Tier 2 TUPE Liquidation (confused) Help

[ladida]

Hi all, can you help me understand.

I got a tier 2 work visa SOC 2124 in May 2015 expiring May 2018. Unfortunately sometime in August this year things started to go side ways for the company I was working for. Small start up company and I was technically the only employee. New group of investors came in to buy the company but instead of acquiring it as a going concern they waited for the company to enter liquidation.

September 25th I received redundancy letter from liquidator. At the moment I am still waiting for curtailment letter.

The group of people who have taken over the old company told me they want to take me on. Right now I am stuck in limbo. They applied for tier 2 sponsor license and received it earlier this week. In their application they cited that they want to take me on under TUPE as I am vital to the business.

Yesterday they asked me to come in to help fill out some form on the SMS system. But all of this does not make sense. Can it still be TUPE if I received redundancy letter from liquidator? They have taken over assets and are still operating on the same premises.

The form we filled was asking for things like UK ID number, NI number, National ID number, Work start and End date. To me this seemed like the details on COS certificate. Is this part of TUPE process? I am confused.

The old company is still on the TIER 2 register and from my understanding it has not fully dissolved. Tomorrow makes 60 days from redundancy letter so I am worried that I have lost ILR continuous period.

[CR001]

See page 60 and 61 in the Sponsor guidance link below.

https://www.gov.uk/government/uploads/s ... 5-2017.pdf

[ladida]

Thank you for the reply. I have read that section a couple of times but to be honest I can not relate to my case.

What I have been told is that changes have been reported within the specified time frames AND I hope that is true. What I do not understand is Can home office transfer my visa to new company if I had already received redundancy letter? Or in other words if they had already been notified that I am out of work

[aokamgba]

This is a tangle of employment law and immigration. If you have been made redundant you cannot at the same time TUPE transfer to the new employer - it is one or the other. Have you received any redundancy payment and notice payment when you got your redundancy letter? When did you actually stop working for the old employer? The old employer should have reported your redundancy and the date of leaving on SMS. The new employer can then take you on but it will be a new visa rather than a transfer under TUPE. The new visa will be with a new sponsor and, unless there is an exemption, RLMT will apply. If this hasn't been started it will take 28 days longer before CoS can be assigned. Now when it comes to losing your continuous period for ILR I am not sure. I would assume that you not getting the curtailment letter may have something to do with your employer not reporting this on SMS.

I don't think this has been handled the best from the employment perspective; from the information you have given I would doubt if redundancy was necessary. You could potentially speak to an employment adviser/lawyer to have a look at whether the redundancy was even fair in the first place as it sounds it might have just been a way to avoid the TUPE obligations which is completely ridiculous with one employee. If the old employer's SMS hasn't been shut down and you are still theoretically sponsored + the redundancy has potentially been mishandled, they could have a look at reinstating you (i.e. wrong process etc.) but they would need to back-pay you for the time since your redundancy. Then TUPE could be done I think.

[ladida]

Update on my TUPE transfer situation. Maybe this can help someone in future

New company received sponsorship license last week. As i suspected the person assigned to handle SMS system might have acted prematurely and was filling out a COS. Lawyer advised that an error was made and they are in the process of correcting it. The update I received from the company today

Stage 1: NEW COMPANY Ltd has been granted a Tier 2 licence to employ a foreign worker.

Stage 2: today we have submitted the electronic application to link me (Ladida) to new Tier 2 licence. The electronic submission also has to be backed up with a request in writing and additional information (as already supplied with our initial application, but has to be resubmitted in conjunction with this stage).

The written application has been signed and is in the post to (the lawyer), so he can submit with the appropriate documentation and an additional covering letter.

Anyone know how long this process can take? If all goes well I am not sure how the 60 day continuous work is going to be handled.

[dan883]

This should normally be instant. I was in the same position and it all went swiftly as I was extremely anxious and recently managed to extend my T2 visa too.

If the new company has got the licence don't worry about anything else.


Good Luck

[ladida]

This should normally be instant. I was in the same position and it all went swiftly as I was extremely anxious and recently managed to extend my T2 visa too.

If the new company has got the licence don't worry about anything else.


Good Luck

Thanks for the reply. Do you get a new BRP after TUPE or you continue with the old one until renewal time. I was hoping to travel mid December but I do not want to push my luck.

[dan883]

You don't get a new BRP . You are just transferred to the new company. Please make sure you are definitely transferred to new company before your travel.

[ladida]

You don't get a new BRP . You are just transferred to the new company. Please make sure you are definitely transferred to new company before your travel.

Sorry to bring this up again. All seems to be progressing well. I have been told that Home office requested for some actions to be made on the SMS system of my former sponsor (old company). New company people told me my former boss came in two days ago logged in to the system and " approved my transfer". Not sure what that means exactly.

I have trolled the sponsor guidance notes to try and find any details on steps and timeline involved in TUPE/transfer but the information is very minimal. Last time you said the transfer is almost instant. Do you get a letter from Home office or anything as confirmation? I think at the moment we are waiting to hear from home office. Lawyer, new sponsor and old sponsor seem to have all done their part.

My sisters wedding is on the 16th of December I am hoping all this will have cleared by then.

[dan883]

Once the transfer is approved from the the SMS that is it. You don't get any confirmation letter. For your peace of mind, please request your immigration history from the HO and see what they are upto with your records. Notify them if anything needs changing. I would mostly worried about my situation more than my sister's weeding in this case.

Good Luck mate

[ladida]

Once the transfer is approved from the the SMS that is it. So maybe something is off then? You don't get any confirmation letter. For your peace of mind, please request your immigration history from the HO and see what they are upto with your records. Notify them if anything needs changing. I would mostly worried about my situation more than my sister's weeding in this case.

Good Luck mate

Thanks I will try and follow up tomorrow with the solicitor. I was actually in the process of filling out that form today but wasn't sure if sending that request would interfere with my case. Such a shame a lot of these things are out of your control.

[dan883]

Thanks I will try and follow up tomorrow with the solicitor. I was actually in the process of filling out that form today but wasn't sure if sending that request would interfere with my case. Such a shame a lot of these things are out of your control.

What form are you filling in?

[ladida]

Thanks I will try and follow up tomorrow with the solicitor. I was actually in the process of filling out that form today but wasn't sure if sending that request would interfere with my case. Such a shame a lot of these things are out of your control.

What form are you filling in?

Sorry for not being specific. I meant the form for requesting immigration history as you had suggested. I will probably wait until all this is done since it takes close to 40 days to get the immigration history back.

Update: Called my former boss yesterday. He said he is done with his side of things with the sponsor license. He has mailed some documents that home office requested. I assume this is surrendering the license? Not sure if this should happen before or after the transfer.

[dan883]

He has done his part and updated HO about everything and HO might have asked further info. Don't worry too much since HO is aware of the situation. I would just avoid travelling if I were you.

[ladida]

He has done his part and updated HO about everything and HO might have asked further info. Don't worry too much since HO is aware of the situation. I would just avoid travelling if I were you.

Thanks my heart has already travelled but I will have to wait. Was planning to travel next week Thursday but I will have to sit it out. Too many horror stories.

Solicitor sent me update today saying "Yes, the case is progressing as we want, albeit the Home Office have not yet given final sign off. However in the light of the fact that they haven’t raised any issues so far, I think you would be safe to travel. I am sorry this notification is so late"

Been 7 years since my family been together father mother sisters and brother. And I am missing it because of this.

[ladida]

Just to give an update on my TUPE situation.

On 12/12/2017 we received email confirmation from Homeoffice that my right to remain has been transferred to the new company.

The next day I was already on a flight out of the country and managed to make it in time for the wedding. I returned on the 31st and not much trouble with the boarder officer; just the usual questions. My visa renewal date is still the same

Thank you for all the support. I will be ordering my immigration records from homeoffice just so I know exactly what they have on me on file.