Ready for ILR..but have change of COS

[AllHopeLost]

Good day.

I am hoping t get some advice from a moderator on my situation.

Background Info
I have a Residence Permit (Tier 2 General Visa) with an expiry date of Sept 2016. This was based on the COS of my previous employer who after I left that employment in August 2015, cancelled their COS.

After reading up on the immigrationboards website , it appears that there is a possibility that there is a 60 day "window" or time frame in which I could still apply for ILR.....however since my previous employer cancelled my COS......can I still apply for ILR , while waiting for the "official" letter from Home Office, stating that my COS has been cancelled ?
My current employer does have a COS to employ me BUT says that he cannot legally employ me until such time that I get a new Tier 2 Genera Visa. Is there a post or a link to Home Office website where it states that a person can continue working while one's ILR has been submitted and is waiting for a reply ??

I am trying to avoid having to apply for a NEW Tier 2 General Visa and then once I get it, apply for ILR for myself and my wife. As the cost of this is more than I can manage

I am on a very very VERY short deadline of using the opportunity of the 60 day window as this expires at the end of October 2015 .

Please Please PLEASE advise asap. What are my options ?

Thank you so much

I really hope I don't end up ling up to my username

[CR001]

Even if you apply for ILR and it is in process, you cannot work for your new employer/sponsor as your visa is likely already curtailed.

Are you planning to apply for ILR based on Tier 2 G or 10 years long residence?

You will have difficult securing ILR if you are not employed or your visa is curtailed/cancelled. Your best option will be to apply for a new Tier 2 G sooner rather than later, assuming your new employer has done RMLT etc.

[AllHopeLost]

Hi CR001

Thank you so much for the prompt reply

My current employer does have a NEW COS for me but says I can only continue working once I have the NEW Tier 2 G Visa.

Can I not just do a "switch over" from one employer to another.
I am a teacher by profession and am still getting paid by the SAME County Council, at the SAME rate of pay, for the SAME position. I have just changed employers and buildings ....if you like?

I am just sooooo close to applying for ILR for myself and my wife after enduring ALL of Home Office's Beaurotcratic B/S for all these years. We have been resident in U.K since 2002 but because of an expiry of my visa after 5 years, we lost those 5 years and returned in 2008 until now

It's just so FRUSTRATING when hard working Law Abiding foreigners like myself, comply with all Home Office's RULES AND EXHORBITANT (Rip Off) FEE hikes etc.

Thanks again for the reply and confidence boost.

[CR001]

No, unfortunately Tier 2 does not work like that. It is employer/sponsor specific and if you are no longer with your sponsor/employer, you cannot work for anyone else unless you obtain a new Tier 2 visa.

Have you not received your curtailment letter yet? The expiry of your current tier 2 visa is irrelevant as your visa is in effect cancelled.

[AllHopeLost]

Hi CROO1

So would I be applying for a T2G Visa (up to 3 years), under the shortage occupation jobs category ?

My job is listed as a shortage category and the fee guidelines is £428+ £300 for the same day application.

Hypothetically speaking ...... how soon after my T2G Visa can I apply for ILR ?

Thanks again for replying and advising.

[CR001]

As soon as you meet all the requirements and 5 years residence.

[AllHopeLost]

Hi again

I have met the 5 year requirement and have NOT yet received my letter of curtailment.

I was also NOT given a statutory notice by my employer of him cancelling my Visa.

[AllHopeLost]

May I also ask A FEW more questions

Do I have to pay the new health surcharge when I apply ?

Secndly, does thia mean that my 4 dependents (wife and 3 kids aged under18) have to also ALL pay £828 after I apply and get my T2G Visa ?

As a risky scenario, could I apply for T2G visa for myself and once I have it then just apply for ILR for myself and my wife?

Thanks for replying and advising.

[AllHopeLost]

In a nutshell and to be brief...

My intention is to IMMEDIATELY apply for ILR ( for myself and my wife) as soon as "I" get my Tier2 G Visa

So that once we have ILR, we can then apply for Citizenship for the kids.

[CR001]

Your employer notifies HO and HO cancel/curtail your visa.

Are you employed by the Council or the actual educational establishment?

Yes, you have to pay the health surcharge for Tier 2.

No, she does not have to apply with you if she has a PBS Dependent visa valid till next year.

Were your children born in the UK?

[AllHopeLost]

My wife and kids are all PBS Dependants.

Yes My kids are all born in the UK.

I am a teacher by profession and am still getting paid by the SAME County Council, at the SAME rate of pay, for the SAME position. I have just changed employers and buildings ....if you like?

[CR001]

Who sponsored your visa and issued your CoS?

[geriatrix]

So, you no longer work for the "sponsor" who issued the CoS based on which you were granted leave to enter /remain in the UK and take up employment under the said sponsor!

You now work for a different sponsor, without being issued leave to remain as a Tier 2 migrant on the basis of a CoS issued by the new sponsor

Do I understand the situation correctly? if so,

Questions:
1. How did you meet 245HF(d)(ii) to be eligible to apply for ILR?
2. Do you not know that you cannot legally work for a new sponsor unless a leave has been granted to you based on the CoS issued by that new sponsor? That is a mandatory requirement even if it so happens that the CoS is the same, the salary is the same and even if you happen to sit on the same chair in your ame old office under the new sponsor.

[CR001]

@sushdmehta, the OP has already applied for ILR but not with any current Tier 2 G sponsored visa. He did not opt to apply for Tier 2 G with the new employer. See link below

Eligibility to work on tier 2 while ILR is being processed

[geriatrix]

Char, did so (read the other topic you refer to) before finding this topic in OP's history.

the OP has already applied for ILR but not with any current Tier 2 G sponsored visa.

A Tier 2 migrant cannot apply for ILR in such circumstances, unless such an application is based on long residence, because 245HF(d)(ii) fails - as hinted in my previous response.

Unless the OP applied for ILR under long residence - which he doesn't mention in either of the topics - the question remains. If he wasn't working for sponsor A since Auagust 2015 (employment ceased; CoS terminated) and had not been granted leave under sponsor B by the time he applied for ILR, how did he qualify for ILR?

The *60 days* window is for the migrant to find a new sponsor (B) and apply for leave under the new employer's CoS. When such leave is granted only then can a TIer 2 migrant apply for ILR under the PBS route.

[CR001]

Sushdmehta, I had actually forgotten about this thread until you commented. OP applied for ILR based on 5 years residence and I agree that he fails to qualify for ILR because of the rule you quoted.

In your view, what will be the likely outcome and what would you advise - refusal of ILR and a chance to apply for a new Tier 2 G or apply for a Tier 2 G with new sponsor before decision on ILR is made?

[geriatrix]

Given that he has submitted an ILR application which is bound to fail (if I have his story right) the best course of action for him, IMHO, is to vary his ILR application to Tier 2 leave to remain under the new sponsor.

[AllHopeLost]

@ Sushdmehta and CROO1

What I failed to mention is that on 16 October, I managed to speak to an official at Home Office named Ian.C. who advised me that instead of making a NEW application for T2G , since I have already qualified for ILR under the 5 year rule, I should instead make the ILR application, which I did

My employer recently contacted Home Office , Eductaors Helpdesk and spoke to a man named Alex. My employer asked Alex if I could in the meantime, make a separate application for T2G just to secure my legitimacy to work, which Alex then replied that NO, I cannot as I cannot submit 2 applications at once, one for ILR and another for T2G

When you reply to this updated info that I have posted, could you also kindly tell me what IMHO stands for.

Do the moderators advise/suggest I recall and STOP my application ?
Will I get a full refund of the fee as Home Office has still NOT cashed the Bankers draft I sent ?

I went with the suggestion and advice of Home Office person....That's why I submitted it. Even checking with a well known Immigration Law company, I was also advised that I could apply for ILR .

LASTLY , can I also ask a very important question..........

When I applied, I applied for ILR for myself and my spouse. IF my ILR is declined, what happens to her application.

She currently on a PBS DEPENDANT status which expires in Sept 2016 and she is NOT TIED IN TO MY T2G Visa conditions.

I am getting lots of "conflicting" and different advice, so am now in a MAJOR STATE OF PANIC as the fees for all of these is phenomenal and I am NOT as wealthy as Richard Branson OR Alan Sugar !

Please continue advising as you have been doing.

Thanks

[CR001]

IMHO = In My Honest Opinion

Is your wife on a Tier 2 Dependent visa or are you saying she is on her own Tier 2 General visa? I don't understand your comment below

She currently has a T2G which expires in Sept 2016 and she is NOT TIED IN TO MY T2G Visa conditions as she is tied in to Leave to remain.

If your wife is your dependent and on a Tier 2 Dependent visa, she will not qualify for ILR and will also be refused if your application is refused.

Home Office call centre is well known for giving incorrect advice to people.

[AllHopeLost]

Hi CR001

A correction........she is a PBS Dependant Visa

In a previous post, YOU mentioned that she is not directly tied in to my employer.

What then is her status in the U.K ? For that matter, my children as well, As their Residence Permits state PBS Dependant Visa

WHy is it that she should be declined as well ?
Will this also be the case if "hypothetically" if she applied SEPERATELY and INDEPENDENTLY for ILR ??

Please advise

Thanks

[CR001]

If she is a PBS Dep visa holder, she is tied in to YOU and YOUR visa status, not your previous employer. If you have a curtailed visa, hers is likely to be curtailed as well, unless you had applied for a Tier 2 G as you said earlier in this thread you would.

As she is a PBS Dependent, she can only get ILR if you are successful in getting ILR. She cannot apply independently from you. That would only be possible for 10 years long residence ILR applications, which is not relevant at this stage.

[AllHopeLost]

Thank you for your prompt response.

You previously mentioned that if I were to apply for Tier 2 General that my dependants will not need to apply with me as they tied in to Leave to remain and not to my employer.

Does this remain the same ?or now when I apply for Tier 2 general visa do I have to now include them on my application form as well.

Please can you advise. Thank you

[AllHopeLost]

@Sushdmehta and @CR001

Still considering all options.

Can I apply for ILR then under the long Residence route

Bearing in mind that I was out of the country from 04/08/07 until 31/08/ totalling 370 Days(Due to the rules of immigration and I have evidence that can be submitted). and gain in 15/12/14-17/01/15..(due to a family emergency.

My total number of days are 404.

Now if you consider the following info in the link provided below which states as follows:
You can leave the UK during the continuous residence for up to:
180 days at a time
540 days in total

You can’t count time spent in:
a prison, young offender’s institution or secure hospital
the Republic of Ireland, Isle of Man or Channel Islands


https://www.gov.uk/long-residence/eligibility

Will I still be eligible to apply for ILR under the long residence route.

Thanking you both in advance.

[CR001]

No, you will not qualify for ILR based on long residence as your continuous residency has been broken by your absence in 2007/08 of more than 180 days.

You would do well to take Sushdmehta's advice and apply to vary your ILR application to a new Tier 2 G with the new CoS. You will likely need to apply for your spouse again too.

Immigration health surcharge will be payable for both of you for a new Tier 2 General.

[AllHopeLost]

@CR001

Many thanks for your prompt response will take the advice and apply For Tier 2 .

Appreciate it