Implications of Temporary Absence Due to Medical Condition for Tier 2 Visa Holders
Introduction
Being unable to work temporarily due to a medical condition can be a challenging situation for many individuals, especially those holding Tier 2 visas. The Tier 2 category allows individuals to work in the UK on a temporary basis for organizations that have been granted sponsorship. Understanding the rules and implications of such absences is crucial for maintaining your right to remain in the UK under the Tier 2 category.
Temporary Absence and Employment Rights
Individuals on Tier 2 or Tier 5 Temporary Worker visas are eligible to take short periods of unpaid leave without it affecting their right to remain under the specified category. However, the general rule is that if an employee is absent from work without pay for a cumulative total of 4 weeks or more within any calendar year, the sponsor must stop sponsoring the migrant. There are exceptions to this rule, which we will explore in the following sections.
Exclusions to the Absence Rule
Under Paragraph 26.27 of the Tier 2/5 Sponsor guidance, the following scenarios would qualify as exceptions to the general rule:
Statutory maternity leave Statutory paternity leave Statutory parental leave and statutory shared parental leave Statutory adoption leave Sick leave Assisting with a national or international humanitarian or environmental crisis overseas, provided the sponsor agreed to this absence in advance Participation in strike action as part of a legally organised industrial actionNegative Implications: Medical Condition and Sponsorship Termination
For any other absence due to a medical condition, the sponsor might consider whether the absence is reasonable given the nature of the condition. If the sponsor concludes that the medical condition is not severe enough to prevent you from working, they have the right to terminate your sponsorship. In such a case, if you are sent a letter detailing the curtailment of leave, it is essential to ensure that the Home Office has up-to-date information on your current address to receive the communication.
Legal Protection and Reasonable Adjustments
During sick leave, the employer is obligated to make reasonable adjustments to ensure that you can still be considered employed. This includes allowing you to work from home if possible or providing facilities with disability access. It does not matter if you are not actively performing your job duties if you are still employed; you remain covered under the Tier 2 category while you are on sick leave, provided your sponsor acknowledges your ongoing employment status.
Legal Consequences of Job Loss
Should you lose your job, your options are limited. You must either find another job or leave the UK within 60 days of the sponsorship termination. In the case of finding new employment, you will need to apply for a new visa. There is the potential to stay in the country while your application is processed, albeit it is not guaranteed. If the application is denied, you will be required to leave the UK.
Conclusion
The rules surrounding temporary absences and working conditions for Tier 2 visa holders can be complex. It is important to understand the exceptions to the absence rule and the legal protections provided. Ensuring that your employer and sponsor comply with these guidelines is essential to maintaining your right to remain in the UK under the Tier 2 category. It is advisable to consult legal or immigration professionals for detailed guidance tailored to your specific situation.