Work Permit to Tier 2 Help please!

[bernardlee]

I have been working in the UK for the last 4 years as a paediatric physio under a permanent contract of employment from the NHS via the old work permit for skilled migrants. I have even bought a house here in the UK.

The work permit is about to expire, so I asked my HR to extend it. HR said that they fully want to continue to employ me in the same job (after all, I have a permanent contract with them) so they submitted an application for extension, which was an application for Tier 2.

They have been told that they have already reached their cap on Tier 2, so the Home Office is delaying a decision on whether to allocate. Thing is, this has dragged on 6 weeks, my work permit expires 31st October, and HO say that they won't reach a decision until next month.

So my questions are:
1. I assume I cannot work past the 31st October?
2. Do I need to leave the country on the 31st October?
3. Can I stay in the UK whilst the application is still being considered?
4. If I do need to leave, do I get any time to sort out my life, sell my house etc?

And a further question, which I'll probably need to ask an employment lawyer, but if anyone has any experience of -
5. How can my employer terminate my permanent contract on the 31st October, basically without giving me any notice?

Many thanks for any views on this.

Bernard.

[geriatrix]

1. No.
2. Yes, unless you submit a Tier 2 application before expiry of your current leave.
3. If you mean CoS application, then no. If you mean Tier 2 application, then yes.
4. If you stay in UK beyond the date of expiry of your current leave without submitting an application for leave to remain before the current leave expires, then you will be an overstayer.


regards

[bernardlee]

Thanks for your advice sushdmehta.

I thought that was the case. So I'm a bit stuck, because unless my employer can get a CoS, then I can't put in the Tier 2 application. And since my employer has reached its cap, it needs to wait until the HO decides on whether they can issue me with a CoS.

There's another form called the Further Leave to Remain FLR(IED), which if interpret it correctly, means that I can apply for temporary leave to remain in the UK after 31st October, whilst the HO is making its decision. Do you know if that would apply in this case?

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[The Station Agent]

no, the FLRIED form is not correct if you are switching to tier 2. there's a separate app form for tier 2 (all very confusing).

I believe some other people are in the same boat and when they are very close to running out of time they have lodged a tier 2 extension of stay form and explained that their Certificate of Sponsorship is pending due to delays at the UKBA and can the caseworker please sit on the case until such time as the CoS can be issued. It's chicken-up but unless you lodge the application to remain before your current stay expires you could be refused on that technicality regardless of your merits.

Your employer has screwed up - not you.

[Gadro]

I feel for you dude. This is a really annoying problem.

With regards to your employer getting the CoS allocation, this part should not be difficult due to the fact you are in a skilled job and are already in the UK on a work permit. I think the fact you have been here for 4 years may have some bearing on the outcome however ... not too sure on that.

The problem you have though is that the process of your employer getting the CoS allocation changed befofe October is out could be very tough given there seems to be a panel that reviews these that only does so for a given month (up untl the 25th of that month) at the start of the next month ... this means your allocation won't come through before your current visa expires.

Basically, from my limited experience you have four options.
1) Your employer contacts the Sponsor Licensing Team and explains the emergency situation and that a CoS allocation is required before the next panel review. You complete a T2 application in earnest and pray a CoS allocation it comes through.
2) You apply for tier 1 instead, assuming you meet the requirements.
3) You take a temporary leave of absence from your work, return back overseas before your current leave runs out, wait for the CoS allocation and apply externally. You might need to check that his approach doesn't have an impact on getting the CoS allocation in the first place though, the employer might need to explicitly state from where you will be applying etc.
4) You do as another poster said above, submit your T2 application with some special notes to suggest a CoS is pending review and the case worker could very kindly connect the two cases to determine the appopriate outcome. This might be a tricky approach though, the caseworker might just as easily state your application was invalid/incomplete and potentially leave you with no course for review or additional application as you would now be overstaying.

If you go with either 1) or 2) then you will have an application in progress and won't be classed as an overstayer.

If you go with 3) and things don't work out, you can always try 2) externally and if that doesn't work out, return on a holiday visa and sort your affairs out.

I think the worst outcome is that you risk getting the overstayer tag against you. This really compromises your chances of ever returning to the UK as by right you have broken immigration law and the immigration authorities can just turn you back around at the airport if you try to come back and sell your house etc.

Tough situation. Hopefully the above helps, but I am not an expert, you would be well placed to contact an immigration lawyer fast to confirm your options!! Good luck!

[bernardlee]

Thanks for all your replies and sentiment.

Well it's good news, via persistent nagging from my employer, the HO at the eleventh hour has finally given me the CoS allocation that I need. Therefore I have submitted my Tier 2 application and all should be well.

I do wonder why has it taken so long for my employer and the HO to end up at this point? If things were done weeks ago as per a sensible plan, I wouldn't have been so stressed about it. Perhaps it is the government trying to make it difficult for people to stay.

Or perhaps it's fate, and that without it, I wouldn't have shared a little discussion with the nice people on this board!

Thanks all,

Bernard.