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Switching, cancelling the switch, then switching again

Only for the UK Skilled Worker visas, formerly known as Tier 2 visa route

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exxtreme_croquet
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Australia

Switching Tier 2 without notice period

Post by exxtreme_croquet » Sat Dec 28, 2019 2:31 am

Hi all,

My plan is to switch to a new Tier 2 job from my current Tier 2 job.

Unfortunately, upon re-reading my contract, I discovered a rather nasty little clause, which may throw a spanner in the works:

"The Company may terminate your employment with immediate effect by notifying you that the Company is exercising its right under this clause and that it will make within 28 days a payment in lieu of notice (Payment in Lieu)."

This basically means that the company can fire me at any time without notice and I would have to leave the UK immediately, without any hope of returning for at least 2 years!

The only possible way, then, that I could take up a new job is to either

A) begin the new job on the immediate next day following the date that the first company terminates my contract, without knowing whether the first company will terminate me, upon me giving them notice
B) begin the new job exactly one month after the date that I give the first company notice, assuming that they decide not to fire me, but instead, are willing to honour the 1-month notice period.

It's confusing, because immediately before this paragraph, there is a different paragraph, which states:

"The length of notice which you are entitled to receive to terminate your employment is one month within the agreed six-month probationary period"

So I don't understand how I can be entitled to receive one month of notice, but simultaneously, the company can terminate me immediately.

It seems like the reality is that I have to give them one month notice, but they can fire me anytime they like, even tomorrow if they want!

Is it really that harsh?

Can anyone recommend a course of action whereby I might be able to move to a new job under Tier 2, without completely losing the visa because the first company sacks me before I have a chance to start at the next company?

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CR001
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Re: Switching Tier 2 without notice period

Post by CR001 » Sat Dec 28, 2019 10:19 am

Unfortunately, upon re-reading my contract, I discovered a rather nasty little clause, which may throw a spanner in the works:

"The Company may terminate your employment with immediate effect by notifying you that the Company is exercising its right under this clause and that it will make within 28 days a payment in lieu of notice (Payment in Lieu)."

This basically means that the company can fire me at any time without notice and I would have to leave the UK immediately, without any hope of returning for at least 2 years!
It does clearly state that it will be payment in lieu of notice. Why do you believe you have 'no hope of returning for at least 2 years'???
A) begin the new job on the immediate next day following the date that the first company terminates my contract, without knowing whether the first company will terminate me, upon me giving them notice
When you start a new job is WHOLLY dependent on a CoS and visa start date of the tier 2 for the new Tier 2 sponsor. You cannot work for another employer on your current visa.
B) begin the new job exactly one month after the date that I give the first company notice, assuming that they decide not to fire me, but instead, are willing to honour the 1-month notice period.
Same as above #A.
It's confusing, because immediately before this paragraph, there is a different paragraph, which states:

"The length of notice which you are entitled to receive to terminate your employment is one month within the agreed six-month probationary period"

So I don't understand how I can be entitled to receive one month of notice, but simultaneously, the company can terminate me immediately.
It does state in the para you first quoted that it would be payment in lieu.
It seems like the reality is that I have to give them one month notice, but they can fire me anytime they like, even tomorrow if they want!
Is it really that harsh?
It is normal in the UK to work this way because the employer will pay you out for the notice period instead of having you work the notice period.
Can anyone recommend a course of action whereby I might be able to move to a new job under Tier 2, without completely losing the visa because the first company sacks me before I have a chance to start at the next company?
Why do you believe you will instantly lose your current visa??? You won't. Only Home Office can cancel your visa not your employer.

You seem to think that you can work for any employer on your current visa. This is strictly not the case.
Char (CR001 not Casa)
In life you cannot press the Backspace button!!
Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

exxtreme_croquet
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Posts: 7
Joined: Sun Apr 15, 2018 7:36 pm
Australia

Re: Switching Tier 2 without notice period

Post by exxtreme_croquet » Sun Dec 29, 2019 12:52 am

CR001 wrote:
Sat Dec 28, 2019 10:19 am
It does clearly state that it will be payment in lieu of notice. Why do you believe you have 'no hope of returning for at least 2 years'???
Ok so I did a bit more research and I think I was mistaken.

Basically it looks like even if there's a gap between the last day I come into work and the start date on the new job, as printed on the visa (assuming I succeed in getting it) I would still be entitled to reside within the UK during that gap period.

My main concern was that the UK government would not allow any gap between jobs, but my understanding from the research is that you can stay in the country as long as you have a visa and a job, even if there's a small gap between jobs.

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CR001
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Re: Switching Tier 2 without notice period

Post by CR001 » Sun Dec 29, 2019 8:17 am

Correct. There is no employment gap limit anymore, used to be 60 fays. It was removed a couple of years ago.
Char (CR001 not Casa)
In life you cannot press the Backspace button!!
Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

exxtreme_croquet
Newly Registered
Posts: 7
Joined: Sun Apr 15, 2018 7:36 pm
Australia

Switching, cancelling the switch, then switching again

Post by exxtreme_croquet » Sun Dec 29, 2019 1:24 pm

So I am currently working for company A on Tier 2.

I am in the hiring process with company B, intending to switch the Tier 2 to company B, and I believe they may have submitted my visa application already (have to check that with their attorney though).

However, I have recently received an offer from company C, who are giving me a much better deal in terms of hours and pay.

Would it jeopardise my chances of switching if I were to cancel the company B switching application and then commence a switching application with company C?

All of this is being handled by immigration attorneys at both companies, so I'm not directly involved. But I'm just curious if I'm taking a risk here by cancelling the company B and instead switching to company C.

I would prefer to leave company A in any case, but if there's a way to minimise the risk of not getting approved to switch to company C, then I want to do that.

I'm thinking of maybe just going with company B for now, then after I've worked there say 1 month or so, then switching to company C. Might that be a safe strategy?

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CR001
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Re: Switching, cancelling the switch, then switching again

Post by CR001 » Sun Dec 29, 2019 1:29 pm

No risk but you cannot get a CoS from company C until company B has withdrawn their CoS. You can't have 2 active CoS in your name.
Char (CR001 not Casa)
In life you cannot press the Backspace button!!
Please DO NOT send me a PM for immigration advice. I reserve the right to ignore the PM and not respond.

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