TIER2 - Switch Sponsorship - Dismissed by Current Employer

[Zachrf]

Hello guys,

I am facing an urgent situation and it confused everybody around me. (ex employer/new employer/Home Office Help Desk!!!)

I am working under Tier 2 visa for Company A. I got a job offer from Company B in Dec. 2012 and signed a conditional contract with them - condition is that Company B will process my new tier 2 visa application and the contract will be valid if the application be successive.

It took longer than we expected as there were holidays/market test/delay by visa application submission ect. Then finally I had been informed by Visa Apply Agent on 7th May 2013 that my Biometric card had been received and the date on it is 2nd May ( My biometric card is still with my Agent as they are still waiting for my passport etc. but I got a scan copy via email)

Then I immediately talked to my current company and asked them to check with the immigration department of Home Office as I believe due to the date on my new Tier 2 visa, I could not be able to work for them. On 9th May (yesterday) I had been told by my line manager and hr team that I am dismissed by my current company and I would be on suspension from lunch time. The suspension period will be from 9th May until the disciplinary hearing which will be on 20th May.

NOW, I have some questions as below,

1) How I should deal with this starting date when had already passed? Does that mean Home Office expects me to start with my new sponsor immediately when I get my visa? Is that possible as I need time to quit from Company A and also Company B needs a procedure to turn me on?

2) Is that my ex employer at the position to dismiss me or we are not in a valid contract from 2nd May? Do I have any misconduct to my ex employer as the starting date was not given by myself and I informed them at the earliest chance when I knew it.

3) Is that illegal if I still got pay from my ex employer after 2nd May? (they will pay me until the hearing on 20th May)

4) When will be my first day with my new sponsor? 21st May?

5) How can I make sure this situation will not affect my ILR application in the next year (5 years continuous working under Tier 2)?

Thanks for all the helps in advance.

Best Regards,
Zack [/u]

[safatafa]

Hello guys,

I am facing an urgent situation and it confused everybody around me. (ex employer/new employer/Home Office Help Desk!!!)

I am working under Tier 2 visa for Company A. I got a job offer from Company B in Dec. 2012 and signed a conditional contract with them - condition is that Company B will process my new tier 2 visa application and the contract will be valid if the application be successive.

It took longer than we expected as there were holidays/market test/delay by visa application submission ect. Then finally I had been informed by Visa Apply Agent on 7th May 2013 that my Biometric card had been received and the date on it is 2nd May ( My biometric card is still with my Agent as they are still waiting for my passport etc. but I got a scan copy via email)

Then I immediately talked to my current company and asked them to check with the immigration department of Home Office as I believe due to the date on my new Tier 2 visa, I could not be able to work for them. On 9th May (yesterday) I had been told by my line manager and hr team that I am dismissed by my current company and I would be on suspension from lunch time. The suspension period will be from 9th May until the disciplinary hearing which will be on 20th May.

NOW, I have some questions as below,

1) How I should deal with this starting date when had already passed? Does that mean Home Office expects me to start with my new sponsor immediately when I get my visa? Is that possible as I need time to quit from Company A and also Company B needs a procedure to turn me on?
Ans: what was the start date on cos that will be ur start date with company b.
2) Is that my ex employer at the position to dismiss me or we are not in a valid contract from 2nd May? Do I have any misconduct to my ex employer as the starting date was not given by myself and I informed them at the earliest chance when I knew it.
Ans: yes if u signed a contract with them and u are obliged to let them know atleast 4 weeks notice some companies tell 2 months u might need to check ur contract
3) Is that illegal if I still got pay from my ex employer after 2nd May? (they will pay me until the hearing on 20th May)
Ans: technically yes but I ll wait for experts to comment
4) When will be my first day with my new sponsor? 21st May?
Ans:start date on cos
5) How can I make sure this situation will not affect my ILR application in the next year (5 years continuous working under Tier 2)?
Ans: it shouldn't unless company a sues u
Thanks for all the helps in advance.

Best Regards,
Zack [/u]

[Zachrf]

Hello guys,

I am facing an urgent situation and it confused everybody around me. (ex employer/new employer/Home Office Help Desk!!!)

I am working under Tier 2 visa for Company A. I got a job offer from Company B in Dec. 2012 and signed a conditional contract with them - condition is that Company B will process my new tier 2 visa application and the contract will be valid if the application be successive.

It took longer than we expected as there were holidays/market test/delay by visa application submission ect. Then finally I had been informed by Visa Apply Agent on 7th May 2013 that my Biometric card had been received and the date on it is 2nd May ( My biometric card is still with my Agent as they are still waiting for my passport etc. but I got a scan copy via email)

Then I immediately talked to my current company and asked them to check with the immigration department of Home Office as I believe due to the date on my new Tier 2 visa, I could not be able to work for them. On 9th May (yesterday) I had been told by my line manager and hr team that I am dismissed by my current company and I would be on suspension from lunch time. The suspension period will be from 9th May until the disciplinary hearing which will be on 20th May.

NOW, I have some questions as below,

1) How I should deal with this starting date when had already passed? Does that mean Home Office expects me to start with my new sponsor immediately when I get my visa? Is that possible as I need time to quit from Company A and also Company B needs a procedure to turn me on?
Ans: what was the start date on cos that will be ur start date with company b.
2) Is that my ex employer at the position to dismiss me or we are not in a valid contract from 2nd May? Do I have any misconduct to my ex employer as the starting date was not given by myself and I informed them at the earliest chance when I knew it.
Ans: yes if u signed a contract with them and u are obliged to let them know atleast 4 weeks notice some companies tell 2 months u might need to check ur contract
3) Is that illegal if I still got pay from my ex employer after 2nd May? (they will pay me until the hearing on 20th May)
Ans: technically yes but I ll wait for experts to comment
4) When will be my first day with my new sponsor? 21st May?
Ans:start date on cos
5) How can I make sure this situation will not affect my ILR application in the next year (5 years continuous working under Tier 2)?
Ans: it shouldn't unless company a sues u
Thanks for all the helps in advance.

Best Regards,
Zack [/u]

Thanks safatafa,

I understand I have to give 4 weeks notice to Company A. However I am not able to submit my resign letter before I know the date on my visa. The date on my COS was 15th March which had been passed when Home Office dealing with my case. I passed my information to Company A as soon as I could and mentioned I wanted to resign. In my employee policy, a short notice could be applied if needed.

[manci]

The CoS start date of 15 March doesn't mean that you have to start with the new employer on that date, in fact you couldn't because your change of employment application wasn't approved at that time.

As of 2 May you have Tier 2 leave to work for the new sponsor/employer You should now agree an actual starting date with them.

From the time you, or the agent, received the new BRP card you cannot continue working for Company A. and they are not allowed to continue employing you.

Under your employment contract with them you have to give 4 weeks notice but you cannot now. This is an employment law issue, not an immigartion matter. Look in the employment contract to see if there are any sanctions for you terminatiing the employment without giving notice. Try to reach an amicable agreement with Company A but if you cannot seek employment law advice. IMHO they will probably just seek a financial settlement.

[Zachrf]

The CoS start date of 15 March doesn't mean that you have to start with the new employer on that date, in fact you couldn't because your change of employment application wasn't approved at that time.

As of 2 May you have Tier 2 leave to work for the new sponsor/employer You should now agree an actual starting date with them.

From the time you, or the agent, received the new BRP card you cannot continue working for Company A. and they are not allowed to continue employing you.

Under your employment contract with them you have to give 4 weeks notice but you cannot now. This is an employment law issue, not an immigartion matter. Look in the employment contract to see if there are any sanctions for you terminatiing the employment without giving notice. Try to reach an amicable agreement with Company A but if you cannot seek employment law advice. IMHO they will probably just seek a financial settlement.

Thanks Manci and there are some updates:

yes Manci, I think you are right. The 2nd May should be the date I supposed not to be able to work for the company A. Apparently, 7th May is the earliest chance for me to flag it up to both company A and B as I knew it from my Agent. I immediately informed the 2 companies and got the answers - Company B is preparing to turn me on and require the last day from company A; as the same time an investigation had been took in place by company A about my immigration status. Then 9th May I had been told a dismissal procedure had been processed immediately and I would be suspended from my duty from lunch time on 9th May until an final hearing in one week.

Then I proposed a solution that I would like to submit a resignation with a short notice instead of dismissal in order to get a fair employee record and ending my contract sooner with company A (I presume company A wants me off asap as well). I got the answer from company A this morning that my resignation letter been accepted and I will complete my contract with company A by today 10th May 2013. I informed company B that I can start with them from Monday next week. Company B then requests my hard copy of Biometric Card to start with me on next Wed when is the earliest day then can make. My Biometric Card is posting to me on today and will be with me on tomorrow. Finally, I presume I would start with company B on 15th May. Obviously my last day with company A is today 10th May.

Then, questions,

1) Do you think up to now, is there any misconduct anybody made in the whole story against UKBA's policy or immigration law? Is any chance could affect me when I apply my ILR in next year when I qualify the 5 years continuous period?

2) It is confused by the starting date on the COS and visa date. I understand Manci's point and it is same as I been told by the company B's HR and my agent - The date on my visa - 2nd May will be the true date of my starting date which I should try my best to comply with. However, in the tier 2 policy guidance clause 199 - give different story and I could not understand how it works, please see it as below:

199. It is recommended that you do not commence employment until you have received your biometric residence permit (BRP). However, on the basis of your approval letter, if you and your sponsor agree to commence the employment before you have your BRP both you and your sponsor carry the risk of having no statutory excuse against a civil penalty if
the BRP card is incorrect or withdrawn by us. You can continue working for your previous sponsor until the start date on your new Certificate of Sponsorship, provided your previous leave has not expired.[/color]

Thanks again for all your advice and helps.
Zack

[manci]

questions,

1) Do you think up to now, is there any misconduct anybody made in the whole story against UKBA's policy or immigration law? Is any chance could affect me when I apply my ILR in next year when I qualify the 5 years continuous period?
don't think so, the only slight transgression was that you should not have worked for employer A after 2 May but you did for a few more days. However, this can be explained by the fact that you didn't actually receive your BRP by 2 May because an agent's involvment delayed it.

2) It is confused by the starting date on the COS and visa date. I understand Manci's point and it is same as I been told by the company B's HR and my agent - The date on my visa - 2nd May will be the true date of my starting date which I should try my best to comply with. However, in the tier 2 policy guidance clause 199 - this clause doesn't apply to you, it just means that you could have worked for sponsor A until 15 March (the work start date in the new CoS) had you received your new leave before that date.