Mrs H* came to Danielle Cohen, UK immigration solicitor, at the end of five years as a work permit holder. Prior to her work permit, she had been a student and felt exasperated by the application process. She had hoped that she was going to be making her final application to the Home Office after completing five years as a work permit holder as she was eligible for indefinite leave to remain.
However, things were not so simple and Mrs H feared the end of application misery was in fact, not in sight. One of the requirements for indefinite leave to remain as a work permit holder, highly skilled migrant or as a Tier 1 or Tier 2 migrant is that you have ‘continuous lawful residence’. As a UK immigration solicitor, we decided to help Mrs H in her case.
There are certain events which break the chain of continual lawful residence, these include gaps, when you have no leave to remain as a work permit holder or highly skilled/Tier 1/Tier 2 migrant and excessive periods of absence from the UK.
There is no prescribed amount of time you are allowed to be absent from the UK for but the guidelines suggest that an acceptable period of time is in line with annual leave. Unfortunately for Mrs H, she had much longer periods of absence from the UK during her time as a work permit holder.
Luckily for Mrs H, there is provision in the Immigration Directorate Instructions for discretion in applications for settlement as a work permit holder. Mrs H was relieved to hear this!
The instructions are that discretion can be exercised where absences are no more than three months at one time and no more than six months in total over the five years as a work permit holder. This is in situations where the absences were in the course of the Applicant’s employment or where there are compassionate and compelling circumstances.
For Mrs H we asked for discretion on both grounds. Her job under the work permit had required that she travel and she had an elderly and sick relative abroad so she travelled there for a family event.
As a UK immigration solicitor, we supported the application with letters from employers and from a doctor to her ill family member. We provided lots of evidence to help her as Mrs H had been absent even in excess of the six months in the guidance on discretion…
Low and behold two months later our application was successful and Mrs H now has indefinite leave to remain as a work permit holder and is free of applications to the Home Office!
*Whilst the stories we use here are all true, the names have been changed to respect and preserve our clients’ confidentiality.