Switching to Tier 2 visa

[Zerubbabel]

Hello

I am posting on behalf of a non-EEA lady I am talking to.

- She came to the UK in early 2017 to join her Spanish partner. She got an EEA family member card at the time.

- Mid-2017, the Spanish national got an inheritance of a family business and decided to leave the UK and go to Spain. He got dragged into taking over that business and he never came back to the UK.

- She decided to stay in the UK to keep the job she had already started. She working on that job to this day. The employer is satisfied that she has an EEA card with the right to work.

- I don't think the Home Office knows that the EEA national left the country and it would be easy for them to check if they need to I think (no taxes / contributions since 2017)

In October 2019, as her employer is expending activities, they are opening new positions. Some of these positions come with Tier 2 sponsorship possibility.

She want to apply for one of these positions and she has good chance of getting one. She informally spoke with the management and they are considering her for one of these promotions.

Questions:
- Can she switch in the UK from EEA to Tier 2? (I think the answer is no)

- If she goes to her home country and apply for Tier 2 from there, is her history with EEA going to trigger any issue for the application?

[CR001]

- She came to the UK in early 2017 to join her Spanish partner. She got an EEA family member card at the time.

Married or unmarried??

- Mid-2017, the Spanish national got an inheritance of a family business and decided to leave the UK and go to Spain. He got dragged into taking over that business and he never came back to the UK.

- She decided to stay in the UK to keep the job she had already started. She working on that job to this day. The employer is satisfied that she has an EEA card with the right to work.

Her rights in the UK ceased when her partner left the UK.

- I don't think the Home Office knows that the EEA national left the country and it would be easy for them to check if they need to I think (no taxes / contributions since 2017)

Never a good idea to keep such material facts from HO. They know far more about people than you think.

In October 2019, as her employer is expending activities, they are opening new positions. Some of these positions come with Tier 2 sponsorship possibility.

She want to apply for one of these positions and she has good chance of getting one. She informally spoke with the management and they are considering her for one of these promotions.

Questions:
- Can she switch in the UK from EEA to Tier 2? (I think the answer is no)

- If she goes to her home country and apply for Tier 2 from there, is her history with EEA going to trigger any issue for the application?

1. No she cannot. The full and proper RLMT would need to be completed to prove she has not been pre-selected. What is the job and SOC??

2. Possibly yes as she would likely be classed as an overstayer since 2017 when her partner left.

[Zerubbabel]

Married or unmarried??

She is unmarried partner.

Her partner left and for a while it was unclear if he will be back or not. But after two years, it's obvious that he left the UK for good and won't be back.

The position will be open. It's about IT Sales but she doesn't have the details as yet because the positions are being created at the moment.

Internally, she has been pre-selected. Not to circumvent immigration rules, but her employer wants her in one of this positions. They will have to do RLMT for her.

2. Possibly yes as she would likely be classed as an overstayer since 2017 when her partner left.

That's the scariest option for her. Because she would have to leave the UK, apply from abroad with the risk of refusal if the HO goes back digging on her immigration history.

[CR001]

She is unmarried partner.

Her partner left and for a while it was unclear if he will be back or not. But after two years, it's obvious that he left the UK for good and won't be back

She has been an overstayer since the day her partner left the UK then, regardless of holding an EEA RC. She has no automatic rights to remain in the UK as an unmarried partner once a) the EU citizen is no longer a qualified person exercising treaty rights and b) if they are no longer in a subsisting relationship. She has also therefore been working illegally as she had no right to work from the date her partner left the UK.

The position will be open. It's about IT Sales but she doesn't have the details as yet because the positions are being created at the moment.

IT Sales is unlikely to meet the RQF Level 6 Highly Skilled worker requirement as I cannot see any SOC on Appendix J that would match. There is a minimum salary she has to meet as well.

Internally, she has been pre-selected. Not to circumvent immigration rules, but her employer wants her in one of this positions. They will have to do RLMT for her.

If they tailor the RLMT to favour her and exclude all others, then the RLMT will fail. She can only be offered the job once the RLMT is completed and HO can and often do ask for details of all applicants and reasons why they were not chosen.

That's the scariest option for her. Because she would have to leave the UK, apply from abroad with the risk of refusal if the HO goes back digging on her immigration history.

HO doesn't have to go 'digging' for it. They will have her full details at the click of a button and that of her EU sponsor who is no longer in the UK. The form also asks for immigration applications made to HO as far as I am aware.

[Zerubbabel]

She has been an overstayer since the day her partner left the UK then, regardless of holding an EEA RC. She has no automatic rights to remain in the UK as an unmarried partner once a) the EU citizen is no longer a qualified person exercising treaty rights and b) if they are no longer in a subsisting relationship. She has also therefore been working illegally as she had no right to work from the date her partner left the UK.

She opened a can of worms when she went into denial as her EEA partner left. She had a job she liked, so she decided to stay in the UK.

She is now seeing the Tier 2 switch as a way to "reset the situation" and go back to legality. But indeed if the Home Office guys see it from the perspective of her discontinued eligibility to the EEA card, it means she worked illegally in the UK and this can attract a ban.

Her employer is a small business unit of a larger corporation (Fortune 100). They don't have a clue about how immigration maters work. They tried to pressure her into going through the EU Settlement Scheme but she managed to dodge it. That scheme wouldn't work for her obviously.

[CR001]

She won't qualify under the EU settlement scheme.

Does this small employer business unit have a tier 2 General sponsor licence?

[Zerubbabel]

She won't qualify under the EU settlement scheme.

Does this small employer business unit have a tier 2 General sponsor licence?

The business unit, no. They don't have a license for Tier 2. But the mother corporate has one and it is listed as a sponsor.

So if it comes to Tier 2 sponsoring, the company will sponsor her and but she would work on that business unit. That business unit is geographically isolated but it's fully part of the company as a whole.

[CR001]

If the actual job is not a highly skilled RQF level 6 one, with a salary of £30,000 pa or what is stated in the SOC, whichever is higher, then she won't qualify for a tier 2.

A sales person position is likely not a qualifying one.