Is it possible to leave the UK and still apply for leave to settle?

January 30, 2013 6:37 AM

I am hoping to (eventually) settle in the UK permanently, but one of the requirements is worrying me somewhat, and I was hoping someone could clarify under what circumstances it is possible to leave the UK for short periods of time while on a Skilled Worker Visa.

YANMYL, I know, but I'm hoping that I can get this out of the way based on others' experience, before I do drop a load of cash talking to an immigration lawyer about the other fifty things keeping me up at night.

Basically, I am hoping that I'll soon be able to switch to a Skilled Worker Visa (Tier 2, General), with an eye to eventually being able to apply for indefinite leave to remain (and from there, for citizenship). Although there are a load of requirement that mean this may be a pipe dream, this particular clause caught my eye:

During the continuous residence period, you cannot be outside the UK for more than 180 days in any 12 consecutive months. The absences must be for a reason that relates to the purpose of your leave in the UK, or for a reason that relates to the purpose of your leave in the UK, or for a serious compelling reason (such as a serious illness). Your sponsor must confirm the reason if it was related to work. You must confirm the reason for the absence if it was for a serious or compelling reason.

Does this mean that I cannot leave the UK for ANY amount of time unless it is for work or something like a parent dying, or merely that I cannot be away for more than 180 days unless it is for those reasons? Essentially -- am I looking at five years of not going home to the US for the holidays (3 weeks max), or taking a holiday outside of the UK?

(I know that the immigration laws change constantly, but I am operating on the theory that I'll react to the laws as they stand, adjusting my behavior as needed.)

posted by kalimac to law & government (6 answers total)

You might find question 16 and 17 of this post helpful.
posted by fight or flight at 6:54 AM on January 30

I am not a lawyer or an immigration specialist, but have been though the spousal visa/ILR process with my wife, who is a dual US/UK citizen as a result.

A 'reason that relates to the purpose of your leave in the UK' can be annual leave from your employer. Notice the 'OR', it's saying 'you can leave for a reason to do with your work (i.e. a business meeting or a holiday from work' OR 'you can leave for a serious or compelling reason (illness etc)'.

This verbiage is basically to stop people getting a Tier 2, then buggering off elsewhere for 9 or 10 months out of the year, or to stop people getting a couple of months of employment with an employer and using that to justify a full year of qualifying time for the residency requirement.

The 'serious reason' part is basically a 'we'll consider it' get-out for people who come over to work then suddenly find an elderly relative requires regular care etc.

As most employers in the UK give 20 - 30 days annual leave, you'll be fine.

UK Yankee is a great forum for this kind of question, particularly from a US perspective, which I can see applies to you from your question history.

It is always worth parsing out the exact meaning of these kind of things and you can contact UKBA for clarification if you need to. If you're being sponsored for a Tier 2, you should also be able to get your company's relocation/immigration person to check these kind of things too. A Tier 2 visa is a not insignificant investment of cash, time and trust into an individual, so you should get a lot of support.
posted by Happy Dave at 8:51 AM on January 30 [1 favorite]

Relevant sentence from fight or flight's link:

"absences must be for a reason that is consistent with the original purpose of entry to the UK or for a serious or compelling compassionate reason and the applicant is required to provide evidence in the form of a letter from the employer setting out the reasons for the absences, including annual leave."

So, basically, before you book a holiday, you would need to get a letter from your employer saying something like:

"Kalimac works for us as a Tier 2 migrant. Kalimac is leaving the country for X days on a holiday, which is part of the annual leave entitlement we give to employees. We expect Kalimac to return to work on or around the Xth of X. This is Kalimac's second trip out of the UK in the past year, and adds 14 whole days to her time spent out of the UK for purposes of qualifying for residency, for a total of 17 days out of the UK in total since DATE."

Again, not a lawyer, but if you have your visa in your passport and a letter from your employer, you will be fine. Make copies of everything, all the time and ensure that you are given support by your employer.
posted by Happy Dave at 8:59 AM on January 30 [1 favorite]

You guys are amazing, thank you! I likely won't be travelling except for work or on annual leave (I can't afford to take unpaid leave!), so that puts my worries mightily to rest.

Thanks especially for the UK Yankee and immigrationboards links; they'll be invaluable the next time I'm quietly panicking about my options...
posted by kalimac at 12:58 PM on January 30

Although I'd play it straight as Happy Dave has suggested, you may actually have more options than you think.

One useful thing to do is to look ahead at the form you will eventually be filling out. For you, I believe it is Form SET(O).

If you open up that form, you can see that it does ask you list all your absences in Section 6 and then adds:

"Evidence of all work-related absences (including paid annual leave) is required from those applying under Tier 2 (Intra-Company Transfer);Tier 2 (General); Tier 2 (Minister of religion); Tier 2
(Sportsperson); Tier 5 International Agreement, and permitted employment categories - except Highly Skilled Migrants."

That would seem to imply that HSM applicants may not need evidence of work-related absences. Again, the safe thing is to ignore this and follow the rules more strictly. But there is an implication there that more wiggle room is there for HSM folks.
posted by vacapinta at 3:08 AM on January 31

Pretty sure HSMP (which has a MUCH higher qualification bar than the various employer sponsored Tier visas, as it's basically 'I'm a genius/very in demand person, let me in' visa) is quite separate from Tier 2 etc in requirements. You can't get evidence as a Highly Skilled Migrant, because nobody is sponsoring you and hence there to provide evidence.

If you're confused or uncertain, always speak to UKBA. Their website is dense and full of legalese, but they can be quite helpful on the phone (once you eventually get through) and can normally clarify specific questions. You can also write to them for clarifications if you think that the wording of a requirement is unclear or misleading.
posted by Happy Dave at 4:08 AM on January 31