Tier 2 to ILR - delay on start date
Posted: Sat Jan 26, 2019 7:52 am
Hi all, I am about to apply ILR in March, however I am very concerned about one thing, any advice would be very appreciated!
These are the key dates in the past 5 years:
visa | Visa valid from | CoS start date | Actual start date | last date at work
PSW | null | null | null | 17/01/2014
Tier 2 | 19/12/2013 | 16/12/2013 | 19/03/2014 | 29/04/2016
Tier 2 | 21/04/2016 | 23/05/2016 | 23/05/2016 | 31/10/2016
Tier 2 | 30/10/2016 | 03/01/2017* | 05/01/2017 | null
*originally 21/12/2016, then update to 03/01/2017 on sponsor's note
My first Tier 2 visa was issued on 19th December 2013. But I did not actually started the job until 19th March 2014. So there is a 3 month gap. I heard that this is actually not allowed: https://assets.publishing.service.gov.u ... _v1.0_.pdf
In this document page 98 (paragraph 23.9) it says:
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)
The last sentence means employer should update the start date if need to.
The thing is I have no idea about this restriction at all back in 2014. And this document is for sponsors, as an employe I should not be expected to have this knowledge neither. Also while the start date on the CoS is 16th December 2013, I only signed the offer letter on 17th December 2013, and resigned after signing the contract, and served a month of notice period, then went abroad for a holiday before starting the job. There was no way I can actually started the job on the date written on the CoS -- I did not even officially accept the job yet. It may be the HR person just randomly pick up a date back then to fill in the CoS form, and did not bother to update it afterwards. And from my side I have no idea that this need to be updated -- it is not an employee's responsibility to have this knowledge.
I also notice that this particular document was first published on Jan 22nd 2014 (https://www.gov.uk/government/publicati ... rs#history). This requirement may not even exist when my CoS was issued, so the HR may not be aware of it at all. If it is a new requirement that was made in the last few years, would it have any retroactive effect? How can I check when this requirement was introduced?
Also my first salary from the first tier 2 sponsor was in the end of April 2014, which means I do not have a P60 for 2013-2014. Should I wait until April 2019 so I have one more P60 from my current company?
Would all of these affect my application at all? And what should I do about it?
Sorry for such a long post. To summarise, my questions are:
1) It's the employer's responsibility to update the cos start date, but my previous employer did not. Would this affect my application?
2) when was this restriction about start date introduced? If it was introduced after 2014, would it have retroactive effect?
3) should I mention all of these in my application at all? If the case worker has any doubt about it, any chance I can talk/explain to her/him? What is the best way to prepare for the documents and when is the best time to apply?
4) If it is rejected, what options do I have?
Any suggestion to mitigate the risk, i would very appreciate it!
These are the key dates in the past 5 years:
visa | Visa valid from | CoS start date | Actual start date | last date at work
PSW | null | null | null | 17/01/2014
Tier 2 | 19/12/2013 | 16/12/2013 | 19/03/2014 | 29/04/2016
Tier 2 | 21/04/2016 | 23/05/2016 | 23/05/2016 | 31/10/2016
Tier 2 | 30/10/2016 | 03/01/2017* | 05/01/2017 | null
*originally 21/12/2016, then update to 03/01/2017 on sponsor's note
My first Tier 2 visa was issued on 19th December 2013. But I did not actually started the job until 19th March 2014. So there is a 3 month gap. I heard that this is actually not allowed: https://assets.publishing.service.gov.u ... _v1.0_.pdf
In this document page 98 (paragraph 23.9) it says:
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)
The last sentence means employer should update the start date if need to.
The thing is I have no idea about this restriction at all back in 2014. And this document is for sponsors, as an employe I should not be expected to have this knowledge neither. Also while the start date on the CoS is 16th December 2013, I only signed the offer letter on 17th December 2013, and resigned after signing the contract, and served a month of notice period, then went abroad for a holiday before starting the job. There was no way I can actually started the job on the date written on the CoS -- I did not even officially accept the job yet. It may be the HR person just randomly pick up a date back then to fill in the CoS form, and did not bother to update it afterwards. And from my side I have no idea that this need to be updated -- it is not an employee's responsibility to have this knowledge.
I also notice that this particular document was first published on Jan 22nd 2014 (https://www.gov.uk/government/publicati ... rs#history). This requirement may not even exist when my CoS was issued, so the HR may not be aware of it at all. If it is a new requirement that was made in the last few years, would it have any retroactive effect? How can I check when this requirement was introduced?
Also my first salary from the first tier 2 sponsor was in the end of April 2014, which means I do not have a P60 for 2013-2014. Should I wait until April 2019 so I have one more P60 from my current company?
Would all of these affect my application at all? And what should I do about it?
Sorry for such a long post. To summarise, my questions are:
1) It's the employer's responsibility to update the cos start date, but my previous employer did not. Would this affect my application?
2) when was this restriction about start date introduced? If it was introduced after 2014, would it have retroactive effect?
3) should I mention all of these in my application at all? If the case worker has any doubt about it, any chance I can talk/explain to her/him? What is the best way to prepare for the documents and when is the best time to apply?
4) If it is rejected, what options do I have?
Any suggestion to mitigate the risk, i would very appreciate it!