Notice Period and ILR

rakeshathukattu · Post by **rakeshathukattu** » Mon Sep 10, 2018 8:08 am

Hi

I will be applying for ILR soon and during my stay, I had changed sponsors and I am in the situation below:

1)I resigned the Job with my first sponsor after applying and receiving my BRP to work for the new sponsor.

2)After resigning I was required to serve my notice period of 3 months with my first sponsor.

3)My old Tier 2 Visa (with the first sponsor's CoS) still had validity for another 6 months when I received my new BRP (With the new CoS)

4)I started working for my new sponsor after 76 days of receiving my BRP - so I basically served 76 days of notice period with my previous sponsor after receiving my new BRP before joining the new sponsor

Will this affect my ILR application?

Thank you.

madnanali · Post by **madnanali** » Mon Sep 10, 2018 8:22 am

You must provide a letter from employee which must be align with ILR guidance and must state that "required in the position for the foreseeable future". So here which employer will provide it? I believe your new employee will able to provide it.

rakeshathukattu · Post by **rakeshathukattu** » Mon Sep 10, 2018 9:10 am

Hi, thanks for your reply.

Yes I will get all documents from my current sponsor. That is not a problem.

My question is, Whether the fact that I had to serve my notice period with my previous employer after I received BRP to work for my current employer will affect my Chances of succeeding in ILR.

Thanks!

Djsuccess · Post by **Djsuccess** » Mon Sep 10, 2018 6:12 pm

rakeshathukattu wrote: ↑
Mon Sep 10, 2018 9:10 am
Hi, thanks for your reply.

Yes I will get all documents from my current sponsor. That is not a problem.

My question is, Whether the fact that I had to serve my notice period with my previous employer after I received BRP to work for my current employer will affect my Chances of succeeding in ILR.

Thanks!

Technically, you worked illegally for your previous employer because they were no longer your sponsor during the notice period (especially for such a long time as 3 months). It not uncommon for people to serve notice period, so this is one of the grey areas I guess. However, notice period is not an immigration issue but a matter of contract /labour law. One way this could have been handled was that your new employer should have used the sms to notify HO about your delayed resumption.
were you paid the appropriate salary and taxed during the notice period?

It might not be an issue. I will allow others to add more comments

Lynz1988 · Post by **Lynz1988** » Mon Sep 10, 2018 7:24 pm

It seems really straightforward to me as I would imagine this is a normal circumstances if an employee switches jobs, obtains a new visa and THEN hands in their notice but is required to work their notice period. As long as you weren't working for both employers/sponsors at the same time during your notice period, or your previous employer cancelled your CoS but you continued working for them, don't see how this is an issue? (and even if the first instance were true and they were the same SOC code and you were doing job #2 up to 20 hours/week (I think that's the stipulation) then it still wouldn't be an issue). Maybe I've read it wrong or something but seems straightforward.

rakeshathukattu · Post by **rakeshathukattu** » Fri Sep 14, 2018 1:45 pm

Thanks all for your responses.

I Resigned from the company Immediately after I got the new BRP(with my new company) and then was put on Notice during which my previous leave to remain was not removed by my employer while they were consulting with their immigration adviser.
As soon as they received a response from their adviser they asked me to leave immediately at which point (2months from my resignation date) they probably cancelled my CoS.
I started with my new employer the next day.

So, At no point did I work for Both Employers.

My employer paid all taxes and I have P60's and salary slips for all this duration.

I hope this is more clear?

Yes, This is quite the grey area as I can't find a clear guidance around this anywhere.

What are your thoughts?

Thanks!
Rakesh

zimba · Post by **zimba** » Fri Sep 14, 2018 2:40 pm

You can only continue working for your previous sponsor until the start date on your new Certificate of Sponsorship, provided your previous leave is not expired, otherwise you will be breach of the Tier 2G rules. This is clear in Tier 2G guidance document.
You need to check whether this was the case for you

Akorotaeva · Post by **Akorotaeva** » Fri Sep 14, 2018 3:18 pm

Zimba wrote: ↑
Fri Sep 14, 2018 2:40 pm
You can only continue working for your previous sponsor until the start date on your new Certificate of Sponsorship, provided your previous leave is not expired, otherwise you will be breach of the Tier 2G rules. This is clear in Tier 2G guidance document.
You need to check whether this was the case for you

The OP states that the previous BRP still has 6 months validity, so they should be fine.

zimba · Post by **zimba** » Fri Sep 14, 2018 4:20 pm

With a new visa and a new BRP, technically you have a new sponsor however you can continue to work for the previous one until the CoS start date after which you can only work for the new sponsor.

rakeshathukattu · Post by **rakeshathukattu** » Sun Sep 16, 2018 10:37 am

Hi All,

I have been Researching more and apparently, my current employer can add a Note in the Sponsorship Management System stating what my actual start date was. And since I moved Jobs in 2015 they could still add a note saying My start date was 54 days after what was mentioned in the CoS.

I understand that after the change in rules in 2018 they have limited this to 28 days but I think this wouldn't apply to me as my case was from 2015.

What are your thoughts?

Thank you.
Rakesh

zimba · Post by **zimba** » Sun Sep 16, 2018 7:20 pm

Read this: https://assets.publishing.service.gov.u ... _final.pdf

rakeshathukattu · Post by **rakeshathukattu** » Sun Sep 16, 2018 7:32 pm

Hi Zimba,

Thanks for your reply

From the document I Quote:
"23.9
The start date given on the CoS must be the date that the migrant is expected
to start working for you at the time the CoS is assigned.
If such start date for a Tier 2 (General) migrant is subsequently changed after
leave has been granted, it must be within 28 days from the later of:
• the date on which their entry clearance or leave to remain is granted
• the start date on their CoS (taking into account any changes to start date
properly reported before leave is granted)"

This amendment has been done in 2018.

I moved Jobs in 2015 when the 28 day rule was not specified. I joined the new sponsor 54 days after the start date on my CoS so can they add a note explaining this in the SMS?

What are your thoughts?
Thank you.
Rakesh

Lynz1988 · Post by **Lynz1988** » Sun Sep 16, 2018 7:43 pm

rakeshathukattu wrote: ↑
Fri Sep 14, 2018 1:45 pm
Thanks all for your responses.

I Resigned from the company Immediately after I got the new BRP(with my new company) and then was put on Notice during which my previous leave to remain was not removed by my employer while they were consulting with their immigration adviser.
As soon as they received a response from their adviser they asked me to leave immediately at which point (2months from my resignation date) they probably cancelled my CoS.
I started with my new employer the next day.

So, At no point did I work for Both Employers.

My employer paid all taxes and I have P60's and salary slips for all this duration.

I hope this is more clear?

Yes, This is quite the grey area as I can't find a clear guidance around this anywhere.

What are your thoughts?

Thanks!
Rakesh

Hmmm. I'm SURE there are other people who have switched employers and been in the same boat with notice period. I would be interested to find out what the answer is...I guess the best thing to do for peace of mind would be to contact an immigration advisor/lawyer.

For me, I lost my job and my first employer waited my notice (which was 1 month) + 10 days to cancel my CoS and about 2.5 weeks later had landed a new job (so by the time I got my new CoS and BRP in hand, about 30 days had gone by and am thankful the 60 day employment gap rule is gone...so I'm the opposite to you!!)

Djsuccess · Post by **Djsuccess** » Sun Sep 16, 2018 10:19 pm

rakeshathukattu wrote: ↑
Sun Sep 16, 2018 7:32 pm
Hi Zimba,

Thanks for your reply

From the document I Quote:
"23.9
The start date given on the CoS must be the date that the migrant is expected
to start working for you at the time the CoS is assigned.
If such start date for a Tier 2 (General) migrant is subsequently changed after
leave has been granted, it must be within 28 days from the later of:
• the date on which their entry clearance or leave to remain is granted
• the start date on their CoS (taking into account any changes to start date
properly reported before leave is granted)"

This amendment has been done in 2018.

I moved Jobs in 2015 when the 28 day rule was not specified. I joined the new sponsor 54 days after the start date on my CoS so can they add a note explaining this in the SMS?

What are your thoughts?
Thank you.
Rakesh

Such a long delay in resumption should have been reported immediately. I don't what the impact will be on your sponsor as they failed to report it since 2015. It might not be an issue, I guess you might never know until you submit your application. I wish you all the best

rakeshathukattu · Post by **rakeshathukattu** » Mon Sep 17, 2018 4:04 pm

I spoke to the Immigration specialist in my company and they advised me that they will add a Sponsor's note in the SMS stating my actual Joining date and that it's not a problem.

I will have to wait and see how this pans out.

Thanks for all your comments. will keep you all posted.

Rakesh

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