Validity of Old Tier 2 and notice (Change of Employment)

[brownlondon]

Hi everyone,

I have some questions regarding the validity of my Tier 2 visa with my current employer. It would be really appreciated if I could I have some inputs from here. Thanks!!!

I obtained my Tier 2 biometric card with my new employer. The issue date is 10th Sep 14 and start date in COS is 15th Sep 14.

As soon as I received my passport + tier 2 biometric card with my new employer, I immediately submitted my resignation to my current employer on 16th Sep 14. I am now serving the notice period and I am trying to negotiate with my current employer to shorten it.

1) The legal team of my new employer mentioned they can update the start date in COS with SMS message at any time, does it mean my current employer could actually insisted on 3 month notice as stated in my employment contract? as my new employer could update the start date in COS to from 15 Sep to 16 Dec 2014? (apparently they need to update it anyway cos it's past 15th Sep 2014 already)

My current employer wanted me to serve full 3 month notice...

2) Could I argue with my current employer that my current tier 2 with them was rendered invalid on 10th Sep 14 (issue date of my Tier 2 with new employer), and hence they should let me go as soon as possible? say...15th Oct, and then I ask my new employer to update the start date in COS?

3) What is the legal status of my old Tier 2 with my current employer? Does the legality depend on the new start date the new employer update in the COS? Or it was not valid any more ever since 10th Sep 2014 (issue date of new Tier 2) or 15th Sep 2014 (initial start date in COS) whether the start date with my COS with the new employer is updated or not?

4) Any advice on how I could leave as early as possible...?

Thanks sooooo much for any input!!

Brown

[sahilxtyagi]

Hi,

I am in the same situation!

First of all once your visa is transferred to a new employer then it is illegal to work for somebody else! So I am planing to use the same argument to reduce my notice period and will show them that I am doing a favour by working at max 1 month and infact the new employer is doing this huge favour by allowing me to work for you. If the new employer makes an official complaint then the old employer might have to huge fine of £10,000 to UKBA.

I am not an expert of on this issue.. but this is what I will try to do in coming days.

Thanks,
V

[manci]

You are only allowed to work for the old sponsor, and they are only allowed to let you work for them, until the work start date stated in the new CoS. By allowing you to continue to work illegally they are in breach of the terms of their sponsor licence which may be suspended or revoked and they may be fined. You are also in breach of the terms of your leave.

The new sponsor cannot add sponsor notes to the CoS after it has been "used", i.e. after you obtained your leave. Ask them to call the HO employer helpline for confirmation: 0300 123 4699.

Your employment contract probably has a condition that makes your employment subject to having the necessary immigration permission to work which you no longer have (for the old employer).

As far as not being able to give the required notice is concerned this is not an immigration matter - look in your employment contract to see if there are any provisions or penalties for not giving the required notice.

[brownlondon]

Thanks manci and vivek!

Manci- your point is very valuable, and I called the HO today and they did say the start date cannot be changed in COS once it's used...

Therefore I called the paralegal in my new employer, and her explanation is as follows:
--
While start date in COS cannot be ''changed'' once it's used in the system, new employer can document the update of start date under '' report migrant activity '' in the sponsor system to explain that ''the start date has been deferred to xxx due to xxx (for example, applicant serving notice period in the last employer)''. This serves the purpose of updating the start date from sponsor's end.

If now is past the original start date, then ''report migrant activity'' needs to updated ASAP, cos as Manci said, otherwise it is a breach of leave/immigration law with both current and new employer.

Finally, my paralegal suggested that I may not be able use the legality of tier 2 with current employer as a leverage to argue, cos my start date will need to be updated in ''report migrant activity '' anyway. It could be shorter but could be longer if my current employer demanded say...3 months. After the ''report migrant activity '' with new employer is updated, then we are still allowed to work for current employer from immigration law's perspective.
--

Brown

[manci]

Thanks manci and vivek!

Manci- your point is very valuable, and I called the HO today and they did say the start date cannot be changed in COS once it's used...

Therefore I called the paralegal in my new employer, and her explanation is as follows:
--
While start date in COS cannot be ''changed'' once it's used in the system, new employer can document the update of start date under '' report migrant activity '' in the sponsor system to explain that ''the start date has been deferred to xxx due to xxx (for example, applicant serving notice period in the last employer)''. This serves the purpose of updating the start date from sponsor's end.
If now is past the original start date, then ''report migrant activity'' needs to updated ASAP, cos as Manci said, otherwise it is a breach of leave/immigration law with both current and new employer.

Finally, my paralegal suggested that I may not be able use the legality of tier 2 with current employer as a leverage to argue, cos my start date will need to be updated in ''report migrant activity '' anyway. It could be shorter but could be longer if my current employer demanded say...3 months. After the ''report migrant activity '' with new employer is updated, then we are still allowed to work for current employer from immigration law's perspective.
IMHO the paralegal misinterpreted the rules. There is no problem with delaying the actual start date if this is by agreement with the new employer (and it can be for a variety of reasons such as missed flight, sickness, etc.) but this does not change the work start date given in the CoS and, more importantly, does not allow you to work for the old employer beyond the start date given in the CoS. Ask the paralegal to seek confirmation of this from the UKVI employer helpline( 0300 123 4699)

You should also warn the old employer that they are breaking the law by allowing you to continue working. Tell them to check if they are allowed to do so by calling the UKVI employer helpline

Brown