Clarification on cooling-off period due to redundancy

[ks1234]

Hi there,

Initially, I was on a Tier 2 (General) leave to remain visa from February 2017 to September 2018. I received a job offer and switched employers who sponsored my new Tier 2 (General) leave to remain visa in September 2018. Unfortunately, while I was back in the states visiting family for christmas the company sponsoring my visa became insolvent making all employees redundant. This prolonged my visit until until finding a new job. Currently, my visa has not been curtailed and still showing as valid. I have recently been offered a new position with another company who is in the position to sponsor a new visa. Will I be able to apply for a new Tier 2 visa with this company or will I be subjected to a 12 month 'cooling-off' period?

Thank you

[Frontier Mole]

The problem is the unknown here - if your Sponsor became insolvent the Home Office should have been informed. At that point a marker is put on the systems although curtailment action may not have been initiated.

The risk you run in trying to return on your current visa is two fold.

If HO are are aware of the insolvency and the systems are updated when you return you will be denied entry, regardless of there being a curtailment notice or not.

Even if you do return and are not refused / stopped you are entering by deception as you already know your Sponsor is insolvent and that you cannot work.

So the question is do you run the risk of refusal at entry or refusal at the point you apply for a new tier 2 visa... there is a small percentage chance you can squeeze through these barriers but that is your call.

[ks1234]

Thanks for your reply. I wasn't planning to go back to the UK until I received new sponsorship for a new tier 2 visa as I know that refusal of entry is possible. This is one of the reasons I have remained in the States. I suppose i'm curious to as if I apply for a new visa through new sponsorship would it get denied because i'm not residing in the UK at the moment?

However, what i'm taking from your response then is that my situation applies to the 12 month 'cooling-off' period? Does it make any difference that my job is on the shortage occupation list?

[Frontier Mole]

My humble opinion and that is all it is because I have not experienced this scenario before:

If you apply out of country for a change of Sponsor that will obviously indicate you are not in the UK. That would require a restricted COS and I believe that is where your case would be examined closely. In previous cases I have seen where there was visa expiry ( yes people went on holiday and thought it is not a problem I will renew when I get back!), curtailment took place and they were unaware while out of the country etc, all became subject to the 12 month cooling off period.

I can’t find mention of your circumstances in the guidance - valid visa but insolvent sponsor and migrant overseas. There will be an argument that until you are curtailed then you have the right to return, from my previous post you know I believe there are serious risks on attempting to return.

If and this is a theory and nothing more, you were to return to the UK with an unrestricted COS in hand ready to apply in country or even pre applied on line then if stopped / queried - assumption here that curtailment letter is not yet issued - then there is a chance that Border Force would allow entry. Better minds than I need to give comment on this and you are still playing a risky game.

Shortage occupation or not makes no difference to the cooling off period.