Sponsor licence and TUPE protection

[Thais_London]

Dear friends,

I was hoping somebody would help me regarding the following issue:

I have been on a Tier 2 general visa since July 2012, with the same employer Company A, my current leave expires on July 2017, so it is my last year before the ILR.

My employer’s licence expires on 29 April 2016 and as the trading volumes have drastically decreased they recently told me that they wish to surrender it, i.e. not pay for its extension for another 4 years, but they wish to have me transferred to another company - Company B, which is part of the same group: i.e. both companies have the same director, the same accountant and are actually based at the same London address.
Company B also does have a Tier 2 Sponsor Licence and it continues trading. Both companies are partly controlled by one other CIS and one UK based companies (I do not know the exact details, but it is a business partner of the owner and director and is helping both Company B and Company A financially).

My job title in Company A is Assistant Product Marketer, the code of occupation is 3543. I applied before June 2012, when this code was still NQF6 and I extended my application in 2015 for another two years and still used the same code, as it was an extension application.

My role in Company B is of similar capacity, code 3543, i.e. Marketing for Oil Product Events.

I’ve been reading Tier 2 and Tier 5 guidance for quite a while and consulted a few people, some of them say that I would need to make a new Tier 2 visa application (and Company B needs to arrange a new RLMT and get a new unrestricted Certificate of Sponsorship for that), some of them say my job is covered by TUPE and all the employer needs is report the changes either by SMS and/or e-mail to Sponsor Compliance team.

We are preparing the letter to UKVI Sponsor Compliance Team. We’re probably doing it correct, but I feel now very panicky and maybe I do not see the trees behind the bushes. The trouble is that all the immigration charges are not covered by the company and I would have to pay it all myself, which is a lot for me, unfortunately.

So, basically I would like to ask you two questions:
-Does the surrendering of company A licence and transferring me to company B triggers TUPE or similar protection of myself? What kind of paperwork the owner of Company B needs to submit to prove it is triggered?
-Is it OK that I will be working under the same code 3543 in company B, even though it ceased to be NQF6 and is now NQF4?

I would be very grateful if somebody could shed some late on the matter.

[Thais_London]

Can anyone help please? I'm now desperate, as the letter needs to be sent today:(

[Frontier Mole]

Surrendering the licence does not trigger TUPE
Company A would have to be formally taken over by company B. Shared ownership/ directors etc is meaningless in this case.
If there is no takeover or merger of company A then TUPE is not engaged.
Company B would have to conduct RLMT etc and you would have to apply for a visa.
On the up side I am assuming company A will have to make you redundant so you are probably due some redundancy payment to offset your visa costs.

[Thais_London]

Are you sure? This is part or reorganisation of the whole group - both companies are partly owned by another company now, so they are part of the same group.

There's an example of these arrangements in the guidance:

Example 5 - a takeover when the overall owner remains the same but the immediate owner changes
Global Company G is restructuring. It owns 100% of Company A through a holding company (Company B).
Company A is a sponsor licence holder.
Global Company G establishes a new holding company (Company H) and transfers Company A to Company H.
Global Company G still owns 100% of Company A through Company H
Company A has a new direct owner, and must apply for a new licence to continue to employ the workers. TUPE will not apply because there is no change of employer, but employees can be moved to the new licence without a change of employment.
Company A must report the change within 20 days via the old licence
Once the new licence is granted, Company A must confirm with us that they are taking full sponsorship responsibility for any migrants under the new licence, and provide the supporting evidence.

Example 7 - restructuring where another branch can act as sponsor
Global Company G owns a portfolio of brands, trading across the world under the respective brand names where Company G is the ultimate parent company. Company G has several branches in the UK.
Branch A, a licensed sponsor, is to be wound up. Its employees will move with TUPE protection to Branch B.
Branch B is not a licensed sponsor.
Branch A will cease to trade and must notify us of this within 20 days of ceasing to trade.
 Branch B must apply for a sponsor licence, and send the supporting evidence, within 20 days of Branch A’s employees transferring to them
Or
 one of the other Company G’s branches, Branch C already has a licence
o Branch C may add Branch B to their licence as a branch; and also act as sponsor for Branch B’s employees
in this case Branch A and Branch C must inform us of the changes via SMS, and give us the list of transferring migrants. Branch C must provide us with the supporting evidence.
Example 8 - where the HR function is moved to another branch
Example 8 - where the HR function is moved to another branch
An umbrella company, Company G, has 4 entities in the UK:
 Company A
 Company B
 Company C
 Company D
The Company G and each separate company it owns has its own licence. All are listed as branches of the umbrella company G.
The Company G wishes all sponsorship to be transferred to itself.
This is not a merger or takeover, rather it is a movement of HR function to the single umbrella sponsor. Each branch surrendering their licence should report this, and the details of each migrant transferring to the umbrella company, together with confirmation that they are happy to have the licence made dormant, via the SMS. The umbrella company should also report that they are sponsoring each migrant. The branch licences will be made dormant to allow the umbrella company to report on them. TUPE is not triggered because the employees have not changed employers, but they can be moved to the new sponsor using the SMS. The Umbrella company must confirm with us that they are taking full sponsorship responsibility for any migrants under their licence, and provide the supporting evidence.

[Thais_London]

Are you sure? This is part or reorganisation of the whole group - both companies are partly owned by another company now, so they are part of the same group.

There's an example of these arrangements in the guidance:

Example 5 - a takeover when the overall owner remains the same but the immediate owner changes
Global Company G is restructuring. It owns 100% of Company A through a holding company (Company B).
Company A is a sponsor licence holder.
Global Company G establishes a new holding company (Company H) and transfers Company A to Company H.
Global Company G still owns 100% of Company A through Company H
Company A has a new direct owner, and must apply for a new licence to continue to employ the workers. TUPE will not apply because there is no change of employer, but employees can be moved to the new licence without a change of employment.
Company A must report the change within 20 days via the old licence
Once the new licence is granted, Company A must confirm with us that they are taking full sponsorship responsibility for any migrants under the new licence, and provide the supporting evidence.

Example 7 - restructuring where another branch can act as sponsor
Global Company G owns a portfolio of brands, trading across the world under the respective brand names where Company G is the ultimate parent company. Company G has several branches in the UK.
Branch A, a licensed sponsor, is to be wound up. Its employees will move with TUPE protection to Branch B.
Branch B is not a licensed sponsor.
Branch A will cease to trade and must notify us of this within 20 days of ceasing to trade.
 Branch B must apply for a sponsor licence, and send the supporting evidence, within 20 days of Branch A’s employees transferring to them
Or
 one of the other Company G’s branches, Branch C already has a licence
o Branch C may add Branch B to their licence as a branch; and also act as sponsor for Branch B’s employees
in this case Branch A and Branch C must inform us of the changes via SMS, and give us the list of transferring migrants. Branch C must provide us with the supporting evidence.
Example 8 - where the HR function is moved to another branch
Example 8 - where the HR function is moved to another branch
An umbrella company, Company G, has 4 entities in the UK:
 Company A
 Company B
 Company C
 Company D
The Company G and each separate company it owns has its own licence. All are listed as branches of the umbrella company G.
The Company G wishes all sponsorship to be transferred to itself.
This is not a merger or takeover, rather it is a movement of HR function to the single umbrella sponsor. Each branch surrendering their licence should report this, and the details of each migrant transferring to the umbrella company, together with confirmation that they are happy to have the licence made dormant, via the SMS. The umbrella company should also report that they are sponsoring each migrant. The branch licences will be made dormant to allow the umbrella company to report on them. TUPE is not triggered because the employees have not changed employers, but they can be moved to the new sponsor using the SMS. The Umbrella company must confirm with us that they are taking full sponsorship responsibility for any migrants under their licence, and provide the supporting evidence.

[Frontier Mole]

Does the company that owns in part as you say have 50% or more f Company A and B?

[Frontier Mole]

You need to demonstrate presisly the entire ownership structure based on shareholding and not directorship.

[Thais_London]

Yes, it does

[Thais_London]

Understood, thank you! The Director is preparing the ownership/shareholding structure.

[manci]

Apart from the TUPE issue you said that your initial T2G visa was from July 2012. When did you actually apply, i.e. was the visa granted under the rules before or after 14 June 2912? The relevance of this is set out in paras 76 and 77 of the T2 policy guidance and para 24.10 in the T2 sponsor guidance.

You said the company expects you to reimburse any immigration charges they incur. The actual charges would be £536 for company A renewing their sponsor licence (assuming they are a small company) or £199 for Company B assigning a CoS to you.

Assuming TUPE is not engaged If company A decline to renew their sponsor licence your visa will be curtailed to 60 days counted from the curtailment decision date, not from the licence expiry date. During the 60 days you can make a new application for leave if you have a new CoS.

[Frontier Mole]

There is another way....

If company B and A are in fact more than 50% jointly owned by the same business, company A could be brought in as a branch of Company B..... This would be a nil cost way of doing it.

It also preserves your current visa till expiry and you can get an extension COS under the new structure. Sorted

[Thais_London]

Thanks Manci!

I applied in May 2012, before the rules changed in 2012, so my visa was granted. My extension application was approved last year, and I used the same code. If the Home Office now does not approve this reorganisation/restructuring change as covered by TUPE or similar protection, then I assume, I will have to apply for the visa under new codes.

Do you think is is better for me to pay the owners of the company for the extension of the licence £536 now, than to sit and wait for Home Office decision and if they do not agree, then pay £1,060 in 1-2 months - i.e. £210 for cheapest RLMT, £199 for unrestricted CoS and £651 for new tier 2 visa?

The company B licence is also due for extension in September this year, but as there are 2 more people there, cost of extension of the licence will be shared between 3 people, so it another £179.

[Thais_London]

There is another way....

If company B and A are in fact more than 50% jointly owned by the same business, company A could be brought in as a branch of Company B..... This would be a nil cost way of doing it.

It also preserves your current visa till expiry and you can get an extension COS under the new structure. Sorted

Thanks Frontier Mole, I was hoping for this too!

[manci]

Since your initial visa was granted under the rules that applied between 6 April 2011 and 13 June 2012 you can be sponsored for an NQF level 4 job by any sponsor, not only your current one. However, your current stay under T2G is limited to 6 years, i.e. to some time in 2018.

From your point of view it would seem to be the most straightforward option to reimburse company A the £532 licence renewal fee and stay put even though this amounts to virtual blackmail on their part.

Let other comments on this company remain unsaid.....

Have you thought of looking for another sponsor for the remaining 2+ years of your permitted stay under T2G? On the expiry of your current leave In 2017 you'll have to make another application in any case, be it for an extension or ILR, assuming you wish to continue to stay in the UK

[dialectic]

Hi guys.

Sorry to comment on this post as I have been inquiring about my case in another thread http://www.immigrationboards.com/uk-tie ... 00128.html

Let me know if I should continue inquiring there

What I have read here scares me a bit as I have the same question (which document is required as evidence for TUPE?). As my circumstances are similar (companies owned by the same directors working on the same premises. company A is in going through a solvent liquidation and transferring its assets/clients/equipment and employees to company B).

Company B just got licensed and both companies are ready to report me being transferred from A to B under exactly the same . I want to know what would be required as evidence of TUPE/similar arrangement.

The idea of company A being forced to make me redundant because of these circumstances scares me, so I would really appreciate some info on this

Thank you

[Thais_London]

Hi Manci and Frontier Mole,

Thanks a lot for your advise back in April.
We actually went down the more difficult and potentially free route on the transfer from company A to B. The request to change has finally been changed from "pending" to "progress" and we received the following response from Home Office, Sponsor Casework Operations:

"Please provide the following documents:
An affidavit before a practicing solicitor or an original signed letter from a Solicitor confirming that the transferred migrant is covered by TUPE regulations or similar"

Do you think this is a request of statement from director to the effect that the migrant is covered by TUPE regulations (before a practicing solicitor)or an opinion from an employment lawyer that this situation is covered by TUPE regulations? The director agrees to send a statement but he thinks that they mean a lawyer's opinion, which will probably cost a few hundred pounds at least and will take time...

Maybe someone has seen such a request before?

I'm actually sitting like a cat on hot bricks, as after the licence of company A had expired, I received a curtailment letter with my Tier2 visa curtailed till 3 September. It was before Home Office started to consider the transfer request. I was told by helpline advisors that the processing time for a merger type request is 18 weeks, so Home Office is now dealing with request on an urgent basis it seems, the status changed from "pending" to "progress" after we asked to escalate it because of curtailment. if the worst comes to the worst the company would need to run RLMT for 28 days latest on 1-2 August before assigning a new CoS...This I will also have to reimburse the company for.

Regards,
Elaine

Since your initial visa was granted under the rules that applied between 6 April 2011 and 13 June 2012 you can be sponsored for an NQF level 4 job by any sponsor, not only your current one. However, your current stay under T2G is limited to 6 years, i.e. to some time in 2018.

From your point of view it would seem to be the most straightforward option to reimburse company A the £532 licence renewal fee and stay put even though this amounts to virtual blackmail on their part.

Let other comments on this company remain unsaid.....

Have you thought of looking for another sponsor for the remaining 2+ years of your permitted stay under T2G? On the expiry of your current leave In 2017 you'll have to make another application in any case, be it for an extension or ILR, assuming you wish to continue to stay in the UK

[Thais_London]

Hi,

The company received approval of the transfer request due to Merger/restructuring on 28 July. The Director made an affidavit and it was accepted by Home Office, they sent us an e-mail confirming that my "leave to remain is now updated to" Company B (the one who continues trading and the one who has a valid licence).

I'm still a bit worried about a curtailment notice I had received prior to that, that curtails my leave to 3 September. However the Sponsor Casework Operations included the following wording in the e-mail on 28 July:

"Please note we have also contacted our Curtailments team with a view to a re-instatement of the migrants Leave to remain in consideration of the approved change".

I haven't yet heard from Curtailments team though. I called UKVI helpline and they suggested that I e-mail this team, but when I tried to do that, the e-mail bounced back, with a long information sheet about Curtailments and stating that their e-mail address does not accept incoming e-mails.

What do you think I should do now? Wait for another e-mail confirming that my leave is reinstated, get the HR to contact Sponsor Change of Circumstances team again? How long does it normally take? if a week or two, it's best to wait maybe.

Actually the most important questions is: if the Sponsor Casework Operations say that the Leave is updated (as the change in Sponsorship is approved), it is binding for the Curtailments team?

I doubt I can travel now until I receive some confirmation that the curtailment was withdrawn in some way or other?

Would be grateful if one of the gurus can have a look at it.

Kind regards,
Elaine

[Thais_London]

Hi Manci, Frontier Mole, could you have a look at it?

[Thais_London]

Please ignore my last question. I've just received a Reinstatement Notice. Phew:))