Tier 2 new employer: paid leave with old employer

[nbhitesh]

Hello all,

Short question:
Can someone in Tier 2 visa be on paid leave with Employer A and still work for Employer B full time on a separate Tier 2 visa?

Long question:
I and switching employers from Tier 2 general to Tier 2 general; now I have to serve 3-month notice period to existing employer; but I have to start working for my new employer in about 2 and half months' time. I have about 4 weeks of leave remaining with existing employer which has to be used (cannot be encashed).

I am planning to take a paid leave with the existing employer for the final four weeks so that I can start working with the new employer on due date. So, technically, I plan to be employed by both the employers for about three weeks. But I will be on paid leave with the existing employer during the overlapping period (during which I will be theoretically working 0 hours per week).

I know I am allowed to work with existing employer at least until the start date of the new Tier 2 Visa. But section 226 of the Tier 2 Guidance document also allows supplementary employment (of similar nature) as long as it is not over 20 hours per week. So, I am assuming it is legally okay to have such overlapping period of employment with two employers (one of which would be paid leave).

Would this breach Tier 2 immigration guidelines? Anyone with similar experience? Pls feel free to share you views and experience.

Thanks for reading; have a nice weekend!

[Frontier Mole]

It is a breach as it is not the hours worked but the contracted hours. Your current employer can not employ you once your new visa comes into play. There would be holiday pay for the four weeks and therefore you are employed under your current contract.

Let me make this very clear, there is no wrinkles in the system, no get out clause, no way to be employed full time by two Sponsors simultaneously.

The old employer will be employing you illegally from the start date of your new visa. It is up to you to tell them or not. As an aside when you go for ILR your HMRC record will show that you were employed upto your P45 date which of course will be after your start date with the new company. May or may not get picked up but it is at your own risk.

[nbhitesh]

Noted with thanks.

[nbhitesh]

UPDATE:

I had presented my situation to my new Tier2 Sponsor asking for advice. They have consulted with their account manager at Home Office and have confirmed that it is ok for me to be on paid leave with my existing employer while I start work with my new Tier2 Sponsor.

I hope this information can be useful to others as well.

[Frontier Mole]

UPDATE:

I had presented my situation to my new Tier2 Sponsor asking for advice. They have consulted with their account manager at Home Office and have confirmed that it is ok for me to be on paid leave with my existing employer while I start work with my new Tier2 Sponsor.

I hope this information can be useful to others as well.

So your new employer is a Premium Service holder, wonderful. It is not their issue it is the previous employers issue so the question put to the new employer is worthless because it does not affect them.

BTW the advice from Premium Service is usually of a very poor standard , believe me I know as I have to correct them a lot!

[Frontier Mole]

For clarification - in case anyone actually considers being on paid leave from an old employer is acceptable when joining another Sponsor- it is a breach of your visa conditions. It is also a breach of your previous Sponsors duties too.

It is the contractual terms of employment that matter here. If you are on paid leave your are still working for the employer. If you are officially terminated prior to your new visa date and paid in lieu of leave that is fine.

The issue that will get you is the P45 termination date. If there is a cross over between finishing with the old Sponsor and the start date with the new Sponsor and or visa date then that is all that is required to show a breach.

Believe me when I say this is an easy hit and it is against the migrant and previous Sponsor and not the new Sponsor.

[nbhitesh]

Thanks Frontier Mole for your inputs. However, I would be grateful if you could refer to the clause or point in the rules/regulations/guidance that says it is a breach of existing regulation. In the existing Policy Guidance, I could not find anything that suggests it would be a breach to continue working under an existing and valid Tier 2 visa.

Can you point to any rule/regulation that says existing Tier 2 visa will be invalid from the start date of a new Tier 2 visa? Your response would be appreciated.

[Frontier Mole]

The guidance for your employer falls under the following - they are no longer responsible for you as a migrant when sponsored by another Sponsor at 14.4. So by default you are not their employee and can’t be paid as such.

And the following apply 15.6 on reporting duties as you no longer working for your old employer, so that is a fail on that point if they have you on their systems when you are not entitled to be.

15.12 stop employing migrants when they no longer are entitled to do the job. A fail on that point as you are still contracted to them and being paid when no longer able to be.

There is also the guidance on preventing illegal working over and above Tier 2 guidance. It is clear that a business employing anyone without the right to work for that business is subject to a fine of up to £20k. The definition of working is being contracted to work and receiving payment. Regardless of annual leave you meet both the criteria.

Happy days