Work permit and Employment Tribunal case

[shrivast77]

Hi

I wanted to know the impact on work permit if employee has put a case on the employer for constructive dismissal. Any help with this matter will be much appreciated.

Thanks G

[paulp]

Is that the same employer who applied for the work permit?

[shrivast77]

Yes, its the same employer who applied for work permit.

[Frontier Mole]

That is a very interesting point - had a discussion on that very matter last week.

The immigration rules suggest that the employer has the upper hand as they can terminate your employment and inform UKBA of such. As the WP is employer based then once they no longer employ you your leave to remain ceases. At that point you have 28 days to find another sponsor under the new PBS system. A near impossible task.

Technically after the expiry of 28 days after your termination of employment you become an overstayer.

There is no easy solution at that point - if UKBA issue you with a removal notice you will have the right of appeal BUT relying on an Employment Tribunal hearing / outcome will not prevent removal. An ET can NOT force an employer to take back an employee so you have no further right to return to work with the employer at the start of the process or at the end.

From a UKBA point of view removal will not hinder the outcome of the ET either as you can be represented in country.

The real question that would have to be resolved would be the view of immigration appeal; would the AIT consider the removal to be sufficiently invasive on the ET process to warrant overturning a removal notice? That is a tough one to answer, I think the actual events that caused the employment termination would have a bearing on the merit of your ET and by association this would form the view on your removal.

Sorry not a conclusive answer but perhaps points to the main areas that would have to be dealt with if the circumstances arise.

[Mr Rusty]

[quote="Frontier Mole"]That is a very interesting point - had a discussion on that very matter last week.

The immigration rules suggest that the employer has the upper hand as they can terminate your employment and inform UKBA of such. As the WP is employer based then once they no longer employ you your leave to remain ceases. At that point you have 28 days to find another sponsor under the new PBS system. A near impossible task.

Technically after the expiry of 28 days after your termination of employment you become an overstayer.

quote]

I wonder why you say that. Everything in the Rules suggests that the grant of entry clearance or leave to remain is a separate transaction from the grant of a work permit (or now sponsor certificate), thus cancellation of leave is likewise. Para 323 says that someone's leave "may be curtailed" if they no longer meet the requirements, and 323A specitically deals with the new categories:
"323A. In addition to the grounds specified in paragraph 323, the leave to enter or remain of a Tier 2 Migrant or a Tier 5 (Temporary Worker) Migrant may be curtailed, or its duration altered, if:

(a) the migrant's Sponsor ceases to have a sponser licence (for whatever reason)

(b) the migrant's Sponsor transfers the business for which the migrant works to another person, that person does not have a sponser licence and that person:

(i) fails to apply for a sponser licence within 28 days of the date of the transfwer of the business,

(ii) applies for a sponser licence but is refused, or

(iii) applies for a sponser licence and is granted one, but not in a category that would allow it to issue a Certificate of Sponsorship to the migrant, or

(c) the migrant ceases working for the Sponsor. "

That's a long way from saying that someone automatically becomes an overstayer 28 days after they've been sacked, and liable to be arrested and served with papers. The employer does have the whip hand, because he can inform UKBA (and to preserve his Licence is probably bound to do so), thus curtailment may follow. But until it does, the leave is still valid.
In any case as far as I can see the 28-day limit is a duty on the sponsor, not on the individual employee, although he may be affected by a sponsor's non-compliance.

That said, the OP has no right to remain in the UK for an Employment Tribunal once his leave has expired.

[Frontier Mole]

The termination of a WP is employer based and if the employer informs UKBA through the use of the form they are supposed to use then the employee is in the 28 day zone. The 28 day zone applies as that is the period of time for the individual to seek a new CoS. Failing to achieve that makes them an overstayer.

I have not mentioned anything about arrest or any other form of enforcement action. So have no idea why you mention or suggest that kind of action.

As for curtailment that is not deemed necessary in the case of a WP that has been terminated by the employer. It can be done but it serves little purpose as the individual immediately fails to meet the rule as soon as they leave the employer. Hence they fall into the overstaying zone regardless of any curtailment action.

As for trying to separate entry to the UK from the issue of a WP. Entry depends on having the right to work, the right to work for a specific employer in a specific role. There is no longer any route to “amendâ€

[Mr Rusty]

So if the employee is unable to get another job within 28 days, UKBA will refuse any subsequent application he makes for change of employment, because it's out of time - or declare any certificate issued by another employer invalid? Is that right? Would he have a right of appeal?

The reason I mentioned enforcement action is because the term "overstayer" normally implies an offence under S24.i(b) of the 1971Act, for which someone can be arrested:-
"(b)if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either—
(i)remains beyond the time limited by the leave; or
(ii)fails to observe a condition of the leave;"

Action is normally taken against people who are "overstayers", as defined by the date of expiry of leave granted to them, or who are "working in breach" normally the only offence effectively recognised under (b)(ii)

Let's consider 2 scenarios:
1) UKBA Enforcement officers visit an address and encounter a foreign national who produces his passport showing he has current leave as a WP Holder/Tier 2 migrant, whatever. This has not been curtailed by UKBA. However, checks show that he left his job 3 months ago and he has been unable to find another job. He is not arrested because he has current leave. He's NOT an overstayer.
(In this respect the ZHOU judgement is possibly relevant - the court held that someone granted leave as a student was not liable to enforcement action (failing to observe a condition of their leave) simply because they were not attending a course of study. I would guess the courts would treat an employee the same way.)
2) UKBA enforcement officers visit a restaurant and encounter a waiter who has current leave which was granted with a certificate issued by an IT company who dismissed him 3 months ago. He took the only job he could find. He is arrested and served with papers for working in breach.

I don't disagree that once an employer has dismissed someone and notified UKBA, that person is likely to be in a very difficult situation, and if he/she wants to pursue an Employment Tribunal case against the employer, the Immigration Rules are not going to help.