the rules and Article 8 of the European Convention on Human Rights.
If you already have leave to enter or remain in the UK, on the basis of being the spouse or partner of a settled person, you will need to meet the rules which were in force before 9 July 2012 if you apply for settlement.
The changes include:
* introducing a new minimum income threshold of £18,600 for sponsoring the settlement in the UK of a spouse or partner, or fiancé(e) or proposed civil partner of non-European Economic Area (EEA) nationality, with a higher threshold for any children also sponsored; £22,400 for one child and an additional £2,400 for each further child;
* extending the minimum probationary period for settlement for non-EEA spouses and partners from two years to five years, to test the genuineness of the relationship;
* abolishing immediate settlement for the migrant spouses and partner where a couple have been living together overseas for at least 4 years, and requiring them to complete a 5 year probationary period;
* from October 2013, requiring all applicants for settlement to pass the Life in the UK Test and present an English language speaking and listening qualification at B1 level or above of the Common European Framework of Reference for Languages unless they are exempt; and
Detailed information about changes to the family migration rules that came into effect on 9 July 2012 can be found on the UK Border Agency website at:
http://www.ukba.homeoffice.gov.uk/siteco...
Detailed information about how you can apply to remain in the UK if you are the partner, dependent child or adult dependent relative of a British citizen, a person who is settled, has refugee leave or humanitarian protection here can be found on the UK Border Agency website at:
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You will be required to prove your English language ability, if you are applying as the husband, wife or civil partner of a British citizen or someone who is settled here.
This information is based on Part 8 of the Immigration Rules.
For details of the English language requirement, see the English language requirement page.

For further information, please visit the UK Border Agency website at:

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7. UK Ancestry

Detailed information about UK Ancestry can be found on the UK Border Agency website at:

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8. Child born in the UK
If your child was born in the UK and you currently have limited leave to remain, you will need to obtain and complete one of the following application forms, in order for them to be granted leave to remain as your dependant.

PBS Dependant application form should be used if the person whom the child is dependant on has been granted leave to remain under the Points Based System.

FLR(O) application form should be used if the person whom the child is dependant on has been granted leave to remain in any other category.

On form FLR(O) the child's details should be entered in Section 1 - Applicant's Details. Your passport should also be enclosed with the application.

If you will be leaving the UK and do not intend to return under the conditions of your current leave to remain, you are not required to make an application to the UK Border Agency for your baby. They are deemed to have leave to remain in the UK until you leave.

If you will be making an application for further leave to remain or indefinite leave to remain and do not intend to travel before you do so, you can include the baby as your dependant at that time. However please note, if you travel outside the UK before your baby obtains leave to remain, you will need to obtain Entry Clearance for the baby before you return to the UK.

9. Settlement - Knowledge of Language and Life in the UK

If you are applying for settlement in the United Kingdom you may be required to demonstrate Knowledge of Language and Life in the United Kingdom, in addition to meeting the other requirements for settlement. For further information, please visit the UK Border Agency website at:

http://www.ukba.homeoffice.gov.uk/visas-...

10. Indefinite Leave to Enter

In terms of your status in the UK, Indefinite Leave to Enter and Indefinite Leave to Remain are exactly the same. The Indefinite Leave to Enter Entry Clearance means, in terms of your current immigration status in the UK, that there is no time limit on your stay in the UK.
The end date shown on an Indefinite Leave to Enter Entry Clearance (EC) vignette is a guide to the holder for travel purposes only, or relates to the validity dates of the passport/travel document in which the vignette is endorsed.
The validity and activation of the Entry Clearance is determined by the dates noted on the Entry Clearance vignette not by any ink stamp endorsed in the passport or travel document by a UK Immigration Officer at the port of entry.
The Immigration Officer's stamp merely indicates when the Entry Clearance was used to enter the UK but the Entry Clearance is still valid without an on-entry stamp.
The Entry Clearance should be used to enter the UK within three months of issue but can be used after this date at the discretion of the Immigration Officer.
Once the expiry date noted on your EC is passed it is not necessary for the holder of Indefinite Leave to Enter status to apply within the UK for Indefinite Leave to remain status as they are effectively the same thing and your "No time limit "status remains extant.


11. New Passport - Transfer of Conditions or No Time Limit

Detailed information about transferring your visa or residence permit from an old passport or travel document to a new one can be found on the UK Border Agency website at:

http://www.ukba.homeoffice.gov.uk/visas-...

12. Reporting an immigration offence

We take public reports of crime seriously. If you suspect that someone is working illegally, has no right to be in the UK or is involved in smuggling, we want to hear from you.
You can report your suspicions in confidence using our reporting form.
Please complete as much of the form as you can. But do not worry if you cannot answer all of the questions - and do not put yourself in danger by trying to discover more information.
Any information that you provide will be handled in confidence. You can give us your name and address if you wish, but you do not need to do so.
Other reporting methods

Alternatively, you can:
* contact Crimestoppers (online or by phone) anonymously
* call the Customs Hotline about smuggling on 0800 595 000
* contact the confidential anti-terrorist hotline on 0800 789 321 or online
* dial 999 in an emergency

Detailed information how you can report suspected immigration crime (such as illegal immigration or illegally employing foreign workers), smuggling or terrorism can be found on the UK Border Agency website at:

http://www.ukba.homeoffice.gov.uk/aboutu...

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Dear IND Public Enquiries,

Dear Sir/Madam,
Thanks for your reply, in fact I have gone through your website very thoroughly and I asked few specific questions for which I did not get clear answers. I will be grateful if you kindly address my specific questions.
Thanks

Yours sincerely,

Haris Khan