What are the rules for Tier 2 visa holders if you lose your job?
Should a Tier 2 visa holder lose their job, however, this will impact their permission to remain lawfully in the UK.
Your former employer will be required to notify the Home Office of your contract termination within 10 days of your last working day. You should then receive a letter about your curtailed leave.
The law states that a Tier 2 visa holder who loses their job will have to leave the UK within 60 days, or the expiry of their visa, whichever is the shorter. There is no grace period. Once the 60 days are up the visa holder has to leave, or they will be considered to be overstaying and in the UK illegally.
Can you stay in the UK?
A Tier 2 visa holder who loses their job will have 60 days, or less if the visa expires sooner, to find another suitable job and apply for another Tier 2 visa, or apply for a different type of visa to remain in the UK.
Some alternative visa options for Tier 2 visa holders in this position could include:
Apply for another Tier 2 visa
If you do lose your job, it is of course possible that you will find another one. However, as with your original job, both the employer and the role will have to meet certain criteria.
First, you must obtain a job with a licensed employer.
There is a ‘Register of Licensed employers’ on the gov.uk website. There are over 30,000 employers on the list.
Second, the job must meet the Resident Labour Market Test (RLMT) requirements. The RLMT means that every job must be advertised for 28 days before it is opened up to applicants from non-EEA countries.
If the job has already been advertised for 28 days when you apply then the employer can offer you the job and the certificate of sponsorship immediately. However, if the employer needs to apply for a license to be able to sponsor non-EEA nationals then this will take more time.
If you are able to obtain a job which is on the Shortage Occupation List then your prospective employee will not need to satisfy the Resident Labour Market Test. Nor will the employee need to satisfy any earnings requirements. Assuming the employer is certified to sponsor non-EU citizens, the employer can simply issue the job offer and the Tier 2 certificate of sponsorship immediately.
Jobs on the Shortage Occupation List include nurses and some categories of secondary school teachers.
You could be eligible for this if you either have British children, or a partner or spouse who is British or has settled status in the UK.
The so-called ‘Partner’ visa allows you to obtain any job, with no minimum salary requirements and no requirement for the employer to be licensed.
You can apply for this visa if you want to set up a business in the UK, have sufficient funds and your idea has been approved by one of the UK government’s ‘Innovator endorsing bodies’.
You can apply for a start-up visa if you have a business idea that is innovative, new and viable and you want to set it up in the UK.
Your idea must be endorsed by a UK higher education institution or a reputable business organisation.
Indefinite Leave to Remain
You may be eligible to apply for Indefinite Leave to Remain (ILR) if you have already lived in the UK for at least five years under any legal immigration arrangement. If you were successful in obtaining ILR then you would be free to live in the UK without further immigration control and to obtain any type of job with any employer.
Tier 4 (General) Student Visa
You can enrol on a course of study and apply for a student visa.
However, the qualification you are studying for must be at a higher level than the qualification(s) you already hold. In addition, you will still have to seek sponsorship, only this time it will be from the higher education institution at which you intend to enrol. This can be a lengthy process. Therefore, it may not be a suitable option given the relative time pressure imposed by the 60 day period.
If you are a frontline health worker and your Tier 2 visa would have expired before the 1st of October, 2020 then you can apply for a one year extension for free for you and your family.
Persuade your current employer to allow you to stay in your job
You could try to persuade your employer to allow you to stay on in your job, either temporarily or until the expiry of the visa. It might be worth taking professional employment law advice to make sure that your employer has acted lawfully in dismissing you. If the employer has not, you may have some leverage to negotiate.
What are the timescales?
Tier 2 visa holders should be careful that they follow the rules on notifying UK Visas and Immigration (UKVI) and the timescales that apply once their employment has been terminated.
Your employer is responsible for notifying UKVI of the end of your employment contract within ten days of the date it terminated. The employer also has to inform UKVI of the visa holder’s last known address. Therefore you should make sure that your employer has your current address in order that you receive the response from UKVI.
Once it has received your employer’s notification, UKVI will write to you to inform you that your visa has been shortened (or ‘curtailed’) to 60 days. If your visa already had less than 60 days to run then they will not shorten it, and may not write to you.
In law, the 60 day time period only starts to run once you are notified of it. It can take UKVI up to several weeks to write to you. In this way, you could gain an extra couple of weeks’ stay in the UK, on top of the 60 days.
If there are medical or family reasons why a curtailment to 60 days would be particularly difficult for you then you should write to UKVI at this stage to ask them to grant you more time.
It is also possible for UKVI to decide to send a visa holder back to their country of origin immediately and not allow them the 60 day period. UKVI may take this decision if it considers that the visa holder was to blame for losing their job.
If you resign from your employment, it is highly advisable that you send a copy of your resignation letter to UKVI in order that you are complying with your responsibilities under the visa regulations.
Provided that your new employer is able to grant you the certificate of sponsorship before the expiry of the 60 day period, you will be able to stay in the UK pending the grant of your Tier 2 visa.
In other words, you will be able to stay in the UK beyond the 60 day period, even though the application for your new Tier 2 visa is still pending at UKVI. You will not be able to undertake paid employment during this time so should be prepared to support yourself financially.
Government guidance states that you are not able to start your new job until you have received your biometric residence permit with your new visa.
It could be that you found a new job with an employer that issued you with a certificate of sponsorship and enabled you to make a fresh Tier 2 visa application, while you are still in your old job. If this is the case, you can continue working for your original sponsor until the start date on your new certificate of sponsorship as long as your current visa is still valid.
What if you overstay?
If a Tier 2 visa holder fails to obtain another qualifying job, or is unsuccessful in obtaining a different visa, then they will have to leave the UK. If they overstay, i.e. they remain in the UK beyond the expiry of the 60 day period, then they will be considered to be in the UK illegally.
The possible consequences of this are that the person will automatically be refused a visa if they apply to come to the UK in the future and / or that they will be deported from the UK.
As mentioned above, there is no longer a 28 day grace period after the expiry of the 60 day period. It is possible to argue that there were exceptional reasons why you applied late for the visa which were outside your control, or that of your representative. In this case you must still have made the application within fourteen days. It would be unwise to rely on this line of argument unless there really were extraordinary circumstances. Even then you cannot guarantee that the UKVI would decide in your favour.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.