Employment gap>90 days in UK

[longgapilr]

Current UK visa: Tier 2 General Certificate of Sponsorship
UK arrival: 31 Jan 2012
First day at ex-employer 6 Feb 2012
Last day at ex-employer: 20 Feb 2015
First day at current employer: 4 Jun 2015
Current Tier 2 valid till: 17 Jan 2018 (can't extend, 6 years max)

My last day at my previous employer was 20 Feb 2015 and the first day with the current employer was 4 June 2015. Between these two dates I did the Tier 2 General change of employer.

I didn't receive any curtailment of leave letters from the Home Office. I was in the UK with my wife and 2 kids the whole time during the gap.

I want to apply for the UK ILR under the 5 year route.

Could you please advise whether the gap between the two employments will be a problem when I apply for the ILR?

[zimba]

The continuous period of stay in the UK is broken if you had a gap of more than 60 days

https://www.gov.uk/government/uploads/s ... ds-v13.pdf

[mengo]

Current UK visa: Tier 2 General Certificate of Sponsorship
UK arrival: 31 Jan 2012
First day at ex-employer 6 Feb 2012
Last day at ex-employer: 20 Feb 2015
First day at current employer: 4 Jun 2015
Current Tier 2 valid till: 17 Jan 2018 (can't extend, 6 years max)

My last day at my previous employer was 20 Feb 2015 and the first day with the current employer was 4 June 2015. Between these two dates I did the Tier 2 General change of employer.

I didn't receive any curtailment of leave letters from the Home Office. I was in the UK with my wife and 2 kids the whole time during the gap.

I want to apply for the UK ILR under the 5 year route.

Could you please advise whether the gap between the two employments will be a problem when I apply for the ILR?

It is possible that your previous employer didn't immediately if not all inform Home office regarding termination of your employment. If the official gap is less than 60 days, then that would less likely to be a problem. Obtain employment history from HMRC and check when was your previous employment officially terminated.

If the gap is officially more than 60 days, it will likely be a problem (ie ILR refused). I would still recommend to apply for ILR regardless of employment gap as outcome of the decision can depend on caseworker's discretion. I would recommend to do one day application by using respected immigration firms. Thanks

[longgapilr]

Hi guys, just wanted to provide an update on my case.

I called Home Office 3 times about this question. Once the advisor said, without any hesitation, the gap of more than 60 days while changing employers is not an issue because my leave was not curtailed and I was in the UK. Other 2 advisors had to double check and got back to me with the same answer i.e. no issue.

One of the Big 4 immigration advisors said that they would not advise that I would be eligible to apply for ILR as my continuous residence was broken 60 days following my final date of employment with my previous employer. They also said: "Although the Home Office worker you spoke to confirmed that this would not be the case, the guidance is quite clear that a new application must be submitted within 60 days following the final date of employment with the previous employer or the continuous leave period will be broken. It is up to the Home Office as to whether they choose to implement this guidance when considering your application. We have recently seen cases where UKVI have chosen not to implement this guidance. If you would like to proceed with your application I would recommend that you seek independent legal advice prior to submission.".

I decided to apply for ILR in person but I couldn't afford independent legal advice prior to submission. My application for ILR was refused under paragraph 245AAA(b) of the Immigration rules because I have a break of more than 60 days between leaving my employment with previous employer and making the Tier 2 change of employer application. My gap period was 77 days i.e. 17 days more than the 60 day limit.

Could you please advise how I should proceed from here now:

1. I was a Trustee Treasurer and a Director at a UK registered incorporated charity throughout the gap period between the two employments. I wasn't paid anything for that role. Can this satisfy the requirement that "the applicant must have been employed in the UK continuously"?

2. Should I apply for an admin review of the refusal?

3. My current tier 2 (G) expires in Jan 2018 and I would have had it for 6 years in total by then. If I don't get an ILR, can I still extend Tier 2 because my Tier 2 clock would have reset after the gap of more than 60 days?

4. If I can't get an ILR or extend Tier 2 G, what are my options?

Just to reiterate, during the gap period I was in the UK and my leave wasn't curtailed. I am married with 2 kids. Also, the only reason there was a long gap because the new employer HR department and the immigration advisors messed up the whole CoS/Tier 2 application process. New employment contract was signed well before the 60 day limit.

[rubyracer2]

Can your spouse go on a Tier 2 General and you shift to his/her dependent. The 10 year route does not have this 60 day gap issue

Or if your occupation falls under a shortage occupation list, then you can apply for a new Tier 2 General immediately after your current one ends.

[vinny]

My last day at my previous employer was 20 Feb 2015 and the first day with the current employer was 4 June 2015. Between these two dates I did the Tier 2 General change of employer.

Did you apply online for leave prior to 22 April 2015?

If you have switched employers while in the UK, you must have applied for leave with your new employer/sponsor within 60 days of the end of your employment with your previous employer/sponsor.

[longgapilr]

My wife is a housewife and on Tier 2(G) Spouse visa. So she can't go on Tier 2 (G) and I can't switch to Tier 2 (G) Spouse.

My occupation doesn't fall under a shortage occupation list.

My last Tier 2 (G) Change of Employer application was made on 8 May 2015 (i.e. after 22 Apr 2015) and first Tier 2 application was made in Dec 2011.

1. I was a Trustee Treasurer and a Director at a UK registered incorporated charity throughout the gap period between the two employments. I wasn't paid anything for that role. Can this satisfy the requirement that "the applicant must have been employed in the UK continuously"?

2. My current tier 2 (G) expires in Jan 2018 and I would have had it for 6 years in total by then. If I don't get an ILR, can I still extend Tier 2 because my Tier 2 clock would have reset after the gap of more than 60 days?

[mengo]

Or if your occupation falls under a shortage occupation list, then you can apply for a new Tier 2 General immediately after your current one ends.

Hi rubyracer2,

Could you please, explain why 6 years gap won't apply if job is in shortage occupation list? I couldn't find relevant section in Tier 2 guidance. Please, advise.

1. I was a Trustee Treasurer and a Director at a UK registered incorporated charity throughout the gap period between the two employments. I wasn't paid anything for that role. Can this satisfy the requirement that "the applicant must have been employed in the UK continuously"?

2. My current tier 2 (G) expires in Jan 2018 and I would have had it for 6 years in total by then. If I don't get an ILR, can I still extend Tier 2 because my Tier 2 clock would have reset after the gap of more than 60 days?

1. As I understood from Tier 2 guidance, as your charity job is not a job taken under the original CoS, it is unlikely to satisfy the requirement.

2. According to the Tier 2 guidance (page 54), 6 years period won't reset due to gaps. Please, see below passage from the guidance:

"for the period of time you need to take your total stay in
Tier 2 (discounting leave as a Tier 2 (Intra-Company
Transfer)) to 6 years (this is counted from the date you
were first granted entry clearance or leave to remain).
Please note that the 6 years is not broken by any gaps
between your periods of leave. For example, if you have
had 6 years continuous leave in Tier 2 (General) but you
overstay for 10 days at the end of the 6 years before
applying again, the 10 days in which you had no Tier 2
(General) leave does not mean you can qualify again. "

https://www.gov.uk/government/uploads/s ... idance.pdf

You said that, you signed a new contract within 60 days but visa was granted later due to HR's fault. You better get advise from immigration lawyer as they may have an idea how to make it work in your favour.

[UK_01]

Hey,

Can you please tell me what was the outcome of your appeal (if you chose to do one)? I am exactly in a similar situation and been rejected because the gap was 66 days.

Thanks

[rubyracer2]

Or if your occupation falls under a shortage occupation list, then you can apply for a new Tier 2 General immediately after your current one ends.

Hi rubyracer2,

Could you please, explain why 6 years gap won't apply if job is in shortage occupation list? I couldn't find relevant section in Tier 2 guidance. Please, advise.

If the job in SOL, then a cooling off period doesn't apply and an applicant can immediately apply for a new Tier 2 visa. I reckon this should count towards the 10 year route, but Gurus can confirm that.

[longgapilr]

Hey,

Can you please tell me what was the outcome of your appeal (if you chose to do one)? I am exactly in a similar situation and been rejected because the gap was 66 days.

Thanks

I went on 1 Apr so I have till 14 Apr to submit an AR. Good luck to both of us! Hope it works out! One of the Big 4 immigration advisors has advised me not to bother with AR. He said it won't hurt but chances are low. I am still waiting to hear back from another lawyer and then I will decide whether to I will submit an AR or not. I will submit an AR most probably.

[longgapilr]

I did some research and wanted to get your thoughts on the below.

I was refused ILR because of 245AAA(b) (“…the applicant must have been employed in the UK continuously throughout the five years…”). I had a look at the Immigration Rules and got the following extract:

245AAA(b): the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain

On Tier 2 (General), I can be on supplementary employment (245HC(d) (iii)(2)) and voluntary work (245HC(d) (iii)(3)) which counts as “employment” as per the Immigration Rules (245HC(d) (iii) and Interpretation sections). Here is an extract from the Interpretation section:

“employment” unless the contrary intention appears, includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self-employment and engaging in business or any professional activity.

I was a Trustee Treasurer and a Director at a UK registered incorporated charity throughout the gap period between the two employments. I wasn't paid anything for that role. Can this satisfy the requirement that "the applicant must have been employed in the UK continuously" in the light of the above extracts from the Immigration Rules?

[marinaazul]

Hi All,

Do you know from when and how the Home Office start counting the 60 days?

They ask you for an employment termination letter?
HMRC records (Employments termination dates)?
HMRC Taxes paid?
HMRC salary paid?


I understood that is until you apply for the new/next visa but what is not clear is from when?

Any clue anyone?

Thanks.
MA

[longgapilr]

I had my P45 which showed the last day at the previous employer. They counted from that day. Better strategy would have been not to present the P45s unless they asked for it.

[mengo]

Hi All,

Do you know from when and how the Home Office start counting the 60 days?

They ask you for an employment termination letter?
HMRC records (Employments termination dates)?
HMRC Taxes paid?
HMRC salary paid?


I understood that is until you apply for the new/next visa but what is not clear is from when?

Any clue anyone?

Thanks.
MA

Hi,
HO calculate unemployed period from the day of termination. Employers send information to HO and you will see your official termination day known by HO, on your visa curtailment letter. If you haven't received curtailment letter yet, you can get employment history from HMRC to see your official termination date. I am not sure if HO count days based on papers (such as P45 and etc.) you submit. It is also possible that your employer didn't send termination letter and HO may not know that you were unemployed. Thanks

[Gogi]

Hi,

Due to some one negligence i am also in the similar situation that my employment gap is more than 60 days, despite i signed the offer letter within 60 days and new sponsor applied for license within 60 days, but the whole process took longer than 6o days.

My question is that tier 2 visa is for 6 years max, in case the tier 2 clock start ticking again after 2.5 years, i cant stay for more than 3.5 years on tier 2 as total 6 years will be completed, what a will gonna happen after that? And whats the possible solution? If anyone can advise.

[mspr335]

I had my P45 which showed the last day at the previous employer. They counted from that day. Better strategy would have been not to present the P45s unless they asked for it.

providing P45 or not providing with your application doesn't make a big difference. UKVI will access the information online from hmrc through your NI number and have all these information about the termination of your employment (last date of employment ).

[Logan82]

The rule is changing on 11th January 2018.

indefinite-leave-to-remain/60-days-gap- ... 45954.html

[zimba]

The rule is changing on 11th January 2018.

indefinite-leave-to-remain/60-days-gap- ... 45954.html

This does NOT affect people who get their Tier 2 before the rules changes. The 60 days rule still applies