Tier 2 and Secondment + Tier 2 and TUPE

[usa64]

Dear Manci,

I am in a tricky situation and need advice. I am currently working in a law firm on tier 2 visa. Some of the partners in the company are moving out of the firm and starting their own firms. However, before starting on their own they need permission from regulatory authority which would take a couple of months. My current employer has agreed that I can join the new company and until they get the permission from the regulatory authority and get the sponsorship licence I can work as a secondee with the new company. I will still be an employee of the current firm. Will the home office permit this?

The second question is once the new firm gets permission from the regulatory authority and also get the sponsorship licence then will I be able to join them under TUPE transfer at that stage so that the RLMT can be avoided? or will it be treated as if I am joining a new firm? I would really appreciate if you could provide assistance in this matter.

Thanks.

[usa64]

Hello,

I am in a tricky situation and need advice. I am currently working in a law firm on tier 2 visa. Some of the partners in the company are moving out of the firm and starting their own firms. However, before starting on their own they need permission from regulatory authority which would take a couple of months. My current employer has agreed that I can join the new company and until they get the permission from the regulatory authority and get the sponsorship licence I can work as a secondee with the new company. I will still be an employee of the current firm. Will the home office permit this?

The second question is once the new firm gets permission from the regulatory authority and also get the sponsorship licence then will I be able to join them under TUPE transfer at that stage so that the RLMT can be avoided? or will it be treated as if I am joining a new firm? I would really appreciate if anyone could provide assistance in this matter.

Thanks.

[manci]

Dear Manci,

I am in a tricky situation and need advice. I am currently working in a law firm on tier 2 visa. Some of the partners in the company are moving out of the firm and starting their own firms. However, before starting on their own they need permission from regulatory authority which would take a couple of months. My current employer has agreed that I can join the new company and until they get the permission from the regulatory authority and get the sponsorship licence I can work as a secondee with the new company. I will still be an employee of the current firm. Will the home office permit this?

secondment is allowed provided your existing sponsor continues to pay your salary and remains responsible for you vis-à-vis the home HO (reporting and record keeping duties). You will not be "joining" the new company, you will be seconded to them. The present sponsor has to report your new work location via the SMS. There should be a secondment agreement in place between the two companies and this should be put in your personnel file.
.

The second question is once the new firm gets permission from the regulatory authority and also get the sponsorship licence then will I be able to join them under TUPE transfer at that stage so that the RLMT can be avoided? or will it be treated as if I am joining a new firm?

Ask the employment partner in your firm but I doubt if this will be a situation where TUPE is triggered in which case the new company will have to do a RLMT before assigning a CoS to you and you will have to make a change of employment application.

I would really appreciate if you could provide assistance in this matter.

Thanks.

[usa64]

Dear Manci ,

Thank you so much for your reply.

Could you please clarify if secondment can be done within the UK. i.e. both the companies will be in London.

Also, if I move to new firm with the current partner and they apply for a sponsor licence with the company they have (but have not yet got the regulatory permission) so just the company on its own and TUPE is trigerred then will I be able to join the new company without RMLT. I read somewhere in tier 2 guidelines that in part 9 where it gives information about scenarios about when change of employment application is not needed and under point 219 its states that if you are moving under TUPE or similar protection due to take over, merger, demerger or any other circumstances in which TUPE is trigerred. Its really confusing. I am finding the best possible way to join the company that one of the partners is forming without them having to undertake RMLT.

I will really appreciate your assistance in this.

Regards,

[usa64]

Dear Manci ,

Thank you so much for your reply.

Could you please clarify if secondment can be done within the UK. i.e. both the companies will be in London. Also, I am not a trainee. I am an assistant solicitor who will be seconded to another company.

Also, if I move to new firm with the current partner and they apply for a sponsor licence with the company they have (but have not yet got the regulatory permission) so just the company on its own and TUPE is trigerred then will I be able to join the new company without RMLT. I read somewhere in tier 2 guidelines that in part 9 where it gives information about scenarios about when change of employment application is not needed and under point 219 its states that if you are moving under TUPE or similar protection due to take over, merger, demerger or any other circumstances in which TUPE is trigerred. Its really confusing. I am finding the best possible way to join the company that one of the partners is forming without them having to undertake RMLT.

I will really appreciate your assistance in this.

Regards,

[manci]

Dear Manci ,

Thank you so much for your reply.

Could you please clarify if secondment can be done within the UK. i.e. both the companies will be in London.

yes, it can

Also, I am not a trainee. I am an assistant solicitor who will be seconded to another company.

Also, if I move to new firm with the current partner and they apply for a sponsor licence with the company they have (but have not yet got the regulatory permission) so just the company on its own and TUPE is trigerred then will I be able to join the new company without RMLT. I read somewhere in tier 2 guidelines that in part 9 where it gives information about scenarios about when change of employment application is not needed and under point 219 its states that if you are moving under TUPE or similar protection due to take over, merger, demerger or any other circumstances in which TUPE is trigerred. Its really confusing. I am finding the best possible way to join the company that one of the partners is forming without them having to undertake RMLT.

TUPE is a process, read about it on the ACAS website. You should discuss the matter with the management of your current sponsor.

I will really appreciate your assistance in this.

Regards,

[usa64]

Dear members and all those who have been in similar situation,

I have a query and will really appreciate some assistance and guidance. I am currently employed on a tier 2 visa. One of the partners of our firm has bought some part of the existing business ( the work and staff) are being transferred over to his new company. The staff is being transferred under TUPE. I have a query: Will the new company to which I am being transferred under TUPE carry out a resident labour market test? I am so confused. Please help me as I too stressed out. Anyone was in a similar situation?

If you have any suggestions or info then please share it as soon as possible.

Thanks.

[geriatrix]

Read 13. Mergers, takeovers and similar changes

[usa64]

Thanks Sushdmehta for your prompt response. I have read it. but it still doesn't become clear if Resident Labour Market Test needs to be done or not? please guide.

[manci]

Thanks Sushdmehta for your prompt response. I have read it. but it still doesn't become clear if Resident Labour Market Test needs to be done or not? please guide.

read para 13.8 in the link sushdmehta provided.

The new company will need a sponsor licence if they don't already have one but as far as you are concerned RLMT will only be required if your job SOC code in the new company will be different from what it is at present.

[usa64]

Dear Manci and Sushdmehta,

Thank you so much for your advice. My job, salary, soc code, even the office of the new employer is in the same building so nothing changes. So I don't think i will need a RMLT. Someone told me that my new employer will need to do a RMLT.

[usa64]

Dear Manci and other members,

Could you please advice me about Tier 2 visa. I am currently working for a firm under Tier 2 visa. I am being TUPED over to another company. My SOC code, salary, job responsibilities and other employment conditions remain the same so RMLT is not needed. The new employer have applied for a sponsor licence. My question is during the time till the new application for sponsorship for new company is processed can I work for the company to which I am TUPED? And who will pay my salary, the old company or the new company?

Could you please let me know as soon as possible.

Thanks.

[manci]

all explained in section 13:
https://www.gov.uk/government/uploads/s ... _v_1_1.pdf

[usa64]

Dear Manci and others,

I would be really thankful to all of you if someone could please provide me some assistance.

I am currently working with a company under Tier 2 visa. I am moving with my boss to his new company. My transfer to his new company will be under TUPE. My boss is applying for Tier 2 sponsor licence. He has started his own law firm. But he is a sole practitioner and there are 4 employees. When he was filling in the Tier 2 application form online, one of the sections asked to specify what kind of organisation you are. Now the law firm is registered with law society and has a registration number but the firm is not a limited company or partnership. In the Tier 2 guidance for sponsors we read that private individual can only apply for Tier 5. Now what should we do in such a situation. The other option that could be selected is of Sole Trader. I am not sure if this is a good option.

Could someone please explain what could be done. Does this mean that my boss can't apply for a Tier 2 visa? We satisfy all the other criteria and have all the other required documents.

Any assistance, advice from members and from others who have been in similar situations will be very helpful. If members could respond as early as possible then it would be great.

Thanks in advance.

[manci]

A sole practitioner is just an individual, he has no legal personality, and as such IMHO he cannot get a T2 sponsor licence.

There is also a requirement to have a corporate bank account.

He may want to check this with UKVI:
businesshelpdesk@homeoffice.gsi.gov.uk

[usa64]

The firm has a bank account in its name. I will ask him to check this with the UKVI.

thanks.

[usa64]

Dear All,

Firstly, i would like to thank all the members and advisors like Manci and others who have provided a lot of help and assistance. I really appreciate every members contribution and guidance.

i am writing this for all the members and tier 2 visa holders. As all of you must be aware that the UK government is planning to implement new rules for ILR where Tier 2 skilled employees will need to have salary of £35,000 to be eligible to apply for ILR. Thousands are going to be affected by this rule. People have a lot if misconceptions about migrants. Most of the people think that migrants are here to take benefits and become a burden on the government. But the reality is that most of the tier 2 workers contribute to the economy by paying taxes plus they are not entitled for any benefits even after getting ILR so how can they be a burden?
If the above policy comes into effect then thousands of people who have worked hard for years, have build their lives here will be deported and will have to start their lives again from scratch. i am sure there will be a lot of people who would be affected by this change. A few months ago nobody really raised their voice against this. the government is trying to pass this policy without it being properly assessed and debated.
A gentleman called Mr Harbord has set up a campaign called stop 35K opposing this discriminatory policy. Because of his efforts the MPs finally debated this issue on 7th March 2016 in parliament. The campaigners are struggling to put pressure on government so that the policy will be scrapped.

I am posting the petition and the address of the website here. Please sign the petition if you will be affected by the new changes, share it on your facebook and twitter page. Please raise your voice against this discriminatory policy. The website has all the details. It also deals with the misconceptions people have. Please spread the word. thanks.

http://www.stop35k.org/

[usa64]

Dear members and gurus (Manci and other gurus),

My friend is in a tricky situation and i need some help. My fried was granted tier 2 visa until 13 august 2016. Thereafter he applied for extension of his tier 2 visa. However, his application was refused as he failed to meet the points for English language. He made a review application (however, this was made after his leave had expired but within the time given for review application). His review application was refused on 21st November 2016. Now he has made an appeal (again within the time given for appeal).

My question is:

1. Will section 3 of immigration act apply to him? (I read that the leave is extended if the application is made in time before the leave expired). In my friend's situation his leave has expired but all the applications and appeal was made in time allowed to make such applications and appeals.

2. Is he allowed to work in the UK at this stage (when his appeal is pending)

3. Can his employers allow working him?

Would be very thankful if you all could assist.

Thanks.

[usa64]

Dear members and gurus (Manci and other gurus),

My friend is in a tricky situation and i need some help. My fried was granted tier 2 visa until 13 august 2016. Thereafter he applied for extension of his tier 2 visa. However, his application was refused as he failed to meet the points for English language. He made a review application (however, this was made after his leave had expired but within the time given for review application). His review application was refused on 21st November 2016. Now he has made an appeal (again within the time given for appeal).

My question is:

1. Will section 3 of immigration act apply to him? (I read that the leave is extended if the application is made in time before the leave expired). In my friend's situation his leave has expired but all the applications and appeal was made in time allowed to make such applications and appeals.

2. Is he allowed to work in the UK at this stage (when his appeal is pending)

3. Can his employers allow working him?

Would be very thankful if you all could assist.

Thanks.

[usa64]

All members and Gurus could you please help?

Dear members and gurus (Manci and other gurus),

My friend is in a tricky situation and i need some help. My fried was granted tier 2 visa until 13 august 2016. Thereafter he applied for extension of his tier 2 visa. However, his application was refused as he failed to meet the points for English language. He made a review application (however, this was made after his leave had expired but within the time given for review application). His review application was refused on 21st November 2016. Now he has made an appeal (again within the time given for appeal).

My question is:

1. Will section 3 of immigration act apply to him? (I read that the leave is extended if the application is made in time before the leave expired). In my friend's situation his leave has expired but all the applications and appeal was made in time allowed to make such applications and appeals.

2. Is he allowed to work in the UK at this stage (when his appeal is pending)

3. Can his employers allow working him?

Would be very thankful if you all could assist.

Thanks.[/quote][/quote]

[Frontier Mole]

Without very precise details on dates of application, appeal etc it is very difficult to give a viable answer.
The easiest and best way to test right to work is for his employer to use the employer checking service. That will give an answer that protects both the employer and employee.

[usa64]

Hello All,

I would be very thankful if respected Gurus and members could assist me.

I got my ILR a month ago. Now due to some changes in laws in the industry I am working in the profits of our company may get affected this year. My employers are considering reducing my pay. Will this have any effect on my ILR or in future when I apply for my citizenship. i ask this because when I applied for ILR my employer gave me letter that I will be paid at the appropriate rate for forseeable future and now after two months my pay is being reduced.

Thanks.

[CR001]

No, it should not be an issue as you already hold ILR.