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Indefinite leave to remain new guidance in relation to calculating continuous period in UK

Please see the below explanatory notes regarding the new calculation of continuous period in the UK in cases of indefinite leave to remain. It is an attempt to clarify the new guidance for UK Border Agency staff. Please refer to the main guidance itself, which can be found at our webiste, for further in-depth coverage of a point.

The following will be explaining how to calculate the qualifying period in the UK for indefinite leave to remain (known as settlement) in the working categories. Please note that some of these routes are now closed for entry or extension of leave. In order to be able to obtain indefinite leave to remain, the Immigration Rules require applicants to have spent a continuous period in the UK where they are:

- A work permit holder (Paragraph 134)

- A representative of an overseas newspaper, news agency or broadcasting organisation (paragraph 242)

- A sole representative (ILR now in the representative of an overseas business category- Paragraph 150)

- A private servant in diplomatic households (Paragraph 158)

-An employee of overseas governments (except those exempt from control) or the UN or other international organisation of which the UK is a member (Paragraph 167)

- A minister of religion, missionary or member of a religious order (paragraph 176)

- An airport-based operational staff of overseas-owned airlines (paragraph 184)

- On the basis of UK ancestry (paragraph 192)

- A business person (paragraph 209)

- An innovator or entrepreneur (paragraph 210G)

- An investor (paragraph 230)

- A writer, composer or artist (paragraph 238)

- A retired person of independent means (paragraph 269)

- A highly-skilled migrant programme (paragraph 245E-F)

- in the following sub-categories of the points-based system (relevant paragraphs of part 6A):

- all of Tier 1 except post-study workers

- all of Tier 2 except Intra-company transfers (ICT) granted under the Rules in place from 6 April 2010

- Tier 5 (International agreement)- private servants in diplomatic households only

The guidance allows UK Border Agency staff, for calculation purposes, to ignore short absences abroad where it is clear that the applicant has continued to be based in the UK. It is stated that examples of such an absence may be:

- Holiday consistent with annual paid leave entitlements

- Business trips consistent with maintaining employment or self-employed in the UK

Tier 2 migrants

Under the guidance, for such applicants, the period between grant of entry clearance and date the migrant entered the UK can be counted towards the five year period as long as it is no longer than three months.

Discretion (in cases where continuous residence has been broken)

Periods may be added, in exceptional circumstances, in order to form unbroken continuous residence in cases where:

- There have been nonbsences abroad (except those mentioned above) and authorised employment or business has not been broken by:

- A single interruption of more than three months or;

- Interruptions that are more than six months in total

- There have been significant absences abroad however they were a result of:

- Compelling reasons ones of a compassionate nature or;

- Related to the applicant's employment or business in the UK

- A single absence abroad cannot be more than three months at a time and must not total more than six months

Decisions: Only staff members that are at the appropriate grade have the decision to apply discretion. The guidance states that an HEO or above must decide whether to allow discretion where breaks in residence come under the above mentioned exceptional circumstances and an SEO or grade 7 member of staff must decide whether to allow discretion if breaks in residence and/or employment or self-employment are longer than the above or of a different type

About the author: For further information on how to apply or to discuss whether you are eligible, please contact one of our lawyers on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk .


Source: http://www.articlesbase.com/immigration-articles/indefinite-leave-to-remain-new-guidance-in-relation-to-calculating-continuous-period-in-uk-4181855.html

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