The Home Office has the power to issue Tier 2 Curtailment Notices to Tier 2 visa holders to reduce or revoke their existing leave to remain in the UK. There are a number of situations where the Home Office may issue a skilled worker with a Tier 2 Curtailment Notice and this usually happens where there has been a breach of visa conditions or they are no longer eligible for a work visa. There is no statutory right of appeal or administrative review available to challenge a Tier 2 Curtailment Notice but there other avenues available to challenge the legality of the notices.
What is a Tier 2 Curtailment Notice?
A Tier 2 Curtailment Notice is a formal document issued by the Home Office informing Tier 2 workers that their right to stay in the UK has been revoked. There are a number of different reasons as to why an individual may be served with a notice. Once the Tier 2 Curtailment Notice has been issued, Tier 2 workers will have 60 days to voluntarily leave the UK or make a fresh application to remain in the UK. A failure to comply with the Tier 2 Curtailment Notice will put you at risk of deportation and future bans on visa applications to the UK. If you are unsure of when your 60-day curtailment period starts you can instruct our specialist business immigration team to assist.
What is the law on Tier 2 Curtailment Notices?
Tier 2 Curtailment notices are served under paragraph 323 of the Immigration Rules. The primary legislation governing curtailment notices originates from The Immigration Act 1971 (“the 1971 Act”). Section 3 (3) of the 1971 Act gives the power to curtail workers limited leave to enter or remain. The 1971 Act also applies to other visa categories granted under the Immigration Rules or outside them. Section 3 (3) of the 1971 Act states:
“(3) In the case of a limited leave to enter or remain in the United Kingdom, –
(a) a person’s leave may be varied, whether by restricting, enlarging or removing the limit on its duration, or by adding, varying or revoking conditions, but if the limit on its duration is removed, any conditions attached to the leave shall cease to apply;”
The Immigration Act 2014 (“the 2014 Act”) introduced significant changes to the right of appeal and liability to removal for all curtailment notices that fall under the 1971 Act. The powers set out in the act are being commenced by a series of commencement orders. Migrants no longer have a right of appeal or administrative review in respect of a curtailment decision made on or after 6 April 2015.
Why have I been issued a Tier 2 Curtailment Notice?
There are a number of different scenarios where the Home Office may issue a migrant worker with a Tier 2 Curtailment Notice. In the vast majority of cases, the Home Office will only issue a notice if the Tier 2 Sponsor has reported an issue/concern. However, a failure to report a compliance issue may also result in Sponsor Licence revocation and subsequent curtailment notices. Paragraph 323 of the Immigration Rules lists the different scenarios where a Tier 2 Curtailment Notice may be issued. The main reasons being:
- If the Tier 2 worker fails to report to the Tier 2 Sponsor for the commencement of work or fails to comply with the terms of the Certificate of Sponsorship (CoS);
- If the Tier Sponsor fails to update the Sponsorship Management System (SMS) of key significant changes to the employment i.e. change of salary, change of qualification level for the job;
- If a Tier 2 worker changes job role from a shortage of occupation role to a non-shortage of occupation;
- The Tier 2 Sponsor decides to end the Tier 2 sponsorship i.e. the worker has not fulfilled the skilled job role or there are disciplinary issues;
- If the worker’s Sponsor no longer has a licence. due to licence revocation for a failure to comply with the mandatory sponsor duties or if where the Sponsor has voluntarily surrendered its licence;
- If the Tier 2 Sponsor fails to renew its Tier Sponsor Licence;
- If the Tier 2 worker has engaged in criminal activities; or
- The Tier 2 worker resigns from the job and has leave to remain remaining on the CoS.
There is some flexibility available for the Home Office in some scenarios and the power to curtail becomes discretionary. In particular, where a worker has been granted leave to remain with another Sponsor or under another immigration category. The Home Office can also exercise discretion where the worker has a pending application for leave to remain or variation of leave or a pending appeal or administrative review.
My Tier 2 Sponsor has transferred the business will I be issued with a Tier 2 Curtailment Notice?
Generally, when a business with Tier 2 workers transfers the business to another person the Home Office will consider issuing the migrant worker(s) with curtailment notices under paragraph 323A (b) (ii) of the Immigration Rules. In particular, cases where the person to whom the business is transferred to does not hold a Tier 2 Sponsor Licence. The Home Office may not act immediately and will usually wait to see if the business applies for a Tier 2 Sponsor Licence within 28 days from the transfer of the business. In some cases, a curtailment notice will be issued even where a Tier 2 Sponsor Licence is issued if it is granted
in a category that does not allow the sponsor to issue a certificate of sponsorship (CoS) to the migrant or there are prohibited changes to the employment.
How to appeal a Tier 2 Curtailment Notice?
Our immigration team understands it can be extremely stressful and daunting dealing with a Tier 2 Curtailment Notice. We specialise in assisting Tier 2 employers and workers with compliance issues. Unfortunately, Tier 2 Curtailment Notices do not come with a right of appeal or administrative review but the decision may be challenged where the decision-maker has made an error. In some cases, it may be worth perusing a Judicial Review claim as a last resort. There may be a number of options available to you but this will largely depend on your specific circumstances and we recommend you contact our specialist business immigration team for legal advice prior to making any decision.
If you believe the Tier 2 Curtailment Notice was issued by mistake or if there has been a misunderstanding regarding the facts related to your matter; you should instruct our immigration team to request an error correction. The Error correction procedure is a mechanism available where the Sponsor or the Home Office have made an unintentional error. It is not uncommon for a curtailment to be made in error. If you instruct our immigration team we will prepare a detailed legal representation letter explaining why the notice should be revoked.
If you are successful in your error correction the Home Office will revoke their curtailment and reinstate the previous leave.
Using our Immigration Solicitors in London to respond to a Tier 2 Curtailment Notice
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration matter. You can instruct one of our immigration and visa legal representatives to successfully assist you in responding to a Tier 2 Curtailment Notice. Our solicitors and Barristers will help you comply with the Home Office’s requirements and meet the Immigration Rules.
Caseworkers at the Home Office are trained to reject applications, which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, our solicitors and barristers will ensure all specified documents must be provided.
The UK Immigration Rules are complex and a legal representative can help ensure that you understand what your options are in relation to responding to a Tier 2 Curtailment Notice.
Successfully respond to a Tier 2 Curtailment Notice with our Immigration Solicitors in London
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your prospects of challenging Tier 2 Curtailment Notice before your challenge even reaches the Home Office UK Visa & Immigration department. If there is no challenge available we can assist you with the preparation and submission of a fresh Tier 2 General application and ensure that you meet all the requirements under the Immigration Rules.
We are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients. We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.
Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation to discuss your immigration matter.
Contact our London immigration solicitors on 02071830570 or complete our contact form.