ILR eligibility after visa has been curtailed



  • Hello,

    I would really appreciate your help with the following question.
    I have obtained my first Tier 2 visa in January 2014 but I left work in December 2014. I have received my curtailment letter some time in January 2015 and i cannot find the letter to confirm the date. I have then successfully re-applied for a new sponsor in April 2015. My question is, am I eligible to apply for ILR in January 2019? Will the time spent on curtailment be contributed to the continuous 5 years in UK?

    thank you in advance,
    Victoria


  • Immigration Adviser

    Hi @mirvik,

    As you left your work in December 2014 and did not obtain further employment until April 2015 your application for Indefinite Leave to Remain will be refused on the basis you have not had continuous employment.

    The rules state that you have 60 days from ending one employment to starting further employment. This 60 days is taken from the date your employment actually ended and not from the date the curtailment letter was issued. Therefore there is currently a gap of more than 60 days in your employment.

    If you have any further questions please do not hesitate to contact me.

    Kind Regards,



  • Dear Lauren,

    thank you for your reply.
    I have been reading through many chats and forums and there is evidence that people in a similar situation to mine were given ILRs, are you absolutely sure about this? Are the 60 days not the curtailment days given?

    Immigration Rules part 6A: the points-based system
    Points-based system (paragraphs 245AAA to 245ZZE).
    245AAA. General requirements for indefinite leave to remain.

    (b) Except for periods when the applicant had leave as a Tier 1 (General) Migrant, a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, a Tier 1 (Exceptional Talent) Migrant or a highly skilled migrant, the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor.

    Also, how does the 28 days of overstay allowed for applications submitted before April 2016? Does this apply to my case?
    My employment ceased on 27.12.2014 and I have applied for a new visa on 01.04.2015.

    Thank you again for your reply,
    Kind regards,
    Victoria




  • Immigration Adviser

    Please note that the new Statement of Changes contains relevant news for people in your situation (see Explanatory Memo para 7.23) - once fresh guidance is issued we will know more: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/665826/CCS207_CCS0817919842-4_Statement_of_Changes_in_Immigration_Rules-EM_WEB_ACCESSIBLE__2.pdf



  • @kim having read the new statement of changes i did not find any reference to changes to the rules regarding overstaying. could you kindly refer to my initial question and lit some light on it, it is unclear if the time spent on curtailment is counted towards 5 years. Could you kindly advise.
    Thank you very much in advance,
    Victoria


  • Immigration Adviser

    Dear @mirvik

    As Lauren stated in her previous post, the current rules state that the 60 days after you have received your curtailment notice can be counted toward your 5 year qualifying period, however, you must obtain new employment within those 60 days and make a new Tier 2 application.

    If you spend 60 days or more out of employment then this will break your 5 year qualifying period and you would not be eligible to apply for ILR on this basis.

    However, as @Kim has pointed out the new statement of changes regarding your situation is as follows:

    7.23. An amendment is being made so that Tier 2 Migrants are no longer required to have been continuously employed throughout the qualifying period to be eligible for settlement. The provision is unnecessary as a Tier 2 migrant who is no longer working for their Sponsor is subject to curtailment.

    Before we can assess how this will impact your situation we must await further guidance to be published by the Home Office.



  • Dear Jason,

    thanks for your reply, but I am confused as Lauren clearly stated that 'The rules state that you have 60 days from ending one employment to starting further employment. This 60 days is taken from the date your employment actually ended and not from the date the curtailment letter was issued. Therefore there is currently a gap of more than 60 days in your employment.'

    You are stating the opposite though, saying that the 60 days are counted from the date of curtailment notice served, which in my case was the 3rd of March 2015. I applied for a new visa on 01.04.15 therefore i was within the 60 days of curtailment.

    Thanks for digging dipper into this topic for me. Could you advise when this new guidance to an amendment could be expected to be published?

    Kind regards,
    Victoria


  • Immigration Adviser

    @Jason has presumed that the curtailment notice was issued as soon as the job ends, which is actually very rare. Regarding your situation, if you apply at the moment, as @Lauren pointed out, your application would fall for refusal. The new legislation is due to take effect from 11 Jan 2018, so we hope for fresh guidance shortly.


  • Immigration Adviser

    @mirvik

    I think I must clarify by what we mean the 60 days. We are referring to 2 separate 60 day periods.

    Firstly, once you receive your curtailment notice you have 60 days to either apply for further leave to remain or leave the UK.

    Secondly, current Tier 2 rules state that you must find new employment within 60 days of your previous employment coming to an end, otherwise it will break your 5 year qualifying period.

    This being the case, although the 60 days you spend in the UK after receiving your curtailment notice can be counted toward your 5 year qualifying period, you MUST have found new employment within 60 days of your previous employment ending.

    I hope this makes our responses clearer.

    However, as we have stated above, the statement of changes appear to be removing the requirement to find new employment within 60 days of your previous employment ending.



  • Dear All,

    thank you for trying to explain this to me, but I am still unclear. As you could see I had attached a few links for Lauren at the top of this thread pointing her to the Freedom of Information forum where people shared their experiences getting ILRs even after they spent more time than 60 days after the employment ended, in fact a person got ILR after spending 8 months on curtailment.

    I am still quite unclear about this as I was hoping that you might be aware of the situation. I hope that the new guidance will cover this topic in full.

    Hope you have a lovely Xmas!
    Kind regards,
    Victoria


  • Immigration Adviser

    Thanks Victoria @mirvik - the information given in that FOI response by the Home Office contradicts the current guidance, and I think demonstrates that some case workers are confused themselves. This would be why some ILR applications have been granted when they really shouldn't have been. It is good to see that the Home Office have recognised this as a problem and are now providing for greater flexibility within the legislation. We will post again once the new guidance becomes available. Happy Christmas to you also!



  • thank you Kim , I am looking forward to having received news from you!


  • Immigration Adviser

    @mirvik We now have the new guidance but it is not helpful I'm afraid! It simply states that the Tier 2 rule covering gaps in employment of 60 days has been removed, but provides no reassurance that those applicants with gaps longer than 60 days will be eligible for ILR (pg 3):
    https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/673619/Calculating-continuous-leave-v16.0EXT.PDF

    It should be noted that the absence of information in Home Office guidance can usually be relied upon however, and I would therefore be confident now of your application being approved. If you would like assistance with submission please do contact us.


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