Breach of Tier 2 - Help Needed - Freelance Work

[AshBasingstoke1]

Good evening all

Here I am... making my 3rd Tier 2 application in under 3 years. The first 2 times were fairly easy:
1. April 2015 - First time, I applied. HR messed up my SOC code and I had to appeal, then make a fresh application. Got Tier 2 same day visa after a year and a half long ordeal.
2. Jan 2017 - Second time, I was sponsored by another company in the same group of companies (because the 1st company closed). It was a fresh application and I made another same day appointment. Got the visa.
3. I started a part time job on a part time basis with a company in London (in line with the Government’s rules – 20 hours a week and at the same level of position as my main job)
4. July 2017 – I had a minor car accident. Got a letter from the police saying that they are still investigating the incident and it can take up to 3-4 months to know the outcome – whether they’ll fine me or give me points or send me to a driving awareness course (they didn’t mention the penalties but I’m guessing that’s what they meant).
5. August 2017 – I am being made redundant by my company and I have been given 12 weeks’ notice – My last day being Friday, the 13th of October 2017.

I have now asked my part time employer to employ me full time to which he has agreed but he will have to apply for a license first, then carry out a RLMT and finally I can make the application.

In light of the above events, can you please tell me:
1. If we get the license application process started in the next 2 weeks, how long will it take for the new employer to get a sponsorship license?
2. Can the new employer carry out RLMT while the license application is being processed?
3. Will my part time job (PAYE basis) for the new employer be an issue in RLMT? Am I a pre-selected candidate? I will obviously go through the entire interview process.
4. Will my car accident have an impact on my application? Does this count as a criminal record? The police haven’t prosecuted me or anything and the accident was very minor.
5. When do my 60 grace days start? After my 12 weeks’ notice period has been served?
6. From your experience, do you think it’s worth me sticking around in the UK or should I just go back after my 12 weeks notice? I read that once I go back, I can’t come back for 12 months.

I would really appreciate your help guys as I don’t really know what to do. This has happened all of a sudden – I still have my phone contract, and some credit cards bill to pay which will take at least 6-7 months to pay off.

Thank you

[CR001]

Not as unique as you believe

1. If we get the license application process started in the next 2 weeks, how long will it take for the new employer to get a sponsorship license?

It can take 8 weeks or more.

2. Can the new employer carry out RLMT while the license application is being processed?

Yes

3. Will my part time job (PAYE basis) for the new employer be an issue in RLMT? Am I a pre-selected candidate? I will obviously go through the entire interview process.

RLMT will have to prove you have not been 'pre-selected'. The whole purpose of RLMT is to prove to HO that no BC/EU or settled person could do the job. They cannot structure the RLMT to suit you and thereby excluding everyone else.

4. Will my car accident have an impact on my application? Does this count as a criminal record? The police haven’t prosecuted me or anything and the accident was very minor.

Unlikely.

5. When do my 60 grace days start? After my 12 weeks’ notice period has been served?

Which 60 days are you referring to? There is no '60 days grace period'. You have a 60 days period once you are issued a curtailment letter and then separately you have the 60 days gap between employment that has an effect on ILR.

6. From your experience, do you think it’s worth me sticking around in the UK or should I just go back after my 12 weeks notice? I read that once I go back, I can’t come back for 12 months.

If you leave the UK, yes you will be subject to the 12 month cooling off period before you are able to apply for a Tier 2 General visa again.

[AshBasingstoke1]

Thank you CR001. I know you don't like people repeating questions but just for my peace of mind:

1. How can the company prove that I haven't been pre-selected when I have already been working for them part time?

2. Do they need to show that I was interviewed just like everyone else?

3. This Industry that this company operates in is quite niche and is in a very remote area (which hopefully should help in RLMT).

Any tips or pointers that could help? I REALLY appreciate your prompt response my friend

[CR001]

1. How can the company prove that I haven't been pre-selected when I have already been working for them part time?

That's the whole point of RLMT isn't it. HO can and often do ask for full details of applicants that have applied and why they have been rejected.

2. Do they need to show that I was interviewed just like everyone else?

Yes

3. This Industry that this company operates in is quite niche and is in a very remote area (which hopefully should help in RLMT).

I cannot comment as wouldn't know the circumstances. What might be niche and remote to you/company, might not be to HO.

[Djsuccess]

Good evening all

4. Will my car accident have an impact on my application? Does this count as a criminal record? The police haven’t prosecuted me or anything and the accident was very minor.

You seem worried about the car accident, it also appears that you have accepted that you were at fault for the accident. A car accident on its own shouldn't affect you as long as it is not drunk drive case or over speeding. But if it resulted in points on your license then you might have to declare it. It shouldn't affect the application anyway but must be declared.

[firecube]

Think you do have time if company applies...

The company I will be working for applied in spring and got license in less than 3 weeks. (Sme).


Think your biggest risk is the rlmt because you have been previously working for them and this will be in the records.
If the company has additional rational/genuine vacancy for a

[AshBasingstoke1]

Think you do have time if company applies...

The company I will be working for applied in spring and got license in less than 3 weeks. (Sme).


Think your biggest risk is the rlmt because you have been previously working for them and this will be in the records.
If the company has additional rational/genuine vacancy for a

Thanks mate. Did your Tier 2 Visa come through?

Regarding RLMT... yes, I feel the same. However, what if they advertise the vacancy and no one actually applies or the people who apply don't have the skills or don't seem to fit the "work culture". I will undergo the entire Interview process and they can show that I ticked the right boxes. It just happens that I had a part time job with them previously but the company genuinely did try to recruit an EU/UK national.

Can you help?

Thanks

[firecube]

Yep.. got my vignette last week.. end to end it was less than 3 months from company sponsor license to my visa (I had to get rid so u could even be faster on that step). There were no hiccups along the way but things were done by the book.

Company should take care to get the job description right. They cant gerrymander it just for you.. but they should put in a realistic list of requirements for the job. Once the post goes up this is the only criteria the company could effectively say a settled candidate does not meet suitability.. so do not rush this out without some thought. Also make sure all items that need to be included are.

[AshBasingstoke1]

Hi guys, In addition to my full time employment, I took on a part time assignment as some extra freelance work and did this for about 3 months. I received 3 payments directly to my bank account.

Then I read up on the rules and told this part time firm that my Visa rules don't allow me to work as a freelancer and therefore, I must be paid PAYE (20 hours a week).

This part time company then gave me a proper employment contract for 20 hours a week. Since then, I have been getting paid regularly.

However, this part time firm now wants to employ me full time. They have applied for a license and are doing the RLMT too. However, I am a little scared if the home office can refuse my Tier 2 application on the basis that I breached my Tier 2 visa terms when I worked freelance for those 3 months. Is this a big problem? Is there anyway that the home office will find out that I worked freelance for 3 months?

Thanks guys!

[CR001]

How did you pay the income tax on the 3 months of earnings?

[Casa]

If you paid tax on the freelance earnings this will be on record with HMRC and information is shared with the Home Office.

On another point, if you are already working part-time for the company who now want to sponsor you, how will they convince the HO that you haven't been pre-selected?

Edit: Pipped to the post again by CR001

[AshBasingstoke1]

How did you pay the income tax on the 3 months of earnings?

I haven't paid any tax on it yet. But I can pay tax on it this year, right? Will that not work? Am I in big trouble?

[CR001]

The minute you do a self assessment to declare the income and pay tax, you will be seen as 'self employed/contracting'.

Did you invoice them for your time?

How long ago did this occur?

[AshBasingstoke1]

If you paid tax on the freelance earnings this will be on record with HMRC and information is shared with the Home Office.

On another point, if you are already working part-time for the company who now want to sponsor you, how will they convince the HO that you haven't been pre-selected?

Edit: Pipped to the post again by CR001

I didn't pay any tax on those earnings (not yet at least). As for the pre-selection, not sure...What do you suggest? We can always show that even though there were candidates who applied, they didn't meet the criteria. I will undergo the same interview process as them. Is that not sufficient enough?

I have been working tirelessly in my full time role and my part time role. I found this part time role through networking (my own initiative). Does the HO not take all this into account? That the migrant is a positive addition to the economy?

[AshBasingstoke1]

The minute you do a self assessment to declare the income and pay tax, you will be seen as 'self employed/contracting'.

Did you invoice them for your time?

How long ago did this occur?

I only sent them a basic template created on MS word. It didn't have my NI number or anything - just my name and bank details. I am not registered as self-employed. I am on full time employment with company A and on PAYE 20 hours with Company B.

This was in November last year. I got paid for the months of Nov, Dec and Jan.

[CR001]

HO only take the rules into account, no emotion, tax paid or anything else.

It is and always will be, the applicants responsibility to make sure they know what the rules are regarding their visa they are on.

Suggest wait for iworker, moonlight55 or FrontierMole to comment further.

[iworker]

I cant suggest to not pay any tax as that will be illegal. However, just saying if i were in your situation, which is like a catch 22, where paying tax (on a small amount anyway) may catch u out, i would know what to do. you know that feeling we get when the Clankys and Earthworms tell us not to do something right, this one time.
If your employer is serious in taking u on, and does submit everything to the book, they could possibly get the licence quick.
However, rlmt will have to be done correctly. There is no shortcut and they can be caught quick if they faulter or try to trick the system.
Hope for the best but prepare for the worst, which means, look for other sponsors as well during the time they are doing the licence and rlmt.

[Casa]

Just one comment...how do you know there will be no suitable candidates when there haven't been any applications yet?

[CR001]

Just one comment...how do you know there will be no suitable candidates when there haven't been any applications yet?

Unless the RLMT is specifically tailored to suit the OP and to exclude all others.

[AshBasingstoke1]

I cant suggest to not pay any tax as that will be illegal. However, just saying if i were in your situation, which is like a catch 22, where paying tax (on a small amount anyway) may catch u out, i would know what to do. you know that feeling we get when the Clankys and Earthworms tell us not to do something right, this one time.
If your employer is serious in taking u on, and does submit everything to the book, they could possibly get the licence quick.
However, rlmt will have to be done correctly. There is no shortcut and they can be caught quick if they faulter or try to trick the system.
Hope for the best but prepare for the worst, which means, look for other sponsors as well during the time they are doing the licence and rlmt.

Thanks guys! I'll take your point on the tax bit. Silence is Golden

I'll keep you updated. Thanks for your help so far - All of you are heroes!

[Wanderer]

What if the freelance employer is audited by HRMC and they check payments made to you and want to know where the tax is?

I've seen the Finanzamt do this in Germany and flay people alive. HMRC use bullyboy tactics too so I would never attempt to cheap them. They use software developed by BAe Systems to analyse peoples finances and people they've worked for.

I say don't risk it.

[AshBasingstoke1]

What if the freelance employer is audited by HRMC and they check payments made to you and want to know where the tax is?

I've seen the Finanzamt do this in Germany and flay people alive. HMRC use bullyboy tactics too so I would never attempt to cheap them. They use software developed by BAe Systems to analyse peoples finances and people they've worked for.

I say don't risk it.

Thanks mate. What do you suggest I do instead? Damned If I do, Damned If I don't?