ILR Application - Decision to curtail Tier 2 VISA

[Important_Messages]

Hello All,

Please help me with this query. I would love a detailed response because this issue might apply to many families.

I am married with 2 young children, I currently work for a UK pharmaceutical company but I am currently on a 5 year secondment with our sister company in Germany - started in September 2015.

I started working in the UK on Tier 2 in November 2011 and was sent on Secondment in Germany for 3 years shortly after. I came back to the UK in November 2013. During my absence, the Tier 2 laws changed and it means that since I have spent a lengthy period outside the UK, I will have to cool off for one year. I was still hoping on applying for ILR in 2016 anyway but my company discouraged me (based on their lawyers' advice).

So when the new secondment opportunity became available, I took it but still kept my renewed Tier 2. My company however sent an email to the Home office telling them that I was on secondment to Germany and they would like to end my Tier 2 sponsorship so I can cool off. I told them to hold on that I was prepared to risk it but they sent it anyway.

Now, I just received a message from the home office. Please find below some important information form the letter and questions/remarks I have in quote:
------------------------------------------------------------------------------------------------------------------------------
We have curtailed your immigration leave.

Your leave to remain has been curtailed so that it now expires on 01 October 2016.
-----What does 'Curtail' in this context mean? By November 2016 I would have spent 5 years on Tier 2.

You now have until this date to either make arrangements to leave the United Kingdom or submit an application for further leave to remain.
-----When they say submit an application for further leave to remain, do they mean I can apply for ILR?

The Home Office was informed by your sponsor on 05 May 2016 that you have ceased to be employed by them in the UK.
-----Did my company lie because they still pay me and I still work for them but on secondment to Germany.

Home Office records have been checked and there is no evidence that you have made a fresh application for entry clearance, leave to enter or leave to remain in the United Kingdom in any
capacity.
------True I have not made any application for me or my family as I was waiting to risk applying for ILR in November.

Therefore, as you have ceased employment as notified by your Tier 2 sponsor, your leave is
curtailed under paragraph 323A(a)(i)(2) of the Immigration Rules so as to expire on 01 October 2016.
------ I still work for my UK company and I have not 'ceased' employment.

Consideration has also been given to section 55 of the Borders, Citizenship and Immigration Act
2009 (Duty regarding the welfare of children). The duty to have regard to the need to safeguard
and promote the welfare of children requires the Home Office to consider the effect on any
children of a decision to refuse leave, or remove, against the need to maintain the integrity of the
immigration control.
-------I have a wife and 2 kids living with me in Germany.

Our aim is always to carry out enforcement of the Immigration Rules with the minimum
possible interference with a family’s private life, and in particular to enable a family to maintain
continuity of care and development of the children in ways that are compatible with the immigrations laws.

In the particular circumstances of your case, it has been concluded that the need to maintain the
integrity of the immigration laws outweighs the possible effect on you and your child that might
result from you and your child having to re-establish family life outside the UK.
Before your current leave to enter or remain expires you must either leave the United Kingdom
or submit a fresh application for leave to remain.
----- Are they saying that I can risk applying for the ILR (after having Tier 2 between 2011 to 2016)?


Thanks for your kind support.

[CR001]

I will start by saying that the whole point of Tier 2 General is to be working IN the UK for 5 years. You have not done this. You might have held a visa for that timeframe, but you have not been resident in the UK for 5 years, based on what you are saying.

Your leave to remain has been curtailed so that it now expires on 01 October 2016.
-----What does 'Curtail' in this context mean? By November 2016 I would have spent 5 years on Tier 2.

Curtail/shortened/cancelled. Spending 5 years holding Tier 2 is different to working/living in the UK for 5 years on Tier 2.

You now have until this date to either make arrangements to leave the United Kingdom or submit an application for further leave to remain.
-----When they say submit an application for further leave to remain, do they mean I can apply for ILR?

No, they mean find another sponsor for Tier 2 General

The Home Office was informed by your sponsor on 05 May 2016 that you have ceased to be employed by them in the UK.
-----Did my company lie because they still pay me and I still work for them but on secondment to Germany.

Are you paid in the UK or in Germany? Do you WORK in the UK or in Germany? The company has an obligation to inform HO when you are no longer working for them in the UK. They can lose their sponsor license if they don't follow the rules.

Home Office records have been checked and there is no evidence that you have made a fresh application for entry clearance, leave to enter or leave to remain in the United Kingdom in any
capacity.
------True I have not made any application for me or my family as I was waiting to risk applying for ILR in November.

Don't think this will work. A lot of money to lose taking a risk.

Therefore, as you have ceased employment as notified by your Tier 2 sponsor, your leave is
curtailed under paragraph 323A(a)(i)(2) of the Immigration Rules so as to expire on 01 October 2016.
------ I still work for my UK company and I have not 'ceased' employment.

But you are not working or based in the UK. The whole point of Tier 2 as I said is to work in the UK for a UK sponsor and live in the UK.

Consideration has also been given to section 55 of the Borders, Citizenship and Immigration Act
2009 (Duty regarding the welfare of children). The duty to have regard to the need to safeguard
and promote the welfare of children requires the Home Office to consider the effect on any
children of a decision to refuse leave, or remove, against the need to maintain the integrity of the
immigration control.
-------I have a wife and 2 kids living with me in Germany.

Well, they live in Germany, so what is your point.

Our aim is always to carry out enforcement of the Immigration Rules with the minimum
possible interference with a family’s private life, and in particular to enable a family to maintain
continuity of care and development of the children in ways that are compatible with the immigrations laws.

In the particular circumstances of your case, it has been concluded that the need to maintain the
integrity of the immigration laws outweighs the possible effect on you and your child that might
result from you and your child having to re-establish family life outside the UK.
Before your current leave to enter or remain expires you must either leave the United Kingdom
or submit a fresh application for leave to remain.
----- Are they saying that I can risk applying for the ILR (after having Tier 2 between 2011 to 2016)?

Leave to remain is another Tier 2 or any other VISA you qualify for. They are not implying ILR.

One has to ask and wonder how you would have managed to even get ILR with the high level of absence you have AND that you are currently living and working in another country.

[Important_Messages]

Thanks for taking time to reply my questions - very helpful.


It was good to get clarification on issues because I do not have experiences of people who are in my shoes.

I think I will see out my 5 year secondment in Germany and try to get a passport there. With Brexit, the UK passport might be less useful for me in my situation as I need to travel round EU as part of my current job.

Thanks once again.

[Wanderer]

Thanks for taking time to reply my questions - very helpful.


It was good to get clarification on issues because I do not have experiences of people who are in my shoes.

I think I will see out my 5 year secondment in Germany and try to get a passport there. With Brexit, the UK passport might be less useful for me in my situation as I need to travel round EU as part of my current job.

Thanks once again.

Think it's 7/8 years for citizenship in DE, depends on integration/language course etc for the one year advantage.

[Important_Messages]

Thanks a lot for the tip Wanderer. I will see it out.

At least I do not have to waste £,2000 on application when I am not going to get a favourable response from UKBA.