UKBA confirms new Tier 2 rules

25 February 2011

On 16th February the UKBA released its Statement of Intent on proposed changes to the Tier 2 of the PBS which will come into effect on 6 April 2011.  This alert is intended to provide a brief summary of the main points of the Statement of Intent.  We will provide further analysis on the implications of the statement shortly.

Tier 2 Immigration Limits

The immigration limits announced by the government in November 2010 will apply depending on whether the relevant immigration category under which the person is being sponsored is "restricted" or "unrestricted".

Unrestricted categories

These are as follows:

  • Intra-Company Transfers
  • Tier 2 migrants extending their stay or switching employer in the UK 
  • Any of those entitled to switch into the Tier 2 (General) category in-country
  • Those falling under the transitional provisions for Tier 2 migrants and work permit holders
  • Those coming to take a role with a salary of £150,000 per annum or more
  • Tier 2 sports people or ministers of religion

All sponsors who require unrestricted Certificates of Sponsorship for the coming year will be approached by the UKBA in March and will be able to request their anticipated allocation for the coming year from 6 April 2011. 

Restricted Certificates of Sponsorship

All other Tier 2 (General) certificates will be "restricted".  Employers will need to follow the new process for accessing restricted certificates.  20,700 certificates will be available divided into 12 monthly allocations. The allocation for April 2011 will be 4,200 in order to meet anticipated initial demand and will thereafter be 1,500 per month.

Process for applying for restricted Certificates of Sponsorship

Employers will need to apply for restricted certificates by a certain date each month and applications will be considered on a monthly basis.  The UKBA will begin accepting applications for restricted certificates from 16 March 2011.

If the monthly limit is undersubscribed, a certificate will be awarded to all qualifying applications. Any unallocated certificates will be added to the following month's allocation, until the end of the year when a fresh limit will be set.

Where the monthly limit is oversubscribed, a certificate will be awarded to all applications with sufficient points to place them above the monthly threshold (see below). Any employer who has applied for, but not been allocated a certificate will have to re-apply as the application will not be automatically rolled forward to the next month.

Monthly Threshold

The allocation process will mean that a number of applications will score an equal number of points and may straddle the cut-off point at which applications would otherwise be successful. Applications will be approved if it would not cause the monthly allocation to be exceeded by more than 100. In that event, the monthly allocation for the following month will be reduced accordingly.

Where the granting all applications scoring an equal number of points would mean that the monthly allocation would be exceed by more than 100, all applications will be refused and the balance of unused certificates will be carried over to the following month.

Points scoring for Certificates are set out below. Applications will be prioritised on the highest points scored.

The pass mark will be set at 32 points.

Tier 2 (Intra Company Transfer)

The Intra Company Transfer route will be split into a short term and long term category.

In both cases, in order to sponsor an individual, the occupation will need to be listed on the Graduate Occupation List.

Short Term

Individuals paid between £24,000 and £40,000 will be granted leave for up to 12 months at which point they must leave the UK and will not be able to return in this category for a further 12 months from the date their last leave expired.

If a salary increases above £40,000 during a period of leave, an individual is unable to extend in the UK but is able to leave and apply to return under the long term category.

Long Term

Individuals paid more than £40,000 will be granted leave for up to 3 years with the possibility of extending for a further 2; they will not be able to extend beyond 5 years, and will not be able to re-apply to return to the UK as an Intra Company Transfer until 12 months after their last leave expired.

Transitional arrangements

The Tier 1 (General) route will remain open in order to enable those with existing leave to enter or remain under Tier 1 (General), or its predecessor categories to extend their leave. The points threshold for extensions will, however, be raised to 100 for those who were required to score 100 points when they were originally granted Tier 1 (General) leave. The points requirements will otherwise be unchanged.

Individuals not already in Tier 1 (General) or a predecessor category will not be able to switch into it after 6 April 2011. This includes those with existing leave to enter or remain in the Tier 1 (Post Study Work) category or its predecessor categories, and those in Tier 4.

The new Tier 2 criteria will not apply to those with leave granted under the rules in force prior to 6 April 2011.

Settlement

From 6 April 2011 new criteria will be applied to applications for settlement.

A new income requirement for Tier 1 (General), Tier 2 (General) and Work Permit holders will apply. Tier 1 (General) migrants will need to score points against the same criteria as their last application as set out in Appendix A of the Immigration Rules.  Tier 2 (General) and Work Permit migrants will need to be paid the appropriate salary for the occupation as set out in the relevant Code of Practice for sponsored skilled workers.

Individuals will also no longer be able to rely on taking an English for Speakers of Other Languages (ESOL) with citizenship course in order to demonstrate a Knowledge of Life in the UK.

All applicants (except refugees) will need to be free of unspent convictions when applying for settlement. Those who are not, and have no other legitimate basis of stay, will be expected to leave the UK.

For more information please contact Nicolas Rollason, Head of Business Immigration, at nrollason@kingsleynapley.co.uk or on 020 7814 1200.

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