Tier 2 General to ILR complication

[newjoiner86]

Hi All,

First of all I'd like to state some facts to clarify my situation. It would be great if you guys can shed your opinion on my situation in terms of my intended ILR application next year.

First Tier 2 granted: 15/05/2013

Last day at work with my first employer: 18/09/2015

Next Tier 2 Application Date: 05/01/2016

Now obviously the gap between the above two dates exceeds 60 days. I would also like to mention that during this time I did not get any curtailment of leave letter and my original Tier 2 G visa was still valid until August 2016.

I found a new job within a month and the application would have gone through within the 60 days period, however, my new employer had made an error in the job posting they originally advertised which was only discovered once the 28 days had passed. The firm that was handling my visa application advised my firm to re-advertise the role which basically caused a further delay of 28 days for the Resident Labour Market Test (RLMT) due to which the application date got much delayed.

In addition to the above I would also like to mention that during the Tax year 2015/2016 where I had this gap in employment, my earnings for the year still is above the threshold of my SOC code.

After going through several posts on this forum it seems that an ILR application with a gap in employment can lead to both a rejection and approval. I understand that the case worker guidelines do suggest that the gap shouldn't be of more than 60 days, however, there have been cases where people did get their application approved with gaps of more than that.

Apologies for the long post. Coming to my questions,
1. Can anyone share their experience of an Admin Review or Judicial Review in case they were rejected for a similar issue?
2. The employment history from HMRC only gives the NI/Tax contributions for each year without exact dates of joining/leaving. So if the NI/Tax contributions are significant enough to meet the SOC threshold, would the gap still be apparent to the case worker?
3. Do you think it's a better idea to mention the circumstances that led to the delay in my next T2G application? Or just skip it completely and provide the recent P60s/Payslips/Bank statements and skip the earlier years?

Thanks in advance for your feedback on this.

[CR001]

After going through several posts on this forum it seems that an ILR application with a gap in employment can lead to both a rejection and approval. I understand that the case worker guidelines do suggest that the gap shouldn't be of more than 60 days, however, there have been cases where people did get their application approved with gaps of more than that.

The 60 days employment gap is written in the Immigration Rules Part 6. There was recently an ILR refusal for a gap of 69 days. Not sure what successful cases you are referring to, perhaps you can provide the links.

There are two separate 60 days processes and they are not related.

1. 60 days employment gap, which is written in the immigration rules. This is calculated from the date of your last employment to the date of a new application submission. A gap of more than 60 days is highly likely to result in a refusal for ILR.

2. 60 days curtailment letter takes a couple/few of months to be sent out (across all visa categories and is not specific to Tier 2) and this letter basically reduces the validity of your visa (if it is valid for more than 60 days) and you must either make an application within this time or leave at the end of the 60 days. It effectively tells you that after 60 days from date of the letter, your visa will be cancelled and you will be an overstayer.

[newjoiner86]

After going through several posts on this forum it seems that an ILR application with a gap in employment can lead to both a rejection and approval. I understand that the case worker guidelines do suggest that the gap shouldn't be of more than 60 days, however, there have been cases where people did get their application approved with gaps of more than that.

The 60 days employment gap is written in the Immigration Rules Part 6. There was recently an ILR refusal for a gap of 69 days. Not sure what successful cases you are referring to, perhaps you can provide the links.

Here is the link to the thread that I was referring to:

indefinite-leave-to-remain/tier-2-to-il ... 10528.html

Apparently the user JoeLawerence2 had his application approved even though there was a gap in employment.

Also, does anyone have any experience of an Admin Review or a Judicial Review in case of a rejection on this issue? I'm quite confident that a valid case can be made if you have mitigating circumstances especially in a judicial review.

[newjoiner86]

After going through several posts on this forum it seems that an ILR application with a gap in employment can lead to both a rejection and approval. I understand that the case worker guidelines do suggest that the gap shouldn't be of more than 60 days, however, there have been cases where people did get their application approved with gaps of more than that.

The 60 days employment gap is written in the Immigration Rules Part 6. There was recently an ILR refusal for a gap of 69 days. Not sure what successful cases you are referring to, perhaps you can provide the links.

There are two separate 60 days processes and they are not related.

1. 60 days employment gap, which is written in the immigration rules. This is calculated from the date of your last employment to the date of a new application submission. A gap of more than 60 days is highly likely to result in a refusal for ILR.

2. 60 days curtailment letter takes a couple/few of months to be sent out (across all visa categories and is not specific to Tier 2) and this letter basically reduces the validity of your visa (if it is valid for more than 60 days) and you must either make an application within this time or leave at the end of the 60 days. It effectively tells you that after 60 days from date of the letter, your visa will be cancelled and you will be an overstayer.

Hi Char (CR001)
Did you get a chance to have a look at the thread I posted in my post above? Any views on that?

Thanks

[CR001]

It was over a year ago and he might have just been lucky. He has not posted or responded to members questions but it is possible that his employer delayed notifying HO.

As far as I can remember, there have been no successful ILR applications this year with more than 60 days gap, one member had a gap of 69 days and they were refused and another had a gap of roughly 80 days and also refused.

[newjoiner86]

It was over a year ago and he might have just been lucky. He has not posted or responded to members questions but it is possible that his employer delayed notifying HO.

As far as I can remember, there have been no successful ILR applications this year with more than 60 days gap, one member had a gap of 69 days and they were refused and another had a gap of roughly 80 days and also refused.

OK Thank you for the response. Do you know if any of those who get rejected due to this gap issue filed for an admin review or judicial review? What was the outcome.

Also, would HO check the employment history from HMRC to check the last date of employment at previous employer or they would have their own record with this information?

Thanks

[CR001]

Also, would HO check the employment history from HMRC to check the last date of employment at previous employer or they would have their own record with this information?

Yes.

indefinite-leave-to-remain/ilr-approval ... 42185.html

indefinite-leave-to-remain/tier-2-to-il ... 28424.html

indefinite-leave-to-remain/ilr-refused- ... 22144.html

[newjoiner86]

Also, would HO check the employment history from HMRC to check the last date of employment at previous employer or they would have their own record with this information?

Yes.

indefinite-leave-to-remain/ilr-approval ... 42185.html

indefinite-leave-to-remain/tier-2-to-il ... 28424.html

indefinite-leave-to-remain/ilr-refused- ... 22144.html

Hi CR001, Moderators,

I have just received a fast track SAR from HO and I don't see any notification provided to HO by my previous employer regarding the last day of my prior employment. Additionally, I have also requested for a full SAR (the paid one) to ensure that is indeed the case.

Supposing the HO have not been notified of the last day of employment, do you think there's a chance for an approval?

The main issue I'm thinking about now is that my Tax and NI contributions during that year are obviously less compared with other years due to the employment gap. Having said that, my annual salary for that year is still more than the minimum threshold of the SOC code as well as minimum salary requirement for ILR.

Thanks!

[zimba]

As repeated several times this has nothing to do with Employer notifying the HO. HMRC data is accessible to caseworkers (PAYE submissions made by your previous employer show your last day of work). Please stop applying for SAR and all that stuff