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Skilled workers: the new Tier 2 rules

London 28 May 2012. If you are a non-EEA citizen and have been offered a skilled job in the UK and your prospective employer is willing to sponsor you, you can apply to come or remain here under Tier 2 of the points-based system.

Tier 2 is the immigration route currently available to skilled workers with a skilled job offer to fill a gap in the workforce that cannot be filled by a British or EEA worker.

Prospective applicants will need to have an offer for a graduate level job, speak an intermediate level of English and meet specific salary and employment requirements before they are able to work here.

You must have a licensed sponsor, who will assign you with a certificate of sponsorship before you can apply to come to the UK to work. A certificate of sponsorship is not an actual certificate or paper document, but is a unique reference number, which holds information about the job and your personal details.

 

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TIER 2 CATEGORIES

There are 4 categories of skilled workers you can apply for under the points-based system:

  1. Tier 2 (General): if you are a skilled worker with a job offer from a licensed sponsor coming to fill a gap in the workforce that cannot be filled by a settled worker;
  2. Tier 2 (Intra-company transfer): for employees of multi-national companies who are being transferred by an overseas employer to a skilled job in a United Kingdom based branch of the organisation under 4 routes:
  • Long-term staff
  • Short-term staff
  • Graduate trainees
  • Skills transfer;
  1. Tier 2 (Minister of Religion): for people who have been offered employment or posts or roles within their faith communities in the UK as:
  • ministers of religion undertaking preaching and pastoral work;
  • missionaries; or
  • members of religious orders;
  1. Tier 2 (Sportsperson): for elite sports people and coaches who are internationally established at the highest level and would make a significant contribution to the development of their sport.

 

You must have a job offer from a licensed sponsor and a valid certificate of sponsorship when you apply to enter or stay in the UK in these categories, and you will need to pass the points-based assessment.

All sub-tiers have different Attributes you need to score a minimum numbers of points for. The maintenance requirements, however, are the same across all four Tier 2 categories.

You should use the Points-based calculator made available on the UKBA website to calculate whether you have the numbers to successfully apply under Tier 2.

 

THE CHANGES

Significant changes are being or have been made to Tier 2 which restrict the ability of lesser skilled workers to enter the country,  with the aim of cutting back competition with British workers.

Let's go through the changes.

Annual limit on Tier 2 (General) workers applying from abroad

Since 06 April 2011, a maximum of 20,700 skilled workers are allowed to the UK each year under Tier 2 (General) to do jobs with an annual salary below £150,000. The UKBA has confirmed that the annual limit will remain at 20,700 for the next 2 years until April 2014.

The limit of 20,700 workers has been extended to cover the dependants of Tier 4 (General) migrants who are switching into Tier 2 (General).

There is no limit on the number of workers coming to the UK to do jobs with an annual salary of £150,000 or above.

If you are under the £150,000 annual salary threshold and currently outside of the UK, your sponsor will normally need to apply for a "Restricted Certificate of Sponsorship" (or "Re CoS").

The Annual Limit of 20,700 is divided up into a monthly limit of 1,500 Re CoS. The UKBA will award Re CoS to those sponsor applications that score the highest number of points.

Sponsors do not have a limit and thus can apply for an "Unrestricted Certificate of Sponsorship" (or "Un CoS") where they are sponsoring:

• other Tier 2 category applicants (intra-Company transfer, Minister of religion, Sportsperson);
• Tier 2 migrants or Work Permit holders with valid leave who are extending their stay or changing employer;
• Those in another category of stay applying to switch into the Tier 2 (General) category (where switching rules allow this). This includes those currently holding Student, Tier 4, or Tier 1 (Post-Study Work) visas;
• Those seeking admission to fill a vacancy attracting a salary of £150,000 or more.

 

The limit of 20,700 workers, however, will be extended to cover the dependants of Tier 4 (General) migrants whom are switching into Tier 2 (General).

Where employers wish to sponsor migrant workers in situations that only require Unrestricted CoS, they will be need to make a one off request for an annual quota of certificates at the start of each year.

 

Increase in Tier 2 Skill level

 

Since 06 April 2011, Tier 2 has been restricted to Graduate level jobs. The skill level required by migrants who wish to work in the UK will increase from 14 June 2012.

The minimum skills level for occupations in Tier 2 will be raised from the current threshold of National Qualifications Framework (NQF) level 4 to NQF level 6. Please note that Scotland has its own qualifications framework.

 

Resident Labour Market Test

All sponsors who want to recruit a migrant from outside the settled workforce for a skilled job that is not on the list of shortage occupations may now only do this if they complete a resident labour market test and can show that there is no suitable settled worker who can do the job.

All vacancies must be advertised to settled workers for 28 calendar days.

If no suitable settled workers are identified, the resident labour market test has been completed and you can appoint a Tier 2 migrant.

To issue a certificate of sponsorship on the sponsorship management system under Tier 2 (General), the sponsor must confirm that:

  • they have completed a resident labour market test as set out in the relevant code of practice and cannot fill the post with a settled worker; or
  • the test is not required for the job (see below).

Sponsors do not need to complete a resident labour market test, if the prospective migrant will be doing a job on the shortage occupation list or currently has permission to stay in the UK under:

  • Tier 1 (Post-study work);
  • the International Graduates Scheme;
  • the Fresh Talent Working in Scotland Scheme; or
  • the Science and Engineering Graduates Scheme.

 

The new rules in regards to highly paid and PhD jobs will be relaxed: sponsors will not need to complete a resident labour market test also if:

  • the gross annual salary package for the job will be £150,000 or above;
  • the prospective migrant will be sponsored as a doctor in speciality training and their salary and the costs of their training are being met by the government of another country under an agreement with that country and the UK government; or
    • received final results confirming that they have passed and have been or will be awarded a bachelor or postgraduate degree recognised in the UK or a UK postgraduate certificate in education; or
    • completed a minimum of 12 months study in the UK towards a UK PhD.

 

Companies will now be able to select the best candidate for PhD level occupations, even if they require Tier 2 Sponsorship.  Also, employers can begin recruitment up to 12 months before the start date of the job, rather than the current 6 month timeline.

If these roles are filled by a migrant worker and the employee is with them for 5/6 years, at this stage if they are unable to offer them a salary of £35000 then that employee will no longer be able to remain in the UK.  It can be appreciated that few jobs, especially in the current economic climate can meet a salary of £35000. In fact this would cripple many small businesses.

However losing such employees will also have an effect on the business as they will have to advertise the position again and go through the recruitment and training processes. And the employee who will have established a life in the UK over that period of time will have to face returning.

 

Increased maintenance funds requirements

From 14 June 2012, the personal savings you must have to support your application will increase.

  • For applications received before 14 June 2012: you will need to have £800 in available funds for yourself, which have been in your bank account for 3 months before the date when you apply and £533 each for any dependent accompanying you
  • For applications received on or after 14 June 2012: you will need to have £900 in available funds for yourself, which have been in your bank account for 3 months before the date when you apply and £600 each for any dependent accompanying you

If you plan to make a Tier 2 application on or after 14 June 2012, you must ensure the correct funds are held in your account as soon as possible as the funds will need to have been held in your account for a consecutive 3 month period.

 

Settlement

 

Those who entered on a Tier 2 visa after 06 April 2011 can only be granted a maximum of 6 years on this type of visa. Therefore Tier 2 visa holders will have to apply for settlement prior to reaching the 6 years.

However, applying for settlement is going to be difficult for many of those on a Tier 2 visa, with the introduction of the new minimum pay requirement of £35,000.

Those whom are working vacancies which are considered as part of the shortage occupations will be exempt from this requirement for permanent residence.

This means that if the applicant is not earning a minimum of £35,000 when they are looking to settle in the UK starting from April 2016 they could be faced with leaving the UK and having to wait 12 months before they can apply to come to the UK under Tier 2.

This “cooling off period” will apply across most of the Tier 2 route.

 

New visitor category under Tier 2

A new visitor visa category will be created for professionals coming to the UK for short periods of up to one month.

No formal sponsorship is required, but the proposed work in the UK must be in keeping with the individual's expertise and/or qualifications and main occupation overseas.

 

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The changes do not feel as though they have been a thought out process by the government at a time when it should be helping small businesses to grow and expand. Most businesses will end up losing valuable employees who make a difference to their business.
 

Get info on new application forms and fees for Tier 2:

Tier 2: Application forms and fees

 

 

by Sejal Karavadra
Solicitor Advocate and Director 

DBS Law Ltd

Tel  08001577051

[email protected]

 

edited by Federica Gaida

www.foreignersinuk.co.uk

 

Disclaimer: The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. Information is offered for general information purposes only, based on the current law when the information was first displayed on this website.

You should always seek advice from an appropriately qualified solicitor on any specific legal enquiry. For legal advice regarding your case, please contact DBS Law for a consultation on 08001577051 or email [email protected]

For questions regarding the subject covered in this guide, please visit migreat.com.
 

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