Tier 2 (ICT) to Tier 2 (general) cooling off period help

[adytaylor]

I am really struglging to get my head around these rules so would really really appreciate some help. Here's the story...

Girlfriend has been in UK under a Tier 2 ICT visa. She is changing jobs and so now needs a Tier 2 General. Is she able to apply for a new general visa without the cooling off period applies? Unfortunately the new company's sponsorship application has yet to come through (been waiting for over 5 weeks now) and so it doesn't look like the visa application will be made before her 60 day period is up (as she has already left previous ICT visa employer) meaning she will have to back to home country an make application from there - is this going to have any impact?

Many thanks!!!

[manci]

has her visa already been curtailed?

[adytaylor]

She was made redundant at company so is in the 60 day leave period at the moment - this will run out on 17th August so getting very close! We never thought the new company would find it so difficult to get their sponsorship so timing was nerver really a consideration!

Looks like she will have to go back to Chile, as can't see CoS being granted in next 2 weeks seeing as the border agency has such a backlog, and apply for new Tier 2 general from there.

Her ICT visa was issued on 30 March 2010 so I am HOPING that cooling off period doesn't apply??

[adytaylor]

Also I see you posted the following in another thread

"It is also correct that your visa will be curtailed to 60 days from the time UKBA imakes their decision to curtail. However, what is not known is how long UKBA will take making the decision to curtail from the time you previous employer informs them. This is anybody's guess but you will definitely have more (may be considerably more) than 60 days from the time you resigned before you have to leave the UK provided you don't find another sponsor in the meantime."

Is there are way of finding out the exact day when you need to leave? We have assumed it is 60 days from her last official day's employment but you suggest it could be more - especially considering how busy the UK border agency seems to be?

[manci]

Her present visa probably only expires in 2013 so there are no problems on that account. You haven't directly answered my question but from what you say it appears that she hasn't yet been contacted by UKBA about the curtailment of her leave.

The 60 days count from the date of UKBA's decision, not from the date she left her previous employment, so if UKBA haven't taken the decision yet (because they are busy, etc. etc....) she will have at least 60 days from now.

Sponsor licence applications currently take 2-4 months to process

When she gets the notice of curtailment, and approx. 4 weeks before her curtailed visa expires, she should ask her prospecticve employer to send an email to UKBA to the following two addresses explaining the circumstances and requesting urgent treatment of the application.
sponsorlicensing.support@ukba.gsi.gov.uk
scoc@ukba.gsi.gov.uk

The prospective employer can also make enquirires about the progress of their application to 0300 123 4699.

Has the prospective employer already done the resident labour market test for her job (takes 28 days)?

If in the end she has to leave because she doesn't have a CoS at the time her visa expires then unfortunatekly the 12 month coolig-off period will apply to her.

[adytaylor]

Her previous company has informed the border agency that her employment has terminated I know that for sure but the 60 days definately doesn't start from then but from when you are contacted? How would they do that? Via the previous employer or directly to your last known address?

Is there any way of checking - without obviously 'encouraging' them to start the 60 day deadline - as she doesn't want to overstay and hurt future chances?

Are you sure about the cooling off period? I thought it only applied to visas post April 2010 or am I confusing things?

Thanks for all your help by the way!!

[adytaylor]

Had a thought...

Could she get her prospective employer to submit the visa application now and ask UKBA to hold it until sponsor decision has been made? Therefore getting round the over-stayer worry as UKBA will have her passport?

[manci]

UKBA will write to her at the address her previous employer recorded for her. If her address changed since then she should tell UKBA (change of circumstances, see below).

There is no way, and no need, to check when UKBA will make the decision to curtail her visa. If she does not stay beyond the expiry date of her present visa, or the end of her eventually curtailed leave, whichever the earlier, she will not be an overstayer.

There are some exceptions for the cooling off period but they are only for ICTs, not T2G.

Any visa application has to be submitted by her, not the employer. The employer only provides the CoS.

You ought to read the Tier 2 policy guidance which answers most of your questions:
http://www.ukba.homeoffice.gov.uk/sitec ... idance.pdf
change of circumstances para 211
curtailment para 221-225
cooling-off para 64

[adytaylor]

Thanks for all your responses. Have read through the policy guidance document which raised hopes but have now spoken to lawyers and the UKBA helpline who both say that 60 day period starts from end of contract and that even though it clearly states in guidelines that they'll contact you they never do. There doesn't seem to be anyway of checking what date the UKBA will start classifying you as an overstayer so to be safe have to assume it was from end of contract!

They also said that can only submit visa application when you have CoS and not before (asking them to hold it until CoS is granted)

Guess we're just back to hoping that company can get Cos in next 2 weeks!

[manci]

You have been incorrectly advised (surprised by the lawyer's advice, not surprised by the Helpline's advice). See the detailed description of the process of curtailment here:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
This is a 106 page document, look at pages 33-36.