What Is A Transfer Of Undertakings And How Does It Affect A Skilled Worker Visa Holder?
By Amar Ali, Immigration Solicitor
Understandably, migrant workers, including Skilled Worker visa holders, may be concerned that any change of employer may jeopardise their legal immigration status, but this should not be the case. As stated in part 9 of the immigration rules, Skilled Worker visa holders transferred under TUPE do not need to apply for a new work visa. If you are in this position, your employer must inform the Home Office that you have been transferred under TUPE. In some cases, it may be that the new owner has to register to become a licensed sponsor as part of this process. The Home Office will then check that the correct process has been carried out; the guidance used by sponsoring employers states, “If the applicant has been subject to a transfer under TUPE (or similar as listed above), the Sponsor Licensing Unit (SLU) will check the transfer was done correctly”.
The slight snag here is that the rules clarify that in order for a Skilled Worker visa holder to transfer under TUPE without applying for a new visa, not only must the new employer have a valid sponsor license and accept responsibility for your employment (they do this using the online Home Office SMS portal), your duties and role must remain the same. There is always a possible risk that the new employer’s sponsor license application may be refused, they don’t apply within the 20 days they are required to, or they seek a change to your role and/or duties. Where possible, it is recommended that you seek clarification on this latter question as soon as you can to ensure that you have the continuity of employment needed to retain your current visa.
What If I Am Transferred To A New Employer In The Public Sector?
Within the public sector, there are other employee protections and provisions similar to TUPE under which the Home Office will also not require Skilled Worker visa holders to apply for a new visa; these include:
- Cabinet Office Statement of Practice on Staff Transfers in the Public Sector
- section 23 of the Public Bodies Act 2011
- the Transfer of Undertakings (Protection of Employment) (RCUK Shared Services Centre Limited) Regulations 2012
- the Transfer of Undertakings (Protection of Employment) (Transfers of Public Health Staff) Regulations 2013
- the Transfer of Undertakings (Protection of Employment) (Transfer of Staff to the Department for Work and Pensions) Regulations 2014
Wrapping Up
While the immigration rules offer an exemption from applying for a new work visa for transferring employees, there is considerable reliance on the employer to follow the correct process. Given the strict timescales which must be adhered to and the reliance on your employer to continue employing you for the same role and duties, there is always a possibility that the process does not proceed smoothly. For this reason, if you are a Skilled Worker visa holder and have recently been informed that you are being transferred to a new employer under TUPE (or similar regulations), consider seeking legal advice from an immigration lawyer as soon as possible who can guide you through the process.
