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Howard
Howard, Immigration Lawyer
Category: UK Immigration Law
Satisfied Customers: 459
Experience:  Senior Partner with nearly 20 years experience in UK Immigration Law.
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Hello, My question is whether the 180 days permitted absence

Customer Question

Hello,

My question is whether the 180 days permitted absence from the UK (Ancestry visa en route to Indefinite Leave to Remain) is only allowable for work related travel or compassionate reasons, or whether I can use those days for anything I like. I've been employed for three years in the UK, and I'd quite like to take a 3 month trip to thailand (and use the time to study part time on the long distance course I'm taking from LSE), but I of course don't want to compromise my eligibility for ILR. If you could advise that would be very much appreciated.
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  Howard replied 1 year ago.
There is not much guidance given in the rules for settlement based on Ancestry. The reasons for the absence should relate to the purpose of your UK visa. If your visa is considered to have been granted for work purposes then the Home Office could apply the new rule relating to absences, this being that the absences must relate to your employment (allowed holiday entitlement or business travel). If the Home Office did not consider this to be the case then they might apply the old rules (no more than 90 continuous days at any time and 180 days maximum during the 5-year period).

In your case I would be cautious and assume that the second option might apply. To be certain it would require a question being sent to the policy team for a ruling.
Expert:  Howard replied 1 year ago.
Did you make a mistake with the system?
Customer: replied 1 year ago.

Hi, no I didn't make a mistake with the system.

 

I've been looking at UKBA's documents pretty carefully for a while, and had advice from 3 different immigration experts. As far as I am aware there is absolutely no question that the Ancestry visa is a work visa. Which means that there is absolutely no question that it's the 180 days/year rule that's currently applicable.

 

My actual question was whether that 180 days was to be used only for paid annual leave, work related absences, and "compelling reasons" *or* whether the 180 days could be used for anything I liked. aka a 90 day vacation in Thailand.

 

UKBA says that tier 1 investors, entrepreneurs, and exceptional talent can use the 180 days in any way they see fit - no restrictions and no need to explain the absences.

 

They say that for someone in my category absences must be connected to my reason for being in the UK or for serious or compelling reasons. http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/cross-cut/ilr-calculating-continuous/ilr-calculating-continuous.pdf?view=Binary

 

I would like to know what exactly UKBA's statement, "absences must be connected to the applicant's purpose for being in the UK" actually means.

 

I paid for this service thinking that I would get an expert opinion. I wasn't delighted to be advised that "the second option (the old rule about 180 days in 5 years) might apply. This is clearly not the case. I'm not an expert by any means and I know that!!

 

Inaccurate information is particularly frustrating when you want accurate information so much that you paid for it. sigh.

Expert:  Howard replied 1 year ago.

And yet I have known applicants who have had the old rule applied and it has had to be argued, hence my advice to avoid the potential problem if possible. I would certainly not rely on what the Home Office site says, which I expect is why you have come here. In nearly 20 years of specialist experience I doubt there is much I have not seen from the Home Office.

 

Ancestry absence rules are NOT clearly stated, as you seem to be aware. You could take the opinion that Ancestry visas allow the same types of employment and should thus be considered under the same rules as Entrepreneur, etc, but there is nothing in immigration rules or IDIs to confirm this.

 

This is why I advised you to take a cautious approach - far better to do this and be certain of ILR qualification rather than having to argue about it in the future or get caught out. I also advised that a request to the policy team for guidance might be the most efficient way to clear this up.

 

I would be happy to do this but most certainly not where there is that rating in place as it would take some time to do and there is no guarantee that you would like the answer and rate appropriately.

 

Let me know if you would like me to get a definitive answer from the Home Office.

 

In the interests of clarity and answering your question, "absences must be connected to the applicant's purpose for being in the UK" means that the absences must be either business travel required for your job or absences in accordance with your contracted holiday allowance.

Customer: replied 1 year ago.

Really? You've seen applicants in 2013, after the December 2012 changes, have the old rule of 180 days in 5 years applied? That seems pretty odd, especially when's UKBA's own website states clearly that it's now 180 days/year for the Ancestry route.

 

My experience has been that there isn't much clarity on the requirements for the Ancestry route, but it does seem very clear that the 180 day per year rule is in writing on their documents - surely they have to be guided by their own documents?!!

 

I do appreciate your response in the above though, and will change my rating to reflect this.

Expert:  Howard replied 1 year ago.

You seem to be assuming that the Home Office do not make mistakes and the caseworkers are all equally knowledgeable. Good luck with that. I am in the process at present of sorting out a mess created by the Home Office refusing an application after a couple of months on the basis that the applicant used an out of date form - the application was received the day after a new form came out and the Home Office rules are that the old form can be used up to 21 days after expiry. This was an error on the part of the Home Office and the end result is that the applicant is being threatened with deportation, having done absolutely nothing wrong and despite involving his MP. One of countless examples I could quote. Please don't talk to me about the Home Office being infallible.

 

Given that Ancestry absences rules are not clearly stated then you either have to seek clarification as I have suggested or make some assumptions. As the application is made on the same form as Tier 1 and Tier 2 - SET(O) - then the same absence rules should apply. Your question is about the type of absence that is allowed - is it the same as for Entrepreneur (any type of employment) or Tier 2 (employer-based). As your visa is not employer-based then the logical assumption would be that the rules would be the same as for Entrepreneur, etc - pretty much any reason for absences that you want. Nonetheless, this is an educated guess and, although probably correct, it is NOT clearly stated in rules.

 

Again, the only way to be 100% certain is to get a ruling from the policy team.

 

Thank you for your comments about the rating. You might find it easiest to simply rate the most recent answer and it will 'win'.

Howard, Immigration Lawyer
Satisfied Customers: 459
Experience: Senior Partner with nearly 20 years experience in UK Immigration Law.
Howard and other UK Immigration Law Specialists are ready to help you
Customer: replied 1 year ago.

Oh dear god. That's bad news. I am fairly distressed to hear that they are that unreliable. Could you send the question to the policy team? Or I could ask it as a separate question if that would help.


 


Thanks very much

Expert:  Howard replied 1 year ago.

The difficulty here is how entirely vague the rule is in relation to this. We are having to interpret rules based on what is NOT said. For example, page 19 of the following document:

 

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/cross-cut/ilr-calculating-continuous/ilr-calculating-continuous.pdf?view=Binary

 

If we assume UK Ancestry is not mentioned intentionally, which we must do, then we can conclude that the reason for absence does not matter. You will notice that Entrepreneur is not in that list either. I am inclined to take the view that the reason does not matter. The difficulty is the further vague statement that absences for Ancestry must be "connected to the applicant's purpose for being in the UK" - this could be different for every applicant and give a different criteria for every applicant! You see the difficulty with this question?

 

I am happy to send this to the policy team to get some assurance that this conclusion is correct. Perhaps you could rate the other question that I have answered and I will post back here once I get the confirmation (usually within a few days). If you feel inclined at that time then you can always pay a bonus if you wish to do so.

 

How does that sound?

Customer: replied 1 year ago.

Hi,


 


Page 20, however, does mention the Ancestry route. It says that in the Ancestry route absences must be for reasons connected with the applicant's purpose for being in the UK or for serious or compelling reasons.


 


Still confused I'm afraid.

Expert:  Howard replied 1 year ago.
I pressed the button to post my response before I had finished writing - I then edited my response.

I am not surprised you are confused - the wording is far too vague to be useful.

Have another read of my previous response and let me know what you would like to do.

I am still digging through various documents to see if it is clearly stated anywhere but it is not looking hopeful.
Customer: replied 1 year ago.

It all hinges on "purpose for being in the UK", doesn't it. good grief. Have you worked on many Ancestry applications for ILR? Because I'm feeling like the best way to get an indication of what they want here is to look at how they are processing these cases. I think I might post the question again, specifying that I'd like assistance from someone who's worked on a lot of Ancestry specific cases. The guidance in the materials just isn't much good. I've been a model ILR applicant to date - full time employment for three years, one out of country vacation a year on annual leave. I really want to take a three month break and sit on the beach in Thailand, but not willing to compromise my application. sigh.

Expert:  Howard replied 1 year ago.
Thailand sounds like a good idea.

I have had some Ancestry-based ILR applications since the new rules but the new rules simply helped the applicants and most of my applicants are working for Corporate Clients and therefore absences have been work-related. You are unlikely to get anyone with lots of recent experience of applicants with your specific situation. If you find one then you cannot trust the conclusion as it might be wrong but they got lucky - you need volume of specific scenarios to draw a conclusion or Home Office policy confirmation.

I suggest you let me get something from the policy team. It is the best way to resolve this.
Customer: replied 1 year ago.

I would be happy to receive guidance from the policy team. Thanks,

Expert:  Howard replied 1 year ago.
I should have something for you in a few days. Please remember to close the other question by rating the service.
Customer: replied 1 year ago.

Thanks, XXXXX XXXXX closed the other question. Thank goodness that one was a bit more clear cut.


 


I don't fit into either tier 1 or tier 2, do I? this non-defined position is very confusing.


 


Best,

Expert:  Howard replied 1 year ago.
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