When does the Tier 2 Cooling Off Period apply?

When does the Tier 2 cooling off period apply? 

The Tier 2 cooling off period prohibits a person who has previously held a Tier 2 visa from returning to the UK for a period of 12 months, or from switching back to a Tier 2 visa from another UK leave category within 12 months.

The cooling-off period applies where an individual is currently either:

  • overseas and their last grant of Tier 2 leave has expired or ended; or 
  • in the UK and had an earlier period of Tier 2 leave, but then switched to a different immigration category and now wishes to apply again under Tier 2.

Tier 2 cooling off period exemptions

There are a number of exemptions where the Tier 2 cooling off period would not apply, which include the following instances:

  • The applicant is in the UK on a Tier 2 visa and applying for an extension to their existing leave.
  • The applicant is in the UK on a Tier 2 visa and is making a change of employment application.
  • The applicant is returning to the UK as a ‘high earner’, for which the current minimum salary requirement is £120,000.
  • The applicant is applying under Tier 2 (ICT) and the gross annual salary stated on the applicant’s current certificate of sponsorship (CoS) is £120,000 or higher (or £155,300 if their Certificate of Sponsorship (CoS) was assigned before 6 April 2017).
  • The applicant is applying under Tier 2 (General), Tier 2 (Minister of Religion) or Tier 2 (Sportsperson) and the gross annual salary stated on the applicant’s current CoS is £159,600 or higher (or £155,300 if their CoS was assigned before 6 April 2017).
  • The applicant was only in the UK as a Tier 2 migrant during the last 12 months for a short period or periods with a CoS which was assigned for 3 months or less.
  • The applicant has had more than one period of Tier 2 leave in the last 12 months and each CoS was assigned for less than 3 months, even where they may total over 3 months.

When does the Tier 2 cooling off period begin?

The Tier 2 cooling off period begins either:

  1. after the expiration of the Tier 2 migrant’s previous visa, or
  2. if the migrant left the UK before visa expiry, the earliest date from which they can evidence that they had left the UK and have not since returned.

Complications can arise where an applicant’s previous leave was ‘curtailed’. In such circumstances, the expiry date will normally be 60 days from the date of curtailment, as notified by the Home Office.

If an applicant is concerned that their leave may have been curtailed but has not received notification from the Home Office confirming this, they should contact UKVI to enquire about their leave status.

Can the Tier 2 cooling off period start earlier than the date their leave expired?

Where the applicant left the UK before their Tier 2 leave expired, the 12 month period can start earlier than the date their leave expired but only if they can provide evidence of having not been in the UK for a period of 12 months immediately before that date.

Evidence may include, but is not limited to:

  • travel tickets or boarding card stubs, but only if the migrant’s last sponsor also sent a report via the Sponsor Management System at the time, confirming their employment in the UK had ended;
  • exit or entry stamps in the migrant’s passport confirming they were not in the UK;
  • a letter from the migrant’s overseas employer confirming the date they started work overseas, after returning from the UK;
  • other evidence that shows the migrant was not in the UK.

Where evidence is produced and accepted, the Home Office will calculate the cooling off period to start from the earliest date supported by evidence.

Applying the Tier 2 cooling off period: Case studies 

Case study 1

The applicant was issued a 3 year Tier 2 ICT Long Term Staff visa to allow them to work for their current employer’s UK subsidiary. The project in the UK was however cancelled, and the applicant never travelled to the UK. The applicant has now secured a new job in the UK working for a different employer.

In this instance, the cooling off period does apply. The applicant cannot be employed under a Tier 2 visa until the current visa has been withdrawn by the current employer and 12 months has elapsed.

Case study 2

The applicant was previously issued a Tier 2 General visa, but their employment was terminated prematurely. Their leave was curtailed and they returned to their home country. The applicant has secured employment in the UK with a sponsor who has completed a resident labour market test and now wishes to submit a request for a Restricted Certificate of Sponsorship. In this instance, the cooling off period does apply.

Case study 3

The applicant was in the UK for 3 years under a Tier 2 ICT Long Term staff visa before returning to their home country. Working for the same company, the applicant is needed to return to the UK for a new project. The cooling off period does however apply, and the applicant has to remain outside of the UK for 12 months from the date they left the UK under their previous Tier 2 visa.

Case study 4 

The applicant was previously employed in the UK on a Tier 2 visa. After meeting and marrying a British citizen, the applicant then switches from their Tier 2 visa to a spouse visa. In this circumstance, the cooling off period applies, and the application will not be able to switch back to a Tier 2 visa for 12 months.

Case study 5 

The applicant currently holds a Tier 2 General visa and has accepted a job offer from a new employer in the UK. The applicant can submit an application for a fresh grant of leave under Tier 2 (General), provided that the new application is made while the applicant is in the UK and their current leave has not expired.

Need advice on the Tier 2 cooling off period? 

As immigration law specialists, we are experienced advisers to Tier 2 sponsor licence holders on the application and implications of the Tier 2 cooling off period when hiring and transferring employees.

Please contact us with any queries relating to the Tier 2 cooling off period, or wider questions about sponsor licence compliance, a sponsor licence application or sponsor licence renewal.

By | 2017-09-03T00:14:06+00:00 August 26th, 2017|Comments Off on When does the Tier 2 Cooling Off Period apply?