If a Tier 2 Migrant's Contract is Terminated, When Does the Tier 2 Visa End?
Tier 2 sponsors have many commitments and compliance obligations they must uphold in order to retain their sponsorship license. Sponsor license obligations include keeping records of all sponsored employees, carrying out the right to work checks and resident labour market tests (RLMT), reporting key information to the Home Office via the Sponsor Management System (SMS). Another of these obligations is to ensure that the departure of a sponsored employee, whether due to redundancy, resignation or leaving the country, is communicated to the Home Office; this then triggers the curtailment of the employee's leave.
When does a Tier 2 visa end if the employee leaves their employer?
It is first important to point out that if a Tier 2 Visa leaves their sponsoring employee or is no longer sponsored, it is the responsibility of the employer to inform the Home Office. According to the immigration rules and guidance, Tier 2 sponsoring employees must inform the Home Office within ten days of the final day of employment (i.e. the contract end date) if:
"a sponsored migrant's contract of, or for, employment or services, or registration with a relevant body, is terminated earlier than shown on their certificate of sponsorship (CoS) - for example, if the migrant resigns or is dismissed; you must include the name and address of any new employer that the migrant has moved to if known."
This information is reported back to the Home Office online using the SMS. On receipt of the notification, the Home Office will send a letter to the employee explaining that their leave will be curtailed. The employer will also need to check that the address provided for the departing employee is correct, ensuring that the letter of curtailment is sent to the correct address.
Once the employee receives the letter of curtailment from the Home Office, they will then have 60 days or until the end of their visa, whichever is sooner, to find a new employer or leave the UK.
Related Article: Read also ‘Changing to a new employer – What you should know’
What happens if a migrant worker is put on gardening leave before their visa expires?
As an alternative to allowing an employee to leave their role before their contract ends, employers sometimes allow departing members of staff to remain with the business but not work through their notice period and be paid as normal. This is referred to as 'gardening leave.'
There are various reasons for doing this. Sometimes to prevent members of staff taking valuable information with them to competitors, they will allow them to stay at home on full pay for the duration of their notice period.
Technically, if a sponsored worker is placed on gardening leave before their contract end date, they are still employed, and hence the employer will not need to inform the Home Office that the individual is leaving before their visa expires.
Can a Tier 2 visa holder with curtailed leave find a new job?
Yes, there is nothing to stop a Tier 2 visa holder looking for new employment with a new sponsor license holder in the time they have remaining on their visa. However, anyone who does find new employment will also need to submit an application for a new Tier 2 Visa. If the individual does find employment but the business is not a sponsorship license holder, that business may be able to apply for a sponsor license in the time remaining (it takes between eight and ten weeks to secure a sponsor license).
The challenge of finding a new role is the lack of time. While it may only take a few days to find a suitable vacancy and attend an interview, the employer then has to complete a resident labour market test (RLMT), which itself takes a minimum of 28 days. If, on the other hand, the employer already has a sponsor license and has already listed the job vacancy for 28 days or more already, they can then request a Certificate of Sponsorship (CoS) without delay. This is assuming that the applicant has the skills and qualifications needed for the job, and the minimum salary requirement is met.
Another option is to secure a role on the Shortage Occupation List, which does not require the employer to complete the RLMT.
See also ‘How to switch to a new job while processing new Tier 2 visa’
Use this tool to check for companies providing sponsorship.
Can a Tier 2 visa holder switch to another visa type?
Yes, if a Tier 2 visa holder has had their contract terminated, there may be other options available instead of applying for another Tier 2 visa. If the individual has already been in the UK for five continuous years, they can apply for indefinite leave to remain (ILR). Having ILR means that they can live and work in the UK permanently without being subject to immigration control.
Another option if the Tier 2 visa holder has a partner or child in the UK is to apply for a family visa. A partner/spouse visa, for example, allows a person from a non-EEA country to stay in the UK for an initial period of 2.5 years if they are married or in a civil partnership with a British citizen or settled individual (i.e. someone with ILR or EU settled status), or if they have been living together for at least two years.
Other options to consider are the Tier 4 study visa, or the innovator, investor, or start-up visa.
From the perspective of an employee with a tier 2 visa, if you are at risk of being terminated early from your contract, it is highly recommended that you engage the services of immigration Solicitors who can support and advise you, as time is of the essence. They will explain your rights and options, and ensure you made the best possible application for a new visa.
For employers, it is important to act fairly towards their tier 2 employees, to rely on verifiable facts at all times, and to update the Home Office in accordance with their reporting obligations. Dismissing an employee can, if not handled carefully, may lead to a complaint of discrimination or unfair dismissal. As ever, seek professional advice before making any decision.
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