February 27, 2011

The UK Border Agency has released a statement giving information on how the permanent cap, to be introduced on 6 April 2011, will work in practice for Tier 2 of the Points Based System.  Tier 2, which encompasses both Intra Company Transfers (ICTs) and new hires (“Tier 2 General”) is the most commonly used route for corporate employers to bring foreign nationals into the UK. The statement does not address changes to Tier 1; a further announcement is expected.  The measures announced in the statement are not yet law, and remain subject to change, but represent the UK government’s intentions for the new rules.

“Restricted” and “Unrestricted” Certificates of Sponsorship 

Certificates of sponsorship (COS) for Tier 2 will be divided into two categories; “restricted” and “unrestricted”.

Restricted Certificates of Sponsorship (COS) will be capped at 20,700 for the year. This limit will be subdivided into 12 monthly allocations, with 4,200 places made available in the first month (April 2011) to meet seasonal demand, and 1500 places available per month thereafter.

Employers wishing to issue restricted COS will need to apply for these directly to the UKBA.

Restricted COS will not be issued on a first come, first serve basis – applications will be pooled and assessed once per month (on a date to be announced) against qualifying criteria – including salary. Where a COS is not issued, the application must be resubmitted the following month and will be reassessed along with the other applications for that month.

COS will be charged for on issuance rather than application. Unused COS should be returned to the UKBA so that the allocated place can be carried over to another month.

Unrestricted Certificates of Sponsorship (COS) will not be capped and will be issued by approved sponsors much like the current system.

The following categories are classed as unrestricted and are not affected by the limit:

  1. Intra Company Transfers;
  2. Tier 2 migrants extending their stay with their original employer;
  3. Tier 2 migrants with valid leave extending their stay by switching to a new employer;
  4. Applicants admitted in another category of stay and applying to switch in-country into the Tier 2 (general) category;
  5. Where transitional arrangements for those already in the United Kingdom as a Tier 2 migrant or work permit holder apply;
  6. Tier 2 (general) applicants seeking admission to fill a vacancy attracting a salary of £150,000 or more (in addition, applications for those in this category will not be subject to the Resident Labour Market Test); or
  7. Tier 2 Sports People or Ministers of Religion.

Intra Company Transfers 

There are two significant changes to the Intra Company Transfer (ICT) route, as follows:

  1. The position to be filled must be listed on the Graduate Occupation List (see Appendix A of this report)
  2. Salary will determine duration of stay, as follows:
    • Where salary is between 24K and 40K, duration of stay will be limited to 12 months, after which the individual must leave the UK and will not be permitted to re-enter until a period of 12 months has elapsed, unless the salary has been increased to
      40K or more during the period of the initial asignment, in which case a new out of country application can be made to return as a long term ICT (see b. below)
    • Where salary is over 40K, duration of stay can be granted for up to 3 years, with the possibility of renewing for a further 2 years.  Renewals beyond 5 years will not be permitted, and individuals who have spent 5 years in the UK as an ICT will not be able to return to the UK as an ICT until a period of 12 months has elapsed since their last leave as an ICT expired.

Note that the new rules will not apply to anyone in the UK with entry clearance or leave to remain granted before 6 April 2011, but will apply to those with Certificates of Sponsorship granted before 6 April 2011 if entry clearance/leave to remain has not yet been obtained.

Graduate Level Occupations 

The UK government has accepted the Migration Advisory Committee (MAC)’s recommendations for a Graduate Occupation List (see Pro-Link GLOBAL’s last alert on this subject here).  All Tier 2 applicants must now be coming to the UK to carry out a job on the Graduate Occupation List or the Shortage Occupation List.

English language requirements will be stepped up from basic to intermediate level (level B1 on the Common European Framework of Reference for Languages).

Entry Clearance for Tier 2

When granting entry clearance for a Tier 2 Certificate of Sponsorship (COS) holder, UK consulates and embassies will assess applications using the following points:

Minimum of 70 points required.

  • Valid COS: 30 points
  • Appropriate salary: 20 points
  • Maintenance: 10 points
  • English language: 10 points

Note that a university degree will no longer confer points, so degree certificates will no longer need to be presented with entry clearance applications.

Settlement 

From 6 April 2011, the rules for applying for settlement (permanent residence) in the UK will also be changed, as follows:

  • A new income requirement for Tier 1 (General), Tier 2 (General) and Work Permitholders applying for settlement will be introduced;
  • The Knowledge of Language and Life in the UK requirement for Tier 1 (General), Tier 2(General) and Work Permit holders will be amended so that all applicants must take the Life in the UK Test; and
  • Criminality test will be applied to all applicants for settlement.

A Note on Tier 1 (General) In-Country Applications 

Under transitional arrangements, the Tier 1 (General) route for in-country applications will remain open.  However, those not already in Tier 1 (General) will not be able to switch into it after 6 April 2011.  Since Tier 1 is beneficial in many ways, leading to settlement (permanent residence) in the UK among other things, employers may wish to take advantage of the current opportunity to transfer eligible employeees into this category before it is too late.  Contact Pro-Link GLOBAL for advice today.

ACTION ITEMS FOR EMPLOYERS 

  • Review the Graduate Occupation List – Tier 2 Certificates of Sponsorship will not be issued for occupations that are not on this list (unless they are on the Shortage Occupation List)
  • Take note of the duration of stay limitations for Tier 2 ICT, which are based on salary
  • Take note of the quota for Tier 2 General, although also note that applicants renewing under Tier 2 General or switching into Tier 2 General in-country will not be affected by the cap.
  • If you have employees who may be eligible for a Tier 1 (General) in country application, contact Pro-Link GLOBAL today, as this route will likely be closed in April.
  • NOTE that these changes are not yet law, and that the UKBA’s statement represents the goverment’s intention only at this stage.

 Caveat Lector | Warning to Reader  

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification.  Pro-Link GLOBAL worked with our PLG | KGNM correspondent office in the UK to provide this GLOBAL Brief to you.