ILR Work Permit - Break Employment

[asad_coolsubha]

Hi
Thanks for this wonderful community!

I have a simple question. I was given a work permit in April 2008 and got made redundant in Dec 2011. My new Tier 2 was issued on 08 March 2012 even though the contract was offered on 20 Dec 2011.

Question: According to below:
http://www.ukba.homeoffice.gov.uk/polic ... les/part5/

128 B (i)
My new employment should have started within 60 days. All this time I was lawfully residing in the UK. No more than 60 days in total period of 5 years have I been outside UK as well.

Would this effect my application?

Thanks guys.

[Gagan1986]

What was the date in December you got made redundant? And when was the new visa issued with the new employer? The gap shouldn't be more than 60 days between both.

Also the date you started working with your new employer?

[asad_coolsubha]

Thanks for your reply

09 dec 2011 - date made redundant
20-dec-2011 - New job Contract offered
10-Feb-2013 - Certificate of Sponsorship issued
08-March-2013 - Tier 2 general leave to remain issued

I was hoping that since I was not illegal in staying after my employment ended until the date it got switched to a valid leave to remain I will be Ok. Someone said that since I never breached any rule of my leave, I should be fine.

cheers

[asad_coolsubha]

I was also naive in thinking that these only apply if you leave the UK?

[cs95tdg]

Thanks for your reply

09 dec 2011 - date made redundant
20-dec-2011 - New job Contract offered
10-Feb-2013 - Certificate of Sponsorship issued
08-March-2013 - Tier 2 general leave to remain issued

I was hoping that since I was not illegal in staying after my employment ended until the date it got switched to a valid leave to remain I will be Ok. Someone said that since I never breached any rule of my leave, I should be fine.

Did you mean 2012 above & not 2013? I would suggest that you make a SAR to find out when your former employer submitted NPEE to the UKBA to end your former WP LTR. It may be that your subsequent T2 leave was granted within the allowed 60 day period, even though, according to the dates mentioned above it doesn't appear to be so.

What you need to find out is whether there was a delay from when you were made redundant on 09 dec 2011 to the termination of your then WP leave. A SAR should help you do this.

[Gagan1986]

Thanks for your reply

09 dec 2011 - date made redundant
20-dec-2011 - New job Contract offered
10-Feb-2013 - Certificate of Sponsorship issued
08-March-2013 - Tier 2 general leave to remain issued

I was hoping that since I was not illegal in staying after my employment ended until the date it got switched to a valid leave to remain I will be Ok. Someone said that since I never breached any rule of my leave, I should be fine.

Did you mean 2012 above & not 2013? I would suggest that you make a SAR to find out when your former employer submitted NPEE to the UKBA to end your former WP LTR. It may be that your subsequent T2 leave was granted within the allowed 60 day period, even though, according to the dates mentioned above it doesn't appear to be so.

What you need to find out is whether there was a delay from when you were made redundant on 09 dec 2011 to the termination of your then WP leave. A SAR should help you do this.

If your last day in your old employment was 9th Dec then it won't matter when your employer notified HO. Even if they had notified HO after 9th Dec, your employer would have put the end date as 9th Dec which means your WP terminates on 9th. Also you would need a letter of absences from your previous employer which again will have an end date of 9th Dec.

As you mentioned above your new tier 2 visa was issued in mid march you exceed that 60 day rule.

[asad_coolsubha]

Hi
Thanks for the replies. Sorry for typo it was 2012 not 2013.
As I mentioned before I got certificate of sponsorship on 10feb 2012 but didn't apply by post because at that time processing was taking around 6 weeks hence I opted PEO. So why am I getting penalised for it. Having said this how does UKBA expect a person to take up new employment and not only that but have visa sorted within 60 days when their processing is around that time.

Sorry but what is npee and sco thing you mentioned?

Cheers

[asad_coolsubha]

Hi
So in essence the worst scenario is that I would have to wait another 3 months before making an application. Do you guys agree to that?

[uksettlement]

I personally think you might not be eligible as you had a break in your visa. However, best to wait for one of the gurus to confirm as I am just telling you what I infer from the rules.

[cs95tdg]

Sorry but what is npee and sco thing you mentioned?

See... http://www.immigrationboards.com/viewto ... ht=#779654

Note that at a glance from the dates you have provided, you do appear to have broken the 60 day time period allowed to change sponsors & maintain continuous residence. Whether the time allowed by the UKBA is fair or not is another matter.

If you were to meet the UKBA time constraint, your second COS would of had to have been issued earlier than it was (possibly by a request for urgent consideration from your second employer to avoid you becoming an overstayer). But that is all in the past, so there is nothing to be gained by discussing what could have been done. The reason I suggested raising a SAR is to get a clear picture of when your previous WP leave was terminated. I agree that the end result may very well be that you have broken lawful residence, but I'd personally raise a SAR to find out for sure. You may also want to seek legal guidance before you reach any conclusions as well.

Note that if the conclusion is that you broke lawful residence, then your ILR clock would be reset and it would begin from the date your subsequent T2 LTR was issued - I.e. 08-March-2012.

[asad_coolsubha]

Thanks for the replies.
I just want to clear one thing that I wasn't an over stayer as I confirmed this from UKBA helpline. They said that according to tier 2 guidance if employment ends and current visa remaining is less than 6 months (which was true in my case) then I'm allowed to stay until that leave expires. Unless that's the case, UKBA writes a letter curtailing the leave to 60 days which I never received.

Confused now.

[cs95tdg]

They said that according to tier 2 guidance if employment ends and current visa remaining is less than 6 months (which was true in my case) then I'm allowed to stay until that leave expires.

That's interesting, and something I wasn't aware of. Do you have a UKBA website reference to that piece of information to read?

[Gagan1986]

Thanks for the replies.
I just want to clear one thing that I wasn't an over stayer as I confirmed this from UKBA helpline. They said that according to tier 2 guidance if employment ends and current visa remaining is less than 6 months (which was true in my case) then I'm allowed to stay until that leave expires. Unless that's the case, UKBA writes a letter curtailing the leave to 60 days which I never received.

Confused now.

Correct, that's a separate thing and too meet the requirements to be eligible for ILR is a separate thing. You can ask your previous employer the exact details they sent to UKBA. Also submit an application for SAR report as suggested above. Note- it can take upto 2 months to get the report back

[asad_coolsubha]

Thanks.
I hope there is some kind of compassionate understanding from UKBA if I decide to apply still considering a job and a house here with family.

[asad_coolsubha]

Hi
Could you please give me a link to the thing where it states that doing the above would reset the period and you'll have to do 5 years again.

Thanks

[cs95tdg]

Could you please give me a link to the thing where it states that doing the above would reset the period and you'll have to do 5 years again.

Reading the following continuous residence guidance may help you understand what constitutes as a break in continuous residence. See Pages 12-13 http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Note that if there is a break in continuous residence, that in effect means that your ILR residence period will be reset to begin from the next valid EC or LTR grant in the UK.

[asad_coolsubha]

Thanks a lot for this information.

Where it says that 28 days overstaying may be allowed .....I think it means that it means 60 days plus 28 days. If this is the case then from 09 December to 08 march break in employment should not be an issue........ is it?

[cs95tdg]

I would read those two statements seperately as they serve two difference purposes. I don't believe that the two numbers are supposed to be added together as you have done. The first is intended for those applying for ILR under any economic migrant category, while the second is only for those who are switching sponsors (& is intended as a time concession to enable transition from one sponsor to another).

1) Upto 28 days of overstay will be disregarded.
2) Where the applicant has a break in employment and applies for further leave as a Tier 2 migrant or a work permit holder to work for a new sponsor or on a new work permit within 60 days of the end of the employment with the previous sponsor or permitted employer, such a period may be disregarded for ILR.

My advice to you would be to make a SAR to understand the specifics and also seek legal advice. While we all attempt to help, to best of our ability & self-read knowledge on this forum, no one here (as far as I'm aware) can be considered an immigration expert. So if you are worried (because your application cannot be strictly categorised as straight-forward) and would like definite answers to your specific circumstances, then seeking legal advice would be a good option.

[Gagan1986]

[quote="cs95tdg"]I would read those two statements seperately as they serve two difference purposes. I don't believe that the two numbers are supposed to be added together as you have done. The first is intended for those applying for ILR under any economic migrant category, while the second is only for those who are switching sponsors (& is intended as a time concession to enable transition from one sponsor to another).

Correct, these are two separate things and cannot be clubbed together to add the missing days. I am sure you have got a clear idea what we are getting at. Good luck

[asad_coolsubha]

Thanks a lot for your help guys. Specially to the guru. I think the only option would be to split and try to make them understand that I could have applied within 60 days as I got cos but did not because it was taking 6 to 8 weeks in postal application hence spending more money and making a PEO appointment, which is the truth.

About sar, I think it's a good idea but I'm only afraid that they might start looking at the dates more closely and when I do go, they start scrutinising me for it.

Thanks a lot guys for your time.

Cheers

[Gagan1986]

Thanks a lot for your help guys. Specially to the guru. I think the only option would be to split and try to make them understand that I could have applied within 60 days as I got cos but did not because it was taking 6 to 8 weeks in postal application hence spending more money and making a PEO appointment, which is the truth.

About sar, I think it's a good idea but I'm only afraid that they might start looking at the dates more closely and when I do go, they start scrutinising me for it.

Thanks a lot guys for your time.

Cheers

SAR report has nothing to do with your application. You don't have to submit that report anywhere and there is a completely different department who collects this info and prepare a file. This report is just for your own sake to give you an idea where you stand

[asad_coolsubha]

thanks for your reply.

[asad_coolsubha]

Just came across this

http://www.immigrationboards.com/viewto ... a74147b6e8

This was exactly my situation and this was exactly what I was told by quoting the old tier 2 guidance (which has changed now) that i won't be illegal and I would be ok to find another country without breaking the ILR things.

This is so confusing, they (UKBA) have left quite a few questions unanswered

[asad_coolsubha]

Hi
You were all correct. I went for PEO in liverpool and they refused my application of the 60 days rule.
Even though they accept that the certificate of sponsorship was issued within 60 days, the application for further leave was not made within 60 days.

The only reason I didn't go for postal application was that it was taking too much time so I went for PEO appointment. That appointment with UKBA was made BEFORE COS was issued. In my opinion it was a procedural wait rather than me not applying within 60 days.

Do you guys think that I have some grounds on this reason for reconsideration/pre-action protocol.

Thanks in anticipation