The Home Secretary, Jacqui Smith, recently announced that the Government plans to “raise the bar” for those entering the UK under Tier 1 (General) of the Points Based System.

Tier 1 of the Points Based System is aimed at highly skilled individuals who do not need a job offer to be able to gain entry, or leave to remain in the UK. Tier 1 (General) is the most widely accessible subcategory of Tier 1 which can lead to settlement. In nearly all cases applicants need to demonstrate significant previous earnings through employment, in addition to a degree level qualification, in order to qualify. Tier 1 (General) was modelled very much on its predecessor, the Highly Skilled Migrant Programme (HSMP). Applicants need to score a specified number of points in order to qualify, and points are awarded under the main categories of age, qualifications, previous earnings, and UK experience, with the additional mandatory requirements of English language competency and a set level of “maintenance” funds. Anybody currently in the on the HSMP who wishes to extend their stay will need to do so under Tier 1 (General).

The only completely clear point within Jacqui Smith’s announcement was that from April 2009, it will only be possible for applicants to enter the UK under Tier 1 (General) if they hold a Master’s degree, and their earnings will need to meet a level (in the UK) of £20,000. Currently it is common for those with Bachelors Degrees to qualify (although they will have to score more points in the other categories than a person with a Master’s degree to gain the same number of points).

Unfortunately, while the announcement gained plenty of press coverage, it was more than a little short on detail in terms of how the changes will be implemented and who will be affected.

From 23 -27 Feb, UK Work Permits Ltd has been contacting staff within the UK Border Agency (each and every day), and we have so far only been able to obtain a clear answer to one of our key questions:

We have been told repeatedly that the changes will also apply to those currently holding HSMP status who will need to extend their stay from 31st March 2009 (in addition to those making first applications)

We have been trying to gain more information on the changes, but have so far been struggling. At the time of writing, staff members within the UK Border Agency seem to be quite unaware of how the changes to Tier 1 (General) will be implemented. They have been unable so far to answer the following obvious questions:

  • Will the same number of points (35 points) still be awarded for a Masters degree under the new arrangements? (or will a Masters Degree equal the same number of points previously awarded for a Bachelors Degree?)
  • If the number of points awarded for a Masters Degree decreases, will the points awarded for other attributes be increased to compensate for this?
  • Will the overall minimum required points score be increased or decreased?
  • Will a person under 28 with a non-UK Masters degree and earnings at the 20k level (non-UK earnings) now score enough points to qualify? (such a person wouldn’t currently qualify – where will those points come from? Wouldn’t that be a case of “lowering the bar”?)
  • Will the number of points awarded for earnings, or any other category, change?
  • Are earnings levels of £20k completely mandatory? (A person holding a PhD under the age of 28 will currently not require any points under the earnings category)

These questions remain unanswered, although we are seeking out further details each day, and will update the website with further information as and when it becomes available.

What now?

The announcement has understandably created a lot of attention, panic and confusion by those most affected: skilled foreign nationals, and employers in the UK, both of whom only have enough information to be concerned, but not enough information to plan their next move. The HSMP, and Tier 1 (general), have always been promoted as routes for individuals who wish to settle in the UK, and make the UK their home. To be fair, the Government did state before the introduction of the PBS, that it wishes to use the inherent flexibility of a Points Based System to be able to “raise and lower the bar” according to the needs of the UK. However, there seems to be much room for improvement in terms of fully considering and clearly communicating planned changes.

Based on the information currently available, UK Work Permits Ltd would broadly make the following suggestions to people in the following circumstances:

Organisations employing individuals currently holding HSMP status who may not be able to extend their stay according to the new criteria:

  • Consider encouraging those staff members to apply for extensions under Tier 1 (General) before 31st March if they qualify under the current extension arrangements. Although this may be long before their current visas expire (and may create a shortfall in their 5 year countdown towards Indefinite Leave to Remain), this option will at least lead to an extension of stay for a further 3 years.
  • Consider whether you wish to sponsor any or all of these individuals under Tier 2 of the Points Based System – this may be possible in some cases currently where an extension under tier 1 (General) would not be possible.

(Contact your Consultant at UK Work Permits Ltd for advice on any of those options)

Individuals who currently hold HSMP status and will need to extend in the future:

  • If you do not hold a masters degree or cannot demonstrate earnings over the last 12 months of at least £20,000, then consider applying for an extension before 31st March. Although this may be long before your current visa expires (and may create a shortfall in your 5 year countdown towards Indefinite Leave to Remain), this option will at least lead to an extension of leave to remain for the next 3 years. You may then have a period of time in which to plan your next move.
  • Investigate whether your employer is able to sponsor you (under Tier 2 of the Points Based System). This will be possible only if your employer holds a Sponsor’s Licence (or obtains one before the end of March). The employer will need to issue a Certificate of Sponsorship, which will then allow you to apply for leave to remain under Tier 2. A number of criteria apply. For more information please contact UK Work Permits Ltd.
  • If you hold a higher degree, and your earnings and general points score comfortably exceed the current requirements, you may be unaffected by the upcoming changes, but we would still strongly suggest that you keep a close eye on any upcoming changes.

Individuals who are considering making an initial application under Tier 1 (General):

  • If you do not hold a masters degree, or cannot demonstrate earnings over the last 12 months of at least £20,000, firstly you should establish whether you qualify currently under Tier 1 (General). If you do qualify then we would strongly suggest that you apply as soon as possible, before the changes are implemented.
  • If you hold a Masters degree, and can demonstrate earnings comfortably in excess of £20k, then you may be able to delay making your application, but you should do everything remain abreast of any further planned changes to the scheme, in case these will actually affect you, and prevent you from qualifying in the future.

The uncertainty about the criteria for extension applications currently has a lot of people very concerned, particularly Highly Skilled Migrants, and their employers. The last change that was made to affect HSMP extension applications occurred in November 2006. The High Court later overruled the change on the basis that existing participants in the programme had a legitimate expectation that they would be able to extend on the same basis that they originally qualified. However, from the information available currently, it seems that the goalposts may have been moved again for those already in the UK.

It is clear that anybody who qualifies currently (either for an initial application or a HSMP extension) based on a bachelors degree, and wishes to make an application under Tier 1 (General), should apply as soon as possible. Anybody with a Master’s degree, who currently qualifies, but not by a great margin, would perhaps be well advised to do the same. In some cases, it may be possible and appropriate for a UK employer to sponsor individuals under Tier 2 of the Points Based System, providing they hold a Sponsor’s Licence. There is currently a lot of uncertainty, and anybody who may be affected by these changes should keep up to date with announcements by the Home Office / UK Border Agency.