Post
by Mr Rusty » Thu Feb 12, 2009 1:48 pm
[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.