About subject access. Help needed. Frontier Mole, please?!

[Andy69]

Hello, everyone. First of all, thank you Frontier Mole for the answer about care home being sold. I couldn't wait to get hold of my subject access request to check up on the information they have. I want to ask,

the company I was working for had been acquired by another one 2.5 years ago and ceased to exist as an independent business entity. In my subject access there is not a single word about the new owner; only information about the work permit issued for the old owner 3 years ago.
Why haven't any amendmants to the work permit been done? Is it reasonable to ask (my employer? the Home Office?)? I want to apply for ILR this year. Is my Work Permit still valid, do you think?
There is no chance to get a new work permit as a seniour care assistant at the moment if the Home Office insists on that. My current work permit is issued till October 2010.

I can't make sense of my situation. Help, please!

[Frontier Mole]

Sorry did not see the post, found while searching for another one!

Offically your work permit is invalid if you are not working for the same legal entity. This was the original point from the first post about workers getting screwed over because they did not know about a take over etc.

Did the current owner take over the entire previous company you worked for? If the whole legal entity was bought and placed into a group or division of a bigger company then that will be fine. Your WP will still be valid as long as the orginal legal entity is still operated within the group or division.

If your current employer applies for a WP in the name of the new legal entity it will be refused as you already know that WP's are no longer being granted for Senior Care Assistants.

If you do nothing but wait it out for the ILR I have no idea what will happen. You could be an illegal overstayer for the duration with all the risks that entails. I do not know what checks are performed at the ILR consideration, it might or might not include checks on your employer. Sorry no experience of this situation, will look into it and get back to you.

You need to find out if the original company still exists as a legal entity with the new company structure.

[Mr Rusty]

Andy69,
If you're doing the same job in the same place as you were when you were granted the WP you shouldn't worry too much. Companies get taken over all the time, and it goes against common sense to suggest that every time a company changes ownership all the WPs have to be re-applied for (which might be a considerable number in the case of, say, a merchant bank). It might be prudent to get your employer to write to UKBA confirming their acquisition of your original employer, and the continuation of your employment under the new ownership. Just tell UKBA, don't ask them to grant or consider anything.

You should also have regard to the Immigration Rules regarding ILR for WP Holders as follows:
Indefinite leave to remain for a work permit holder
134. Indefinite leave to remain may be granted on application to a person provided:

(i) he has spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a work permit holder (under paragraphs 128 to 133 of these rules), and the remainder must be made up of leave as a work permit holder or leave as a highly skilled migrant (under paragraphs 135A to 135F of these rules);

(ii) he has met the requirements of paragraph 128(i) to (v) throughout his leave as a work permit holder, and has met the requirements of paragraph 135G(ii) throughout any leave as a highly skilled migrant;

(iii) he is still required for the employment in question, as certified by his employer; and

(iv) he has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application.

Number iii shows quite clearly that you require the support of your employer to obtain ILR, even though once you've got it there's nothing to stop you walking out on him!
Disregard any comments about being an "illegal overstayer". Your Leave to Remain is valid until it expires, is revoked by UKBA, or you are arrested and served with papers for working in breach of your conditions, which, if you are still working in the same job, will not happen.

[Frontier Mole]

If only you knew how the UKBA works! Common sense and immigration do not sit well together.

In your example - one large organisation takes over another, yes I would tend to agree ONLY because when that happens they are aware of the legal issues and want to maintain the staff assets. What happens is they take the entire legal entity and usually incorporate it into a holding group company, HBOS for example. The trading company's Bank of Scotland and Halifax still exists are wholly owned divisions or subsidiaries. They carry as before everything stays the same, the employment contracts stay the same etc etc.

Small and medium companies rarely set up in this manner, too expensive and requires legal advice they are not willing to pay for. Even if they buy out an entire company they normally transfer the business as a TOGC and leave the Ltd. shell behind. Do not bother to complete the Company House requirements and let it get struck off.

The reason I have asked Andy to check if the original legal entity is still within the structure is to inform his next decision.

Let’s see what the position is to give the best advice. It might not require any action on his part at all! At worst he will have to get his “newâ€

[Mr Rusty]

If only you knew how the UKBA works!

I do.

Much more relevant to the OP's situation than the passage you quoted is the following Para from the same instructions:-

"146. When a person's employer is taken over by
another employer, the new employer should write to
us providing full details, a copy of the person's leave
to remain stamp, which can be found in the person’s
passport and quoting the worker's reference
number."

That is what I advised previously. Presumably that hasn't been done, otherwise it would be recorded on his file, which he has obtained. It is slightly worrying that they didn't notify the change of ownership when it occurred, but it is definitely better late than never. If the OP gets to the stage of seeking an extension without this info already on file, he could encounter problems.

[Frontier Mole]

As I advised - find out what legal entity he is employed by. If it is still under the same entity he does not need to do anything!

If the new employer has not maintained the previous legal entity only then does he need to take action. At that point your advice would be appropriate.

As for illegal, never said he would be!

If you "know" UKBA are you one of the caseworkers who make crap decisions because they can't read the information in front of them?

[Andy69]

Thank you, Frontier Mole and Mr. Rusty, for your replies to my query. I appreciate your advice. I tried to dig out as much information as I could to give you some more details.

Frontier Mole asked,

Did the current owner take over the entire previous company you worked for?
Here are some details I managed to find out,

1) from an internal company memorandum, “We are delighted to confirm that the company A( the new company) have completed our acquisition of the leasehold interest of the company B( the old company) of care homesâ€

[Mr Rusty]

"Legally speaking, I am not obliged to produce my contract of employment while applying for ILR. "

So how will you show that you have fulfilled the conditions as a work permit holder to qualify for ILR?
Your payslips and P60s will show an apparent change of employer, although it is quite clear from the documents you have cited that Company A completely took over Company B, whilst maintaining B's brand. But your new employer has effectively acknowledged the continuity of your employment. They should have confirmed this to UKBA after the takeover(see my previous post), but as I said before, better late than never. Ask them to do it as soon as possible.

I'm not quite clear whether you are wanting to apply for ILR straight away, or are just preparing the ground for later.

You may not be "legally obliged" to produce your contract when applying for ILR, but as you can see from the extract from the Rules that I quoted originally, you do require the support of your employer, and if your contract confirms your bona fides it would be a good document to include in the bundle.