Brownlie v Four Seasons Group
Kingsley Napley would like to invite comment from employers interested in the government's plans for the permanent limits on migration under Tier 2 and importantly the proposed new Graduation Occupation list.
At present, a Certificate of Sponsorship (CoS) can be issued in relation to a job that is at NVQ Level 3 or above. The latest releases from the UK Border Agency (UKBA) indicate that with effect from April 2011, the minimum skill level under Tier 2 (General) will be raised to degree level. Any jobs that are considered by the UKBA to be at below degree level will not be eligible for a CoS. Bearing in mind the Tier 1 (General) route will close next April, any company wanting to recruit a new hire non-EEA national will have no choice but to sponsor the candidate under Tier 2 (General). The difficulty will be that, unless the occupation is on the Graduate Occupation list the employer will not be able to sponsor the individual. Once the Tier 1 (General) route closes there will be no other route available.
The current list of graduate jobs that the UKBA uses can be viewed at:
Please click on "Tier 2 (ICT) Graduate occupation list" on the right hand side. This list dates from 2000 and as such appears not to reflect the reality of the UK job market. The Migration Advisory Committee (MAC) is reviewing the current list and the Committee may consider using the 2004 Elias and Purcell list as a starting point.
The list sets out occupations which are treated as graduate and classifies them with a grading of 1-4, with 1 and 2 being graduate, 3 being "new graduate" and 4 as borderline graduate. We are of the opinion that this list also appears out of date so it is important for the MAC to understand the marketplace has changed significantly since 2004. Our particular concern is that a number of occupations listed under grade 4 are occupations for which many of our clients recruit non-EEA nationals. As an example, Grade 4 includes brokers, financial investment analysts and advisers, financial institution managers and taxation experts.
We have been told that any representations in respect of this list must be sent direct to the MAC and not the UKBA. There will be no "call for evidence" in respect of the new Graduation Occupation list, but the MAC has confirmed it will accept submissions as to why an occupation should be added and it will then consider the reasons for doing so.
The UKBA is considering policy now with a view to releasing this late January early February 2011 so there is a small window of opportunity in which to send any written submission to the MAC.
Sponsoring employers whose roles are not on either of the above lists should contact their Kingsley Napley adviser and seek further guidance/help with any written submissions.
Sponsors may also like to provide comment to the UKBA on the level of salaries paid to their graduate recruits. The UKBA has indicated that salary will be used as an indicator of skill, so less well-paid jobs will be less likely to come within the new Tier 2 system. It may be the case that graduate salaries will not be sufficiently high to fit within the UKBA's plans for Tier 2 once they are announced early 2011.
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