Tier 2 - Curtailment of leave

Althalus · Post by **Althalus** » Sat Jul 13, 2013 4:10 pm

Greetings,

I currently hold a position as a Software Engineer, under a Tier 2 General Visa.

The company I had been working for was taken over a couple of months ago. Let's call it "OLD".
Just before the takeover - and because my visa would expire at the end of July - they asked me to extend it. That went perfectly fine, I received my extension till August 2016.
The idea was the "NEW" company would apply & get a new sponsor licence after the takeover, and I would transfer my visa to them.
This was in May.

They did apply. In June we received a visit of a UKBA agent, he interviewed me (standard procedure it seems, it had already happened when I first joined the company), and also collected documentation for the "NEW" company's sponsor licence application.
Everything seemed to be alright - the "NEW" company now shows up in the registered list of sponsors at the UKBA site for Tier 2 General. So I assume the licence was approved.

However, I have just got a letter from UKBA this week stating my leave was being curtailed, as the "OLD"'s sponsor licence was no more (it had ceased to exist 5 days AFTER my extension got approved in May), and as such, my grant of leave is cut short to Sep 1st 2013, under paragraph 323A(b)(i) of the immigration rules.
I have read this rule, and my question is, shouldn't I have been allowed to stay given I comply with rule 323A(b)(ii)? And the visa transferred successfully?
I have no right of appeal.

What are my options now? Is curtailment reversable? Or is my current VISA grant now forever revoked past September? Could it be this is just part of the standard procedure of transferring employment, and I might get a new leave in the coming weeks? (you know, as when you extend your visa, they curtail the previous BRP, and a new one comes into effect)
Or is this it, have I just lost my job?

Could the "NEW" sponsor offer me a Tier 2 position anew? Do I have 28 days after the Sep 1st to leave the country?

I still have to talk to HR about this, I picked up the letter today Saturday from the post office.

This is stressing me badly, I thought everything was alright after getting my extension - and now I get this... If things go badly this will turn my life upside down.

Thanks for whatever suggestions you might come up with.

Post by **manci** » Sat Jul 13, 2013 4:35 pm

with reference to 323A(b)(ii)(2) has the new company applied for a T2G sponsor licence within 28 days of the transfer?

Althalus · Post by **Althalus** » Sat Jul 13, 2013 4:45 pm

Yes, I believe the application was made within 28 days. The sponsor licence for the OLD company expired on the 13 May 2013. I will get the actual application date on Monday when I speak to HR.
Is the application date the important bit here? Or is the decision date on the application what counts for the 28 days?

Post by **manci** » Sat Jul 13, 2013 5:11 pm

According to 323A(b)(ii)(2) it is the application date that matters not the decision date.

Read the caseworker instructions re. curtailment:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Please explain what you mean by "the UKBA agent collected documentation for the "NEW" company's sponsor licence application"
The documentation had to be submitted with the licence application.

Also please explain what you mean by "and the visa transferred successfully"?

Althalus · Post by **Althalus** » Sat Jul 13, 2013 5:23 pm

Again, I will confirm it with them on Monday.
That's what I think he did - I might be wrong.
He interviewed me, as he had done three years ago when I got my first grant of leave, to confirm I was doing what I was supposed to be doing and there was no foul play ...
And he also collected a fairly thick folder with some company information. Including organizational diagrams of all the people involved in it, and some other stuff. I cannot tell exactly all it was as I was just a couple of pages it when the agent mentioned "... and you would be transferring to "NEW" company" and he brought it up.
Company did get the licence fine I think - it's now on the sponsor register list.

On "visa transferred successfully": I was under the impression the new sponsor would be able to incorporate Tier 2 immigrants from the old one, if they applied for a licence within the time frame and it was approved. That's what I refer to as "visa transfer". I know my terms is probably not legally accurate, heheh. That's what we were expecting to do. Get the new licence, and transfer my visa into it.
That's why I am so surprised to receive this curtailment of leave - I was expecting my grant of leave/visa/etc. to be "transferred" to the new sponsor seamlessly.

Post by **manci** » Sat Jul 13, 2013 6:05 pm

Depending on circumstances you may have had to make a change of employment application with a new CoS. Read para 194 onwards in the T2 policy guidance:
http://www.ukba.homeoffice.gov.uk/sitec ... idance.pdf

Also check with the NEW employer if they have a T2G CoS allocation available in case they have to assign one to you. Note that a resident labour market test may also be required (takes 28 days).

Althalus · Post by **Althalus** » Sat Jul 13, 2013 6:29 pm

I don't think so, I should fall under 196... my job remains exactly the same, same pay - the only difference would be the SOC Code change due to the reclassification from SOC 2000 to 2010. I fell under TUPE protection as well during the takeover.

Thanks for taking time to help! I will dig out more info on Monday and will post it.

Althalus · Post by **Althalus** » Sun Jul 14, 2013 5:26 pm

What is my immigration status now?

The letter says the Tier 2 General has been curtailed to Sep 1st. Does it mean I am still a Tier 2 General and I can continue working till this day?
In the event I am not allowed to, and shouldn't work ... the letter is dated 03 July 2013 - I received a post office card on the 8th and picked it up yesterday 13th. I have been working these last two weeks. Does it mean I have, unknowingly, been working unlawfully for the past month?

Do I get 28 days AFTER September 1? Or am I expected to be out by that date?
My original Tier 2 is pre-April 2010 (but my extension is from May this year). Does the 1 year cooling off period apply to me if I have to leave the country?

Post by **manci** » Sun Jul 14, 2013 9:27 pm

Althalus wrote:What is my immigration status now? You have valid leave to remain in the UK until 1 Sept. The purpose of the 60 day curtailment in cases where the employment and sponsorship have been terminated is to allow the migrant time to to seek other sponsorship.

The letter says the Tier 2 General has been curtailed to Sep 1st. Does it mean I am still a Tier 2 General and I can continue working till this day? No, you are not allowed to work because it appears that you are not being sponsored at present. This is of course subject to the resolution of the TUPE and date of sponsor licence application issues

In the event I am not allowed to, and shouldn't work ... the letter is dated 03 July 2013 - I received a post office card on the 8th and picked it up yesterday 13th. I have been working these last two weeks. Does it mean I have, unknowingly, been working unlawfully for the past month? It does mean that technically (both for you and the new employer).

FYI the way the curtailment process works is that the 60 day curtailment period is counted from the date the HO make their decision to curtail, which in your case was 3 July. Furthermore they only make the curtailment decision not earlier than 28 days after the employer informs them of the termination .

Do I get 28 days AFTER September 1? Or am I expected to be out by that date? If it turns out that you have to re-apply for leave to remain then you can do so until 28 days after your leave expires, i.e. until 29 September, but if you do so after the expiry of your leave on 1 September, and the application is refused for whatever reason, then you will not get a right to appeal.

My original Tier 2 is pre-April 2010 (but my extension is from May this year). Does the 1 year cooling off period apply to me if I have to leave the country? Unfortunately yes, as you have been, and are planning to remain, on T2G rather than T2 ICT.

Althalus · Post by **Althalus** » Mon Jul 15, 2013 11:47 am

Hi Manci. I have spoken to my HR department. While they did not tell me the exact dates, they confirmed they have made the application well within the 28 days from the takeover agreement finalization.

1- The interview I underwent some time ago was part of a Ukba audit after getting the new license, and it went perfectly fine. You were right, it was not part of the application process per se.

2- The process of getting a new license, and my visa being transferred, was all part of the same thing.

3- They've spoken to their UKBA contact (the guy who interviewed me in the audit) and their helpdesk, and have been advised the problem might lie in departments crossing over with the information.
A note's been made in the Management System about this situation, and the person with the authorising officer role will be receiving a confirmation letter in time.

So I suppose all is well and the letter was just a false alarm *fingers crossed*.

Thanks a lot for your advice - i will provide an update on the situation as soon as i get some more news.

Post by **manci** » Mon Jul 15, 2013 12:30 pm

Althalus wrote: So I suppose all is well and the letter was just a false alarm *fingers crossed*.

They've spoken to their UKBA contact (the guy who interviewed me in the audit) and their helpdesk, and have been advised the problem might lie in departments crossing over with the information.

Don't be complacent. If I were you I would write asap to the caseworker whose name should be on the curtailment letter (email address: firstname.lastname@ukba.gsi.gov.uk) and point out the relevant facts (TUPE, new company applied for sponsor licence within 28 days of the transfer,etc.)

It would help if you also enclosed a supporting letter from your new employer.

The relevant rules relating to the new employer are at para 746 and onwards in the T2 sponsor guidance:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Apart from the SMS they can also phone the employer helpline and seek clarification of the situation (0300 123 4699).

Althalus · Post by **Althalus** » Mon Jul 15, 2013 1:03 pm

Consider it done.

I've just gone back to talk to HR (they are gonna love me, lol), and they will be writing to the caseworker from the letter, providing an account on the situation and all relevant details about the takeover, TUPE and licence application.

Would the caseworker confirm or revert his decision based on this information?

The number you've given me is the number they had called earlier today.

Post by **manci** » Mon Jul 15, 2013 6:12 pm

Althalus wrote: Would the caseworker confirm or revert his decision based on this information?

Hopefully yes. but it would be better if you did not just leave it to HR and emailed the caseworker directly yourself. The curtailment letter was addressed to you, not to the company.

Personal immigration matters and sponsorship by companies, although related, are on two separate tracks in the HO. The employer helpline, which HR rang, cannot normally answer questions on, and don't have access to, the personal records of migrants.

Althalus · Post by **Althalus** » Wed Jul 17, 2013 12:35 pm

Hi Manci,

I understand what you mean by the dpt. divisions within UKBA. HR did send an email to the caseworker on Monday, as soon as I told them to. They have asked me not contact the caseworker myself as they want to take this up themselves. But I've been kept in the loop on what they've emailed.

In a nutshell, they have forwarded the emails they have exchanged with people from other UKBA departments, as well as pointing out the exchanges with their employer helpdesk, and have asked for clarification.

How long does it usually take for a caseworker to reply back? Do they always do? Or could it be he may not even be bothered to do it at all?

Unfortunately HR will not be starting any job search at the moment, as doing that would mean admitting the company is in the wrong keeping me employed. They have stated they have followed UKBA's advise to the fine print ever since the takeover, and even have got a positive audit (the day I was interviewed was around a month after my old sponsor had ceased to exist), so everything will turn out fine.
For the same reason, they have asked me to keep working, as they have been told the problem could be a miscommunication problem within UKBA itself, when they talked to their contacts.

All the eggs are in one basket at the moment, I guess. I am aware HR will mostly care for the company if something goes wrong, but there is not much I can do from my side at the moment other than wait. I am keeping my fingers crossed that the curtailment is actually part of the transfer, that as the old sponsor license is no more so it would make sense to cancel the leave under it, and that I will get it "transferred" to the new one.
Would be terrible losing my job as I am just 5 months away from ILR (my first job in UK was an ICT from Feb. 2009) and to be fair I don't have anything to return to. Also losing it due to an administrative error is a bit ... upsetting.

I will keep you updated if I receive any news from the border agency.

Althalus · Post by **Althalus** » Fri Jul 19, 2013 1:40 pm

Terribly sorry to bother you again, but I still have some questions:

1- How long does it usually take for a caseworker to reply back? Could it happen he will not be bothered to reply at all? Just asking because it's Friday, and we have not heard anything back from him since we emailed him on Monday. Not even an acknowledgment of receipt.
Actually, we have not heard anything from UKBA at all.

2- I know you have mentioned this above, but I'd like to confirm I am alright.
Can I *remain* in the country after 01 Sep for 28 days without being considered an overstayer? Or would I need to file a new application and have it in consideration, to be able to remain past 01 Sep?
Why do I ask this? My main concern I will not get enough time to arrange everything, in the unlikely event UKBA decides to confirm my leave curtailment - more so if they confirm it just a few days before 01 Sep.

3- The letter asked me to send my passport and return the biometric card to them. Should I do this? Or should I disregard it considering the letter is probably wrong due to the visa transfer process? I have read they sometimes keep the passport and only return it at the airport when the immigrant leaves.
Assuming the worst, wouldn't that be a problem if I wanted to apply under a new sponsor? (such as my company's)

Thanks.-

Post by **manci** » Fri Jul 19, 2013 6:58 pm

It is the holiday season. In addition to emailing also fax, post and try to phone. The employer should also keep phoning the helpline.

After 1 September you will be an overstayer but overstaying up to 28 days is disregarded when applying for leave to remain, see Immigration Rule 245HD(p). However, if you apply as an overstayer and the application is refused you will not get a right to appeal.

Not sure how knowledgable your HR is but it may be advisable for them to seek professional help from an immigration.solcitor. This is a rather complicated case and without knowing all the facts and seeing the documents it is not possible to get specific advice on a forum like this - this applies to your Q3

tonbwor · Post by **tonbwor** » Wed Jul 24, 2013 1:01 pm

Hi There

If someone helps me with revocation of license. I am currently on Tier 2 general visa and I was granted visa until 30 Jul 15.

But recently, UKBA has issued a letter to my employer for revocation on the cease trading ground that they have found out our company has dissolved on register of company office. But that was wrong decision as we just transferred our register office to another country and trade is still continuing in UK as before. This is our sincere mistake to inform them this changes.

My question is can they reverse this revocation decision if we can prove the evidences of our genuine trading. What can happen to my visa? I am really devastated as it will be difficult to find new sponsor in this short period.

Now my employer has hired a lawyer to write a request letter to reinstate the license on their behalf. Can it work? What can happen?

Could someone can advise me if they have or hear the same scenario like me?

Many thanks. I would be very grateful.
Kind regards,

Post by **manci** » Wed Jul 24, 2013 7:10 pm

please don't hijack and duplicate posts.

Althalus · Post by **Althalus** » Mon Jul 29, 2013 7:45 pm

Just a quick update. After waiting 2 weeks in vain for any response from UKBA, I will be seeing a solicitor from London tomorrow.

The only issue is I spoke to HR today and they have mentioned what they must have thought were "minor details", and had left them out from me.
It turns out there were two attempts to get a sponsorship license. The first one was done within the 28 days, and was valid but later refused.
Second one was successful but was outside this 28 days.
They seem to think valid application within the 28 days is enough, not necessarily approved or refused. And the auditor has told them and reassured them several times even if the second attempt was outside the 28 days, it should not be a problem for me to get my visa transferred to the new company.

So I guess that's where the curtailment comes from. Rule 753 from the sponsorship guidance link you've mentioned above. I've shown this rule to them today and I hope they will show it to the auditor.
Still no response from the caseworker who curtailed my visa.

I really don't relish the prospect of having to go to court to ask for discretionary leave/whatever else the solicitor might come up with.. And I don't want to have to abandon my career and the life I have come to love due to a silly administrative mistake..

In your experience, do you think the auditor could be right? And UKBA be a bit flexible and transfer me some time within this month? I will post an update after I've gone thru the consultation appointment..

Althalus · Post by **Althalus** » Mon Aug 05, 2013 10:52 am

Good news! UKBA has today confirmed the curtailment was done in error as an internal miscommunication regarding the TUPE transfer.

As they have some sort of internal problems to sort out, they can't reinstate the leave immediately, but they have confirmed they will be doing it next week and then come back to us when it's finally been sorted out!

Thanks for your help, Manci!

Althalus · Post by **Althalus** » Thu Aug 22, 2013 12:03 pm

Just a quick update.

UKBA has still not deemed to revert the curtailment. I am 9 days away from becoming an overstayer aka *ILLEGAL* (past the 60 days I was given to sort everything and leave), and all I have is an email from someone stating the curtailment was an error and that they are looking into reverting it.

It's funny a couple of days ago we contacted UKBA for the millionth time, and now they have said that, due to some "internal changes", they first have to undergo some "Home Office checks" before actioning the reversal - which have not cleared yet and that's the reason behind the delay... They also stated they would action the reversal as soon as those checks clear, and that they are keeping an eye on my leave expiration date - however, I am quite concerned about these "checks"... what is there to check? Everything was ok when they curtailed it. At the beginning August they had said the reversal would be done within a week!

Are these standard checks? Or could they be delaying tactics on their part, considering they have been giving conflicting advice for months now?

I am extremely concerned because, even if I started preparing a move out of the country, it's going to take me 3/4 weeks to do... so I'll be illegal for several weeks before I manage to sort everything out. And I can't sort out most of my stuff IF I don't have a confirmation I have to leave! Can't do most of them "just in case"...

Could it be they will give me a new 60 days from their decision, if it's not favourable? Considering they have first said it was an error, via email? Or is it normal for them to take up to the last minute to revert it?

EDIT: Never mind, they have confirmed the reversal just now! Thanks!

Post by **manci** » Thu Aug 22, 2013 2:29 pm

I would send a strongly worded email to the caseworker referring to their email, which you have taken as read, that the curtailment was in error and would they please send their written confirmation of the reversal of the curtailment decision asap as it is unreasonable not to have this confirmation xx days before the end date in the original curtailment decision.

Don't leave this to HR, send it yourself.

Althalus · Post by **Althalus** » Thu Aug 22, 2013 3:15 pm

Hi Manci,

Just to let you know they have confirmed the reversal of the curtailment one hour ago, and will be sending me a letter with their decision, which should arrive in the following days.
So this story has a happy ending after all.

But yes, it's not really reasonable to have to wait for a confirmation and still be waiting till a few days before becoming an illegal. If things have gone the other way, there is no way in hell I would have been able to leave in 9 days..

Once again, thanks for all your help!

priyanka03 · Post by **priyanka03** » Thu Oct 03, 2013 9:42 am

Hi,

I need your urgent advice on VISA please as I have the same situtation as yours.

I have been tube to the new company on 1st August and the new company applied for the sponsorship on 5th August (well under 28 days) and they have received a A rated sponsorhip on 28 the september.

Could you please explian how did your HR people informed the home office about the transfer of employee from old company to the new company under the TUPE Process please.
did you applied for the new visa? or did you fill you the change of circumstances form?
Do we have to get the BRP card updated so it reflects the new sponsorhip licence number ??
do we have get the new COS assigned from the new company?

sorry to ask you so many questions but if you can please help and advice or you can contact me on my email priyanka0313@hotmail.com if possible.

Post by **manci** » Thu Oct 03, 2013 11:09 am

Your post is totally unrelated to the topic you tagged it on to.
START A NEW TOPIC
All your questions are answered in the T2 sponsor guidance, search for the word TUPE:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

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Tier 2 - Curtailment of leave

Tier 2 - Curtailment of leave

Visa - TUPE process - Urgent