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Tier 2 visa not curtailed but employment ceased

Only for queries regarding Indefinite Leave to Remain (ILR). Please use the EU Settlement Scheme forum for queries about settled status under Appendix EU

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Leaver
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Joined: Tue Oct 28, 2014 12:50 pm

Tier 2 visa not curtailed but employment ceased

Post by Leaver » Thu Oct 30, 2014 1:01 pm

So this is a very unique situation i would imagine, still i hope some of you here had experience.

1. i had a tier 2 visa for 3 years, but after 1.5 years my epmployment with this sponsor terminated.
2. The employer didnt curtail my visa so it went on for full 3 years, Home Office did not curtail it either.
3. During the second 1.5y i held other emoployment in the UK under the EXEMPT visa.
4. THEN i went on a second Tier two visa, starting before 3 years expired from point 1 above. I am on this second Tier 2 for 2 years now, thus having 5 years of continuous Tier 2 visa stamps.

My questions is: will the employment on the exempt visa create issues?

A home office officer said it is not a problem. My common sense says it might be a problem...and its a 1200£ question i guess.

physicskate
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Posts: 1605
Joined: Tue Oct 30, 2012 10:46 am

Re: Tier 2 visa not curtailed but employment ceased

Post by physicskate » Thu Oct 30, 2014 3:12 pm

Leaver wrote:So this is a very unique situation i would imagine, still i hope some of you here had experience.

1. i had a tier 2 visa for 3 years, but after 1.5 years my epmployment with this sponsor terminated.
2. The employer didnt curtail my visa so it went on for full 3 years, Home Office did not curtail it either.
3. During the second 1.5y i held other emoployment in the UK under the EXEMPT visa.
4. THEN i went on a second Tier two visa, starting before 3 years expired from point 1 above. I am on this second Tier 2 for 2 years now, thus having 5 years of continuous Tier 2 visa stamps.

My questions is: will the employment on the exempt visa create issues?

A home office officer said it is not a problem. My common sense says it might be a problem...and its a 1200£ question i guess.
EXEMPT? What exactly was this visa exempt from? Did you work for an employer that was not your sponsoring employer?

Leaver
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Posts: 48
Joined: Tue Oct 28, 2014 12:50 pm

Re: Tier 2 visa not curtailed but employment ceased

Post by Leaver » Fri Oct 31, 2014 12:09 pm

Exempt visa is a type of diplomatic visa.

Leaver
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Posts: 48
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Re: Tier 2 visa not curtailed but employment ceased

Post by Leaver » Fri Oct 31, 2014 12:22 pm

Think organisations like the UN etc..they have "exempt" visa stamps, exempting them from immigration control.
Its a lawful leave in the UK, and yes i worked for them, during my Tier 2 sponsorhip after i left that employer.

physicskate
Diamond Member
Posts: 1605
Joined: Tue Oct 30, 2012 10:46 am

Re: Tier 2 visa not curtailed but employment ceased

Post by physicskate » Fri Oct 31, 2014 2:42 pm

Leaver wrote:So this is a very unique situation i would imagine, still i hope some of you here had experience.

1. i had a tier 2 visa for 3 years, but after 1.5 years my epmployment with this sponsor terminated.
2. The employer didnt curtail my visa so it went on for full 3 years, Home Office did not curtail it either.
3. During the second 1.5y i held other emoployment in the UK under the EXEMPT visa.
4. THEN i went on a second Tier two visa, starting before 3 years expired from point 1 above. I am on this second Tier 2 for 2 years now, thus having 5 years of continuous Tier 2 visa stamps.

My questions is: will the employment on the exempt visa create issues?

A home office officer said it is not a problem. My common sense says it might be a problem...and its a 1200£ question i guess.
Oh duh - I am an idiot! We get a lot of people on here thinking they are 'exempt' from all kinds of crazy rules...

Have had a second (ok, hundredth) look at the guidance and I found this:

"If someone is exempt from immigration control they cannot by definition be in the UK unlawfully. Therefore, if an applicant has for a period of time while in the UK held exempt status, that period is lawful.
A requirement for ILR is that an applicant must have held lawful residence in the UK that includes time spent in the UK with exempt status. Exempt status is not a grant of leave, so where the rules specifically require leave to be held, that requirement will not be met by an applicant having exempt status.
Deemed leave granted for a period of 90 days under Section 8A(b) of the Immigration Act (1971), from the day the applicant stops being exempt, can be counted towards the continuous period for ILR. For more information on this see related link: 1.2 Persons who Cease to be Exempt from Control on or after 1 March 2000 (Section 8(2) and 8(3) of the 1971 Act)
If the rules say the applicant must hold a specific category of leave, only time spent in this category will count towards the continuous period for ILR. "

So, I think you need five continuous years on Tier 2 general... Exempt status would count towards 10 year long residence, but not all categories of visa lead to ILR after 5 years, so I don't believe the leave categories can be aggregated in this case. This is all just my opinion...

Leaver
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Re: Tier 2 visa not curtailed but employment ceased

Post by Leaver » Fri Oct 31, 2014 4:46 pm

Many thanks for your effort and time taken to review this!

yes i have seen the guidance but its not clear with regards to having BOTH Tier 2 and Exempt in parallel, which is why i asked the HO staff as well

i actually DO have 5 year continous uncurtailed Tier 2 leave. My visa stamps and Subject Access Request show 5 years worth of Tier 2 visas, because my first Tier 2 visa employer did not curtail my visa once i left them in 2011.

The problem is, after leaving them, i actually held employment for 1.5years via the Exempt visa. During the same time my first Tier 2 ran.
So these two visas ran in parallel...

I imagine there werent many cases like this, so i will probably just need to put my case forward and see what happens.

Hopefully this discussion helps future applicants with a similar situation...

Leaver
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Posts: 48
Joined: Tue Oct 28, 2014 12:50 pm

Re: Tier 2 visa not curtailed but employment ceased

Post by Leaver » Fri Feb 27, 2015 12:15 pm

ILR finally approved on this basis.

Note to everyone - do not always trust the advice from immmigration consultants and law firms if they say you case is not possible.

I had two MAJOR firms refuse my application saying it is not within the rules. Even my first enquiry with the HO a year ago resulted in the offcer telling my continuous leave was broken when i took the exempt visa. Luckily i asked them again 3 months ago, and another Senior Policy Adviser picked up the case, and found a solution that everyone overlooked, to check if the Tier 2 was curtailed.

If it wasnt curtailed, even if you were not with that employer (as i wasnt for over a year) but had other legal basis of stay in the UK, this period counts towards the 5 years.

I hope this helps anyone in a similar situation in the future, good luck.

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