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Howard
Howard, Immigration Lawyer
Category: UK Immigration Law
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Experience:  Senior Partner with nearly 20 years experience in UK Immigration Law.
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I came to UK on TIER 2 ICT Long Term in August-2009. Since

Resolved Question:

I came to UK on TIER 2 ICT Long Term in August-2009. Since then the visa has been extended three times
- Extension-1 : for 1.5 yrs in August-2011
- Extension-2 : for 0.5 yrs in Feb-2013
- Extension-3 : for 2 yrs in August-2013

My current Visa expires in August-2015 and my current Certificate of Sponsorship expires in August-2015. I have a different sponsor willing to sponsor my Tier 2 General VISA via an unrestricted COS.

Questions

1. Can my current Sponsor terminate or cancel the current COS?
Scenario-1. My current COS is terminated before a new COS is issued. And the new COS is issued one month after the terminated COS and the new COS has a start date that is 2 months after the date of termination of the current COS.
Scenario-2. Assume the new COS issued before the current COS is terminated but it has a start date that is 2.5 months post termination/cancellation of current COS.

1-A In the two scenarios above can you please highlight the impact on ILR eligibility and will my stay in Tier 2 ICT be still be considered for calculating the 5 year period?
1-B. Am I legally allowed to stay in UK if the current COS is terminated/cancelled and if I do not have a new COS issued to me?

2. Can you please confirm if I would be able to switch in to a Tier 2 General VISA in-country, without needing to go back to my home country? Also would my dependant (presently as Tier 2 dependents) also need to change their VISA - if yes, would that be done in-country as well please ?

3. If I switch to Tier 2 General VISA via an unrestricted COS -

3-A Does my stay on Tier 2 ICT Long Term, since August-2009, count for ILR?

3-B What are the other criteria/eligibility rules for ILR?

3-C When is the earliest date when I can apply for ILR? I will be completing 5 yrs continuously in UK in August-2014 and I have been away from the country for 35 days (includes periods of 10 days + 15 days + 10 days) during the period.

4. The Biometrics Residence Permit Card that has been issued to me currently says Tier 2 ICT Long Term. Once I switch to Tier 2 General VISA via an unrestricted COS, Do I need to request for new BRP card? And Can you guide me to the process?
4-A Is there anything I need to carry when I travel abroad post switching to Tier 2 General VISA via an unrestricted COS?
Submitted: 12 months ago.
Category: UK Immigration Law
Expert:  Wendy-Mod replied 12 months ago.
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Customer: replied 11 months ago.

I have not received a response to my queries yet. Please assist.


 


Thanks,

Expert:  Fran-mod replied 11 months ago.

Thank you. We will continue to look for a professional to assist you. Please let me know if I can be of any further assistance while you wait.
Expert:  Howard replied 11 months ago.
1. A - Technically employment and your visa will cease on the date that the CoS is terminated. Many employers will forget to do this though. You must either leave the UK or submit a new application within 28 days of the expiry of your visa, which is either the expiry date on your visa or the termination date of the CoS, whichever is sooner. I would suggest that the CoS should be dated to start on a date that enables you to submit a valid application. The impact upon ILR should be fairly obvious as you would not be able to submit a valid application and it could be potentially be considered a break in the continuous residence period. Applicants will sometimes get away with this but you need to avoid this situation if possible.

1. B - If your CoS is terminated you must leave the UK within 28 days of the date the CoS is terminated.

2. - You can switch within the UK. Despite currently holding a Long Term visa that would not usually allow switching, because this was an extension of an older visa that initially commenced prior to 6 April 2010 you can switch within the UK to Tier 2 General for a different employer. Your Dependants should all apply at the same time as you.

3. A - Yes, your time in the UK under ICT will count toward ILR.

3. B - The requirements by the time you apply may have changed. Current requirements are that you and your wife have passed the Life in the UK Test and can evidence English Language ability and that you have not been outside the UK for more than 180 days in any 12-month period. Any absences greater than your contracted holiday allowance should be for business purposes. The employer will also need to confirm details of your employment and the occupation code and salary and also confirm absences and that your employment is still required. You must also not have any unspent criminal convictions. Your family will be able to apply at the same time as you if they came here prior to 9 July 2012 and have been here at least 2 years at the time of application.

3. C - If you entered the UK within 3 months of the start date of your visa then you qualify for ILR 5 years after the start date of your first ICT in 2009. If you entered the UK more than 3 months after the start date then you qualify 5 years after the date of entry. In both cases you can apply up to 28 days before the date on which you qualify.

4. - A BRP is automatically provided when your application is approved. Your previous BRP will be retained by the Home Office.

4. A - As always you must travel with your BRP and passport.

I hope the above fully answers your questions. Please remember to rate the service provided and after doing so please feel free to ask any further questions you may have relating to this topic.
Customer: replied 11 months ago.

UKVisas



Hi UKVisas,
Thanks for your detailed response. I have a few follow-up questions to provide me with further clarity -



1-A (Follow-Up) - Assume my current COS is terminated on 10-Oct-2013. My new COS with start date as 01-Nov-2013, is issued on 14-Sep-2013. Given the grace period of 28 days between Old Cos Expiry to New COS Start date, in this scenario am I right in saying that this is not considered a break in the continuous residence period towards ILR?


 


3-B (Follow-Up) -"Your family will be able to apply at the same time as you if they came here prior to 9 July 2012 and have been here at least 2 years at the time of application."
My 5 year continuous stay requirement for ILR will be met in August-2014, when I will be eligible to apply for ILR. My wife came to the UK the first time in Nov-2009. After the birth of my son, due to medical reasons, my wife and son were in India for the period April-2012 to Dec-2012 (Continuous period of 8 months). Apart from this break, there has not been any other significant stay outside UK. Given this when is my wife eligible for ILR, assuming my ILR gets successfully approved when I apply for the same in the month of August-2014? Also does this hold true for my son as well, who was born in Dec-2011 in UK?


 


Thanks,

Expert:  Howard replied 11 months ago.
1-A - That would be ok and should not constitute a break in the residence period BUT you can submit your Tier 2 General application before your CoS is terminated - if the new CoS has been issued then it can be used and your new visa should have a start date of 01 November 2013 regardless of when you apply. In this way you would avoid any doubt about the residence period as you could make an in-time application and this is always preferable. So my advice would be to get the new CoS and apply before your current CoS is terminated unless you have a particular reason for not doing so.

3-B - With regard to your son, a child born in the UK can either be included with your ILR application OR when you have obtained ILR he can apply for Naturalisation - your choice. The rule is that a child born in the UK can apply for Citizenship if you are settled (ILR) at the time of application. This saves some money on application fees. Your wife should be ok for ILR in the situation you have described and should apply at the same time as you - use form SET(O) and include her on that form as your dependant (and your son if you prefer to do it this way).
Howard, Immigration Lawyer
Satisfied Customers: 459
Experience: Senior Partner with nearly 20 years experience in UK Immigration Law.
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