Tier 2 interim limit in place until 31st March 2011

Vital information on the interim limit affecting Tier 2 of the Points Based System

In an attempt to reduce applications for immigration under Tier 2 by 5%, the Government has introduced an interim limit on the number of Certificates of Sponsorship (CoS) it will allow employers to issue.  This temporary limit will apply to Tier 2 (General) from 19th July 2010 to 31st March 2011. Most sponsors have now seen their CoS quota reduced or removed (reduced to zero).

Additional certificates for existing sponsors will only be issued at the discretion of a panel of UK Border Agency officials and due only to exceptional circumstances. Employers granted a new Sponsor’s Licence during the interim limit, will also have to apply “exceptionally” to receive any Tier 2 (General) allowance at all.

It is important to note that this change only applies to Certificates of Sponsorship issued under the Tier 2 (General) arrangements. It does not apply to the Tier 2 (Intra-Company Transfer) arrangements.

What has happened to your quota of Certificates of Sponsorship?

From the 19th July, all employers’ existing quotas will be wiped, regardless of their existing quota or how long they have had this quota. The UKBA is emailing all sponsors with their new quotas, which appear to have been calculated automatically.

How your new quota of CoS has been calculated

The interim limit has been calculated based on the CoS usage of each employer for the same period 12 months earlier: from 19th July 2009 to 31 March 2010. The UK Border Agency has then applied a reduction to each employer that used 2 or more CoS during that period. If an employer issued one CoS during this period, they are likely to be issued with a quota of one CoS for the period of the interim limit. Likewise, employers who did not sponsor anyone under the Tier 2 (General) arrangements last year will be awarded a quota of zero CoS for the new interim period. Employers who did not have a licence before April 2010 will automatically receive an allocation of zero.

It is important to note that the UKBA is calculating the number of CoS to issue by looking at the exact number of CoS issued during the same period last year. This does not take into account the quota that an employer was issued with, but it does count CoS that were issued incorrectly and then withdrawn or never used.

This method of calculation was not announced until Monday 19th July and runs contrary to general expectations as to how the system would work. It seems both illogical and unfair to issue Certificates to employers on the basis of how many people they sponsored during the same short period last year during a national recession. Likewise, this new system potentially rewards those employers who issued Certificates incorrectly and in contradiction to the UKBA rules, by issuing them with a higher number this year.

The UK Border Agency has given a considerable number of sponsors an allocation of zero. Such employers will not be allowed to issue new certificates or extensions to existing employees until they make an ‘Exceptional Circumstance’ request (and this is approved).

If we have been issued with less CoS than we need, what can we do?

In order to make a request for additional CoS, sponsors must hold an ‘A’ Rated Licence and must account for each CoS that they have already issued (and intend to issue) during the period of the interim limit. Employers must then complete a form detailing the exceptional circumstances under which they need to sponsor an individual. This form asks for detailed information and it is clear that employers cannot make requests ‘speculatively’. Requests must be for a specific role and salary (and in the case of extensions, the exact person), and the UKBA will enforce the use of the CoS for this role (or individual). Requests should be made no more than 60 days before the intended start date of the role.

How will our request be dealt with?

Contrary to the previous system for requesting additional CoS, the new system has moved more in the direction of an employer having to persuade the UK Border Agency that they have the most pressing need. All decisions will be at the discretion of the UK Border Agency, rather than based on a clear set of objective criteria, and as a consequence, all such requests will have to include a set of arguments to influence the decision of the UKBA panel. For this purpose, many sponsors are likely to benefit from professional assistance in successfully requesting additional Certificates.

A panel of UKBA managers will meet on the first working day of each month to consider all requests received by them by the 24th of the previous month. They will then consider these requests in the following order:

  1. A Work Permit or Tier 2 (General) extension for an existing sponsor;
  2. A Work Permit or Tier 2 (General) extension for a new sponsor;
  3. A new shortage occupation post for an existing sponsor;
  4. A new shortage occupation post for a new sponsor;
  5. A non-shortage occupation post for an existing sponsor;
  6. A non-shortage occupation post for an existing sponsor.

The UKBA has stated that in the majority of cases, requests will be unsuccessful.

This new system is going to dramatically increase the amount of administration and time involved in sponsoring a migrant worker under the Tier 2 (General) arrangements, for both the employer and UK Work Permits Ltd. In the majority of cases, we will need to put forwards a thorough and well-reasoned argument as to why the employer needs to sponsor (or even extend a visa for) each specific individual.

We will shortly be contacting our employer clients individually to request information specific to their quota and their needs over the coming months. As a general rule, it is absolutely imperative that employers notify UK Work Permits as soon as possible of their intention to sponsor a migrant worker under the Tier 2 (General) arrangements, including extensions of existing work permits or Tier 2 visas.