PSW to Tier-2 (without employer's license)

[earnmycash]

Hello,

My PSW will expire in mid August 2012 and by 31st July I'd complete 6 months of working for a big company.

My employer never had any sponsorship license nor they intend to apply for one.

My questions is, is it possible for me to apply for a Tier-2 if my employer doesn't have a sponsor's license? Employer can only register a letter on my behalf.


Awaiting a kind response. Really appreciate your help.

Best regards

[koolguykvs]

No its not possible unless they have license and issue a CoS to you.

[Link-Law Associates]

Hello,

My PSW will expire in mid August 2012 and by 31st July I'd complete 6 months of working for a big company.

My employer never had any sponsorship license nor they intend to apply for one.

My questions is, is it possible for me to apply for a Tier-2 if my employer doesn't have a sponsor's license? Employer can only register a letter on my behalf.


Awaiting a kind response. Really appreciate your help.

Best regards

Dear Earnmycash,

It is not possible for you to switch from PSW into Tier 2 without your company having a sponsor licence.

It is worth considering (from an employment law prospective) that your current employer should take "all reasonable steps" to continue your employment otherwise there could be a claim for unfair dismissal on the grounds of discrimination.

Your company needs to be aware of this jeopardy!

A licence application can be a relativity painless and inexpensive process providing your employer gets the process right first time.

If they do decide to apply for a sponsor licence they will need to get the process started straight away as an application can take 3 months to complete.

Best wishes

spammer Associates

[earnmycash]

Just one last question, if I find another job with an employer who already has an employer's license then do I need to work there for at least six months (which is impossible in my case)?

Many many thanks for your help.

[Link-Law Associates]

Just one last question, if I find another job with an employer who already has an employer's license then do I need to work there for at least six months (which is impossible in my case)?

Many many thanks for your help.

If you are applying for Tier 2 (ICT) then you need to demonstrate you have worked for a company for 12 months

PSW switch into Tier 2 (General) therefore you are not required to show you have worked for a company for more than 12 months

Best wishes

spammer Associates

[manci]

It is worth considering (from an employment law prospective) that your current employer should take "all reasonable steps" to continue your employment otherwise there could be a claim for unfair dismissal on the grounds of discrimination.

You are suggesting that the employer should apply for a sponsor licence to enable him to continue employing the migrant, who thus far did not need a sponsor, to safeguard against an unfair dismissal claim when the migrant's permission to work expires and he can no longer be lawfully employed by him.

Any basis for this in the Equality Act 2010?

[Link-Law Associates]

It is worth considering (from an employment law prospective) that your current employer should take "all reasonable steps" to continue your employment otherwise there could be a claim for unfair dismissal on the grounds of discrimination.

You are suggesting that the employer should apply for a sponsor licence to enable him to continue employing the migrant, who thus far did not need a sponsor, to safeguard against an unfair dismissal claim when the migrant's permission to work expires and he can no longer be lawfully employed by him.

Any basis for this in the Equality Act 2010?

There maybe a jeopardy - for example if an employee were to have a debilitating accident and needed wheelchair access to continue their employment a company that did not want the hassle factor of building wheelchair access to continue the employment could be liable for a claim on the grounds of discrimination. You could apply the same logic to this immigration matter.

A case heard by the Court of Appeal (Klusova v London Borough of Hounslow) illustrates the difficulties that an employer can encounter when trying to avoid contravening the immigration legislation.

I'm not advocating this could or would be the case as an employer might argue "some other substantial reason" but I am aware of one instance 2 years ago where a company settled rather than argue the matter in the EAT

Best wishes

spammer

[Greenie]

It is worth considering (from an employment law prospective) that your current employer should take "all reasonable steps" to continue your employment otherwise there could be a claim for unfair dismissal on the grounds of discrimination.

You are suggesting that the employer should apply for a sponsor licence to enable him to continue employing the migrant, who thus far did not need a sponsor, to safeguard against an unfair dismissal claim when the migrant's permission to work expires and he can no longer be lawfully employed by him.

Any basis for this in the Equality Act 2010?

There maybe a jeopardy - for example if an employee were to have a debilitating accident and needed wheelchair access to continue their employment a company that did not want the hassle factor of building wheelchair access to continue the employment could be liable for a claim on the grounds of discrimination. You could apply the same logic to this immigration matter.

A case heard by the Court of Appeal (Klusova v London Borough of Hounslow) illustrates the difficulties that an employer can encounter when trying to avoid contravening the immigration legislation.

I'm not advocating this could or would be the case as an employer might argue "some other substantial reason" but I am aware of one instance 2 years ago where a company settled rather than argue the matter in the EAT

Best wishes

spammer

Klusova v LB of Hounslow concerned an employer dismissing an employer due to the mistaken belief that she was no longer entitled to work in the UK, it's hardly the same as an employer dismissing an employee who is no longer entitled to work in the UK, and an employer not applying for a sponsor license in order to continue employing a non-EEA national is also not comparable to an employer failing to make adjustments for a disabled employee.

[Link-Law Associates]

It is worth considering (from an employment law prospective) that your current employer should take "all reasonable steps" to continue your employment otherwise there could be a claim for unfair dismissal on the grounds of discrimination.

You are suggesting that the employer should apply for a sponsor licence to enable him to continue employing the migrant, who thus far did not need a sponsor, to safeguard against an unfair dismissal claim when the migrant's permission to work expires and he can no longer be lawfully employed by him.

Any basis for this in the Equality Act 2010?

There maybe a jeopardy - for example if an employee were to have a debilitating accident and needed wheelchair access to continue their employment a company that did not want the hassle factor of building wheelchair access to continue the employment could be liable for a claim on the grounds of discrimination. You could apply the same logic to this immigration matter.

A case heard by the Court of Appeal (Klusova v London Borough of Hounslow) illustrates the difficulties that an employer can encounter when trying to avoid contravening the immigration legislation.

I'm not advocating this could or would be the case as an employer might argue "some other substantial reason" but I am aware of one instance 2 years ago where a company settled rather than argue the matter in the EAT

Best wishes

spammer

Klusova v LB of Hounslow concerned an employer dismissing an employer due to the mistaken belief that she was no longer entitled to work in the UK, it's hardly the same as an employer dismissing an employee who is no longer entitled to work in the UK, and an employer not applying for a sponsor license in order to continue employing a non-EEA national is also not comparable to an employer failing to make adjustments for a disabled employee.

Almost there Greenie...

Key implications An employer can dismiss an employee who is working illegally on the ground that the employment breaches a statutory restriction.

Employers can only rely on this ground for dismissal where there has been an actual breach of immigration legislation.

Therefore it could be interpreted that if an "employer" dismisses and "employee" who is still in employment with the company (who is not in breach of their leave or who's leave has not expired but may be about to expire) could not rely on "some other substantial reason" for the dismissal as there is no actual breach of the immigration legislation.

Making a correlation with a disabled employee was to illustrate the point of taking all reasonable steps to continue employment. granted they are not comparable.

Best regards

[Greenie]

I didn't suggest that an employer could dismiss an employee on the grounds that his leave was about to expire, but rather they could dismiss an employee who was no longer entitled to work in the UK.

I understood your correlation between disabled and migrant workers but didn't agree with it.

There yet?

[manci]

I think that at the point when the migrant's leave expires neither can the employer continue employing him lawfully, therefore he must dismiss him, nor can the migrant lawfully continue working, therefore he must resign and leave the UK. Either way the employment contract must come to an end at this point.

Also I don't see how an unfair dismissal claim can be brought if the employee has only been working for the company for less than 6 month, as in the present case. Correct me if I am wrong but I believe the minimum period of service to enable an employee to bring an unfair dismissal caim is 1 year as of today and this will become 2 years tomorrow (6 April).

[Link-Law Associates]

I didn't suggest that an employer could dismiss an employee on the grounds that his leave was about to expire, but rather they could dismiss an employee who was no longer entitled to work in the UK.

I understood your correlation between disabled and migrant workers but didn't agree with it.

There yet?

The thread has never been about dismissing an employee who is no longer entitled to work in the UK, that question is self evident.

The question is - does an employer have the right to dismiss an employee before there leave expires on the preemption that the employee will no longer have the right to work.

Klusova demonstrated that before you can dismiss, the employee must have breached the immigration legislation. Technically if you begin dismissal proceeding before the employee is in breach (as most employers might) there could be a jeopardy.

I'm glad you understood the difference I made between two types of discrimination

Happy holidays

[Link-Law Associates]

I think that at the point when the migrant's leave expires neither can the employer continue employing him lawfully, therefore he must dismiss him, nor can the migrant lawfully continue working, therefore he must resign and leave the UK. Either way the employment contract must come to an end at this point.

Also I don't see how an unfair dismissal claim can be brought if the employee has only been working for the company for less than 6 month, as in the present case. Correct me if I am wrong but I believe the minimum period of service to enable an employee to bring an unfair dismissal caim is 1 year as of today and this will become 2 years tomorrow (6 April).

As I originally posted

"I'm not advocating this could or would be the case as an employer might argue "some other substantial reason" but I am aware of one instance 2 years ago where a company settled rather than argue the matter in the EAT"

To bring about a claim for unfair dismissal as of 6 April 2012 you will need to satisfy 2 years employment - however to bring about a claim on the grounds of discrimination this will remain at 12 months is my understanding?

[manci]

so, since he he has only been employed for less than 6 months do you agree that bringing an unfair dismissal claim under any heading cannot even arise?