Queries on allowed extra work for 20hrs per week on Tier-2 CoS.

[iahsan]

1. How is it decided if the hours are 20 or more per week? Gov.uk suggests an average over 17 weeks does the same or similar averaging applies to Tier-2 extra work allowance? Link: https://www.gov.uk/maximum-weekly-worki ... king-hours

For example, if someone works 40 hrs in week-1 and 0 hours in week-2,3 and 4, gets a monthly pay slip, would it be considered 10 hours per week?

2. Tier-2 guidelines suggest extra work should be done "outside of normal working hours" with the sponsor; who decides these normal working hours? There is no such mentioning on the CoS?

3. If you are travelling abroad as part of the extra 20hrs/week allowance and are paid a travelling allowance per day (other than subsistence expenses) does travelling and stay abroad counted as work hours or only the hours you actually work while being abroad are counted?

4. How 'likely' is that one-off projects that exceed 20hr a week limit will get noticed? For example, considering many people on this forum have admitted to have done it, have you heard of any case where it resulted in curtailment of leave or rejection of ILR?

[CR001]

Note that the 20 hour per week restriction is relevant to secondary employment and not your main tier 2 sponsor employment and these hours for another employer needs to be outside your main sponsor employment hours. You cannot even do secondary work if on annual leave as you are on annual leave from your main job and paid for that time.

[iahsan]

Note that the 20 hour per week restriction is relevant to secondary employment and not your main tier 2 sponsor employment and these hours for another employer needs to be outside your main sponsor employment hours. You cannot even do secondary work if on annual leave as you are on annual leave from your main job and paid for that time.

Thanks and agreed; all of the questions above are in context of a secondary employment with a different employer than the sponsor, should have made it clear.

Can you please comment on how the 20-hrs are calculated, as an absolute number for EVERY week or as an AVERAGE over some weeks?

Asking for a friend, who has been hired for this one-off project which is only one week but 40hrs in that week, involves travelling abroad, the employer is a well reputed multi-national who have checked his 'right to work' by asking him to bring his BRP and have not raised any objection but another colleague at work argues it can lead to problems. Shouldn't they have pointed out if it was illegal, they check the BRP and said everything is ok?

Secondly, is there a formal definition of 'normal working hours' as far as home office is concerned, since CoS has no such section, is it the hours mentioned on your full time job contract with the sponsor?

[CR001]

Secondary employment is strictly 20 hours per week.

Normal working ours are as calculated in the link you have provided. HO based the annual salary calcs in the SOC list on 39 hours per week and then if your hours are less or more up to 48 per week fixed hours, salary is pro rated.

[iahsan]

Secondary employment is strictly 20 hours per week.

Normal working ours are as calculated in the link you have provided. HO based the annual salary calcs in the SOC list on 39 hours per week and then if your hours are less or more up to 48 per week fixed hours, salary is pro rated.

Thanks again CR001, more specifically this is the situation.

A friend has been hired for this one-off project which is only one week BUT 40hrs in that week, involves travelling abroad, travel allowance is paid on the work as well, the employer is a well reputed multi-national who have checked his 'right to work' by asking him to bring his BRP and have not raised any objection but another colleague at work argues it can lead to problems. Shouldn't the secondary employer's HR have pointed out if it was illegal, they checked the BRP and said everything is ok?

[CR001]

So he would be taking 'holiday' time off at his main sponsor???

If that is the case, then no, he cannot work for a secondary employer while on holiday from his main job. Any holiday he takes is main tier 2 sponsor time.

[iahsan]

So he would be taking 'holiday' time off at his main sponsor???

If that is the case, then no, he cannot work for a secondary employer while on holiday from his main job. Any holiday he takes is main tier 2 sponsor time.

Exactly, his plan was to take annual leave for the week and logic was that "its time off work so whatever I do in the week is my choice" and the payslip will be issued for a month so no mentioning of 40hrs will mean at best they are considered averaged over 4 weeks and since he didn't HIDE any of this from the secondary employer and they didn't object, he believes he is absolved of most if not all responsibility.

[CR001]

and logic was that "its time off work so whatever I do in the week is my choice"

It isn't really though is it. He will be in breach of his visa conditions, not just by working for another employer on the main tier 2 sponsors time, but working more than 20 hours per week.

and the payslip will be issued for a month so no mentioning of 40hrs will mean at best they are considered averaged over 4 weeks and since he didn't HIDE any of this from the secondary employer and they didn't object, he believes he is absolved of most if not all responsibility.

It is HIS responsibility to abide by the rules of his visa. It is not wholly a secondary non sponsoring employer.

Suggest your friend stick to the rules. You will be surprised at how efficient HO is at finding out stuff when they check his details on HMRC or does a full audit of his sponsor.

[iahsan]

and logic was that "its time off work so whatever I do in the week is my choice"

It isn't really though is it.

Agreed, specially since you highlight that annual leave is paid.

and the payslip will be issued for a month so no mentioning of 40hrs will mean at best they are considered averaged over 4 weeks and since he didn't HIDE any of this from the secondary employer and they didn't object, he believes he is absolved of most if not all responsibility.

It is HIS responsibility to abide by the rules of his visa. It is not wholly a secondary non sponsoring employer.

Suggest your friend stick to the rules. You will be surprised at how efficient HO is at finding out stuff when they check his details on HMRC or does a full audit of his sponsor.

Agreed again, "nobody told me" is clearly flawed logic. Not sure about HO finding stuff though, from many threads on this forum it does feel like such issues go away unnoticed ... but there is always a chance they won't and it's you. Thanks again.

[CR001]

When a person applies for extensions, ILR and citizenship, the full HMRC employment record is checked. For citizenship, ALL employment, paid or unpaid, must be declared in the form for the whole time you were resident in the UK. Amazing what information a National Insurance number can give to HO and company RTI and payroll returns.

Withholding any information or fudging the facts, can result in a refusal for deception and breach of immigration rules.

Ignorance of the rules and the laws is not an excuse. The tier 2 policy guidance explains very clearly about secondary work. It is not hidden away from people and then used to catch them out.

[iahsan]

Agreed on all accounts CR001.

Like many times in the past, thanks a lot for your time and very valuable, very logical input. Like always, it is very much appreciated.

[iahsan]

So he would be taking 'holiday' time off at his main sponsor???

If that is the case, then no, he cannot work for a secondary employer while on holiday from his main job. Any holiday he takes is main tier 2 sponsor time.

Hey CR001, can I please ask you to comment on the fact that the gov.uk page (in the first post) classifies "paid or unpaid holiday" as "doesn't count as work", would it change your interpretation of 20hrs with secondary employment being outside of normal working hours? would it make all hours in the day eligible for the 20hrs work if you have taken annual leave?