Tier 2 - sponsors to act by 11 March

The Government has announced that new immigration rules relating to tier 2 will take effect from 6 April 2011.  Although the new rules and accompanying detailed guidance are unlikely to be available until mid-March, the statement of intent published by the Government outlines the following changes:

A. Certificates of Sponsorship (CoS) will be split into two categories:

- unrestricted; and

- restricted.

How will it work?

Unrestricted CoS allocation

This will apply to the following:

- tier 2 Intra Company Transferees (ICT);

- tier 2 migrants extending their stay in country;

- tier 2 migrants switching in country;

- migrants in other categories switching into tier 2 (general) (eg from tier 1 (post study worker, etc));

- migrants who will fill vacancies where the salary is £150,000 plus; and

- tier 2 sports people and ministers of religion.

The UKBA is currently contacting sponsors to ascertain their CoS requirements for 6 April 2011 until 5 April 2012.  Therefore, sponsors need to determine how many unrestricted CoS they will require during this period and submit this information to the UKBA (via email) detailing their requirements before 17.00 on 11 March 2011. In order to prepare this document sponsors will need to spend some time considering the numbers of tier 2 extensions, in country switches etc.

Failure to submit the required information to the UKBA will result in the sponsor CoS allocation being set to zero as of 6 April, even if a sponsor currently has a CoS allocation.

If you have not yet received an email in relation to this, please click here for full details. 

Sponsors will be able to assign CoS that fall within the categories set out above as normal and without having to obtain prior permission from the UKBA. The CoS that are given to sponsors will be confirmed before 6 April but cannot be used before 6 April.

Restricted CoS allocation

This will apply to new hires outside the UK on salaries of less than £150,000.

The annual limit on restricted CoS will be 20,700.  The 20,700 available CoS will be split between 4,200 in April and thereafter 1,500.

In a throw back to the old work permit system businesses which need to hire an individual using a restricted CoS will be required to apply to the UKBA.  Requests will be considered on a monthly basis and the monthly allocation will be given to those who score the most points.  Migrants must score at least 32 points.

Points are awarded for the proposed salary and the route used.  The salary range is between £20,000 and £149,999 and routes include shortage occupation, PhD level posting together with resident labour market test and resident labour market test only.

Example: a company has undertaken a recruitment search and has found that it is unable to find a candidate in the UK who can fill a PhD level post.  The salary on offer is £24,000.  The total points awarded will be 56.  The points are awarded as follows:

PhD level posting together with a resident labour market test: 50 points

Salary: 6 points.

Even if the minimum 32 points is scored there is no guarantee that a CoS will be allocated to the sponsor by the UKBA upon application, as this will be dependent on demand.  Unsuccessful applications will not be rolled over and the sponsor will need to reapply.

The full CoS allocation points table can be found in the statement of intent.

What sponsors need to do

Sponsors will need to check the UKBA guidance and determine which category applies before they assign a CoS.  If the migrant falls into the unrestricted category, the sponsor can assign the CoS providing it has an allocation.

However, if the migrant falls into the restricted category, the sponsor will not be able to assign a CoS from its allocation and will have to apply to the UKBA for a 'restricted' CoS.

Sponsors who fail to comply with the new system risk having their sponsor licence revoked.

B. Changes to tier 2 Intra Company Transfer (ICT) route 

Tier 2 (ICT) posts will be divided between short term and long term transfers.

Short term transfers

- maximum of 12 months;

- migrant cannot switch from tier 2 (ICT) into tier 2 (general);

- migrant must return overseas for a minimum of 12 months before applying again for a tier 2 visa;
  and

- salary on offer must be at least £24,000.

Long term transfers

- maximum of three years with the ability to extend for two years;

- migrant cannot switch from tier 2 (ICT) into tier 2 (general);

- migrant cannot extend beyond five years;

- after five years in the UK the migrant must return overseas for a minimum of 12 months before
  applying for a tier 2 (ICT) visa again; and

- salary on offer must be at least £40,000.

C.  Raising the skills level

Skill level: The minimum skill level will be raised from NVQ 3 to graduate level for tier 2 (general) and tier 2 (ICT).  This means that many occupations will no longer qualify for sponsorship under tier 2.  Please see appendix A on the statement of intent (click here) for a list of the graduate level occupation codes.

English level:  The minimum English language requirement will increase for tier 2 (general) from basic to intermediate.  This is equivalent to B1 on the Common European Framework of Reference for languages.

Points to note:

Is a tier 2 CoS issued before 6 April 2011 still valid for applications submitted on or after 6 April 2011?

The Statement of Intent makes it clear that the new tier 2 changes will not apply to applicataions submitted before 6 April 2011.

The Statement of Intent also states that the new rules will apply to applications submitted on or after 6 April even if the CoS is issued before 6 April. Since then a caseworker at UKBA has provided conflicting information and has stated that a CoS issued before 6 April 2011 will still be regarded as valid even if the application for entry clearance / leave to remain is submitted on or after 6 April. Due to the conflicting information provided and our concerns regarding CoS that have already been issued we contacted the UKBA. They stated that they are still awaiting clarification on this point from their policy advisors. Once a response is provided to Penningtons on this point we will provide a further update.

Tier 1 (general)

Although tier 1 (general) will close on 6 April 2011, individuals who already have leave in this category will be able to extend in country after this date.

As it currently stands individuals on a tier 1 (general) can still apply for settlement after they have been in the UK for five years in an eligible category.  However, the Government is proposing to introduce a new requirement making it necessary for migrants to score points against the same criteria as their last application.

Any individual who is already in the UK in a category that does not lead to settlement and wants, and is able to switch in country, should consider doing so now as the routes to settlement dwindle.

Settlement rules

Migrants applying for entry clearance or leave to remain in a new category after 6 April 2011 could be subject to the new rules on settlement.  These rules will commence from April 2011 and will include minimum income requirements for individuals on tier 1 (general), tier 2 (general) and work permit holders.  New knowledge of labour and life in the UK requirements will also be introduced as well as new criminality test requirements.

Therefore, if any individuals are eligible for settlement before April, it is recommended that they submit their application as soon as possible.

Action points

- sponsors need to ascertain how many unrestricted CoS they require;

- if restricted CoS are needed for April, the sponsors need to prepare documents ready for mid March
  submission (if possible);

- skill levels should be reviewed for all new posts in light of stricter criteria (this does not apply to
  those extending under tier 2 with the same or different sponsor);

- all possible switches should be looked at on an urgent basis and submitted before 6 April if
  possible.

If you wish to view the full statement of intent, please click here.

Independent Chief Inspector of the UKBA publishes report on PBS tier 2

The Chief Inspector, John Vine, visited three locations to provide an independent assessment of the Agency both in the UK and abroad. He specifically looked at tier 2 (general) and tier 2 (ICT) and made 12 recommendations in total. The findings of most concern are listed below:

- inconsistencies between different offices and within offices in the processing of visa applications.
  The inconsistent approach meant that some individuals were being allowed to submit additional
  information and others had to submit a fresh application; 

- agency staff found PBS policy guidance confusing, inconsistent and lacking defined terms;

- UKBA does not routinely take the required action to curtail a migrant's leave once the sponsor has
  reported them on the SMS;

- non systematic approach being carried out by the agency in relation to post-licensing visits;

- safeguarding of the borders had been passed over to sponsors and the UKBA staff were not
  confident that the system in place was as robust as it is needed to be.

For the full report, please click here.

Closure of the worker registration scheme

A reminder that the worker registration scheme, which is currently in place for A8 nationals, is due to close in April 2011.  The scheme was set up in 2004 with the aim of monitoring migrants who came to work in the UK from countries which were new to the European Union.  Under European Union law, the scheme cannot continue past April 2011.

A8 nationals are nationals from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.

HTS for tier 2 and tier 5

The Government is currently thinking of introducing a new Highly Trusted Sponsor status for tier 2 and tier 5 from the summer of 2011. It is proposed that the UKBA will invite organisations which meet the UKBA criteria to apply for HTS. The criteria are currently set to include those with a proven track record of immigration control with the UKBA and which are either:

- top 50 revenue generating companies (it is not clear how this is to be calculated);

- organisations with a UK Royal Charter; or

- independent research organisations.

The UKBA hopes that by introducing this new HTS status to tier 2 and tier 5, it will improve efficiency for the UKBA and allow it to focus on companies which are high risk.  The proposed benefits to sponsors include amongst other things:

- less evidence required of prospective employees;

- priority interview booking at Public Enquiry Office; and

- designated phone/mail helpline to sponsors.

These proposals are regarded as unfair to many companies which would not be offered this status such as small businesses.  However, the proposals are currently at the very early stages and should not be regarded as the UKBA's policy proposals for tier 2 and tier 5.

Miscellaneous

Proposed fee increases

From 6 April the UKBA official fees are set to go up.  Please click here for a list of the proposed new fees:

New shortage occupation list published

The MAC published the proposed new shortage occupation list on Thursday 3 March 2011.  Please click here for the list.

Tier 1 (post study work) may be abolished from 6 April 2011.

It is unclear if the UKBA will abolish tier 1 (post study work) in its entirety. We are however advising that students who have been awarded a degree in the UK within the last 12 months should consider applying to switch their status to tier 1 (post study work) now providing they meet the criteria even if they intend to continue studying in the UK, in case tier 1 (post study work) is abolished. This is because there is no prohibition on migrants studying under tier 1 (post study work).

Olympic Games concession visa

Athletes, coaches and technical officials, sponsors and rights holding broadcasters accredited by the London Organising Committee of the Olympic and Paralympic Games (LOCOG) will be able to apply for a games visit visa.  The visa application must be supported by a letter from LOCOG confirming that they are endorsed by LOCOG as a games family member. 

The visit visa will be a multiple entry visa valid from the date of issue until 8 November 2012.

Penningtons' immigration partners quoted in Law Society Gazette

Immigration partners Nichola Carter and Philip Barth have appeared in the Law Society Gazette a number of times in recent weeks, giving their views on several different issues.

Nichola, who acted for English UK in its successful challenge against the Secretary of State last year, highlighted the plight of English language institutions which may struggle to survive if tier 4, the route used by students to enter the UK, bears the brunt of plans to significantly restrict migrant numbers. To view the article, please click here. 

She also wrote an article giving her views on the Government's proposed changes to the student visa system. (please click here) and commented on the role of Highly Trusted Sponsors (HTS) (please click here). 

Philip Barth, was quoted in the Gazette on 3 March, commenting on the role of border staff in admitting migrants to the UK. The full article can be found by clicking here.

Upcoming event

Tier 2 - breaking through the restrictions

Penningtons Solicitors LLP will be running a seminar focusing on the changes to tier 2, due to come into force on 6 April 2011.

The seminar will provide an overview of the changes to tier 2, guidance on how sponsors should plan the UK bound workforce in the short, medium and long term, information on unrestricted and restricted Certificates of Sponsorship and the new ICT rules as well as alternative solutions to the tier 2 route and practical case studies.

For more information, please contact Alice Mew 

If you would like to discuss any aspect of this update further, please contact:

                                 Philip Barth                                                           Nichola Carter