Annual limits on economic migration from April 2011 – Implications of the announcements

Further to our previous news article on the recently announced Annual limits, we would like to clarify UK Work Permits’ understanding and interpretation of the limited information that the UK Border Agency and Home Office have so far published.

Tier 1 of the Points Based System

Tier 1 (General) scheme

The Home Secretary announced in her speech that from April 2011, the Tier 1 (General) route will be closed.

It is unclear at this moment how those currently holding a Tier 1 (General) visa will be affected. The Home Secretary has made no reference to such individuals, and her rhetoric certainly suggests an intention to close the scheme completely. However, in the past (since the HSMP Judicial Review), the UK Border Agency has always implemented transitional arrangements to allow visa holders to extend and reach settlement without having to meet unforeseen requirements. We hope that the UKBA will clarify this issue in the near future.

Applicants who are currently in the UK with a visa that will allow them to switch into the Tier 1 (General) category without leaving the UK, and who qualify under the current criteria should apply as soon as possible, but certainly prior to April 2011. As the rules currently stand, provided an in-country application is submitted (i.e. posted) to the UKBA prior to the change of rules, the application will be decided under the existing rules.

For applicants who are currently outside of the UK, or need to leave the UK in order to switch, applications may be affected by the monthly ‘limit’ on out of country applications. In July 2010, the UKBA introduced a limit on the number of Tier 1 (General) applications that can be approved in any one calendar month. The ‘approval quota’ will not affect the way in which applications are submitted, and if an application is received and the limit has not been met, a visa will be granted as normal. If an eligible application is received and the limit for the month has already been reached, the application will be held until the next month, when a new quota will be available. This ‘roll-over’ will continue until the application falls within the quota and a visa can be granted. It is highly likely that any Tier 1 (General) applications that are held up by the above mentioned ‘limit’ at the end of March 2011 will be refused automatically.

In short, to stand the best chance of being approved prior to the closure of the Tier 1 (General) scheme in April 2011, out of country applications should be submitted as soon as possible.

Tier 1 (Post-Study Work)

The Home Secretary announced that the UK Border Agency will be looking into this category with a view to closing it entirely, on the grounds that 1 in 10 UK Graduates are currently unemployed. The UKBA has also announced that there will be a cap of 1000 visas per year under Tier 1, excluding the Investor and Entrepreneur categories. The Home Secretary also spoke of a new Tier 1 category, entitled ‘People of Exceptional Talent’, with a yearly cap of 1000 visas. This would appear to indicate an inclination to remove the Tier 1 (Post-Study Work) scheme altogether. It is still possible that the UKBA will announce changes or closure of this scheme to be implemented in April 2011, although at the moment this is unclear.

The UK Border Agency has been highly critical of this route, and has treated it with deep suspicion, often claiming that it is abused to allow migrant workers to perform low-skilled jobs. The Home Secretary has not confirmed what percentage of recent domestic UK graduates could be considered to be performing Highly-skilled work; a figure UK Work Permits would have considered relevant to the argument.

Tier 1 (Entrepreneur)

The Home Secretary has announced that this category will be exempt from the annual cap, with the process of applying for this visa being made “quicker and more user-friendly”. The UKBA has not elaborated on this as yet, and it is not clear whether the current requirement that the applicant have access to £200,000 will be relaxed, or whether there will be mere procedural changes to the processing of these applications.

Tier 1 (Investor)

This category will also be exempt from the annual cap, and the Home Secretary has not announced any changes to this scheme.

New Tier 1 category

The Home Secretary announced the creation of a new category for ‘People of Exceptional Talent’, with an annual cap of 1000 visas. In order to qualify under this scheme, applicants will need to have “won international recognition in scientific and cultural fields, or show exceptional promise to be awarded such recognition in the future”. It is likely that applicants will have to obtain an endorsement from a relevant body in order to apply.

This scheme appears to have been constructed purely to appease the scientific and academic communities, some the loudest critics of the proposed immigration cap. UK Work Permits is concerned that the actual ‘mechanics’ of the scheme have not been properly thought out, and suspects that most decisions will be highly subjective and taken by UK Border Agency staff unqualified to make such decisions.

Tier 2 of the Points Based System

Tier 2 (General)

Firstly, and most importantly, the Home Secretary has announced that Tier 2 (General) will be restricted to Graduate level jobs only. The UKBA will publish a list of roles that can be considered ‘Graduate level’ in due course. It is unclear whether this requirement will extend to roles specified on the Shortage Occupation List, although the UKBA’s comment that they will “amend the Shortage Occupation list accordingly” strongly suggests that employers will no longer be able to sponsor workers in roles such as chefs and senior care workers.

Secondly, Tier 2 (General) will be capped at a level of 20,700 for the year from April 2011 until March 2012. Unlike the current interim cap, no Certificates of Sponsorship will be given out to sponsors at the start of the year, and all sponsors will have to request additional CoS via monthly panel meetings. These will be ranked according to the following ‘characteristics’:

  • Whether or not the role is on the Shortage Occupation list;
  • Whether the role requires higher academic qualifications, presumably Masters and PhDs;
  • The salary for the role.

This is not a strict order, and it is likely that the UKBA will award ‘points’ for each of these ‘characteristics’. In this way, it may be possible for a higher salaried position to be deemed ‘more important’ than a role on the Shortage Occupation list.

The following situations will not be capped:

  • In Country applications. This will certainly include people who currently hold work permit or Tier 2 visas. We can only presume that this will also include individuals who are in the UK with another type of visa that allows them to switch into Tier 2. The biggest winners from such a change would be sponsors seeking to continue employing individuals with Tier 1 (Post-Study Work) visas;
  • Vacancies that attract a salary of more than £150,000 per year.

Lastly, where applicants under the Tier 2 (General) scheme are not from an majority English language speaking country, and have not passed a degree level qualification taught in English, they will now need to pass an English Language Test at a higher level than previously (B1 on the Common European Framework of Reference, rather than A1). An IELTS score of 4.0 is currently deemed to be at level B1.

Tier 2 (Intra-Company Transfers)

The Home Secretary has announced that from April 2011, in order to transfer staff to the UK for more than 12 months (up to a maximum of 5 years), the role must have a salary of more than £40,000 per year. Individuals who are paid at least £24,000 per year will be permitted to come to the UK for up to twelve months. The Graduate Trainee and Skills Transfer sub-categories will remain as they are now, although it is certainly possible that the visa points requirements will be adjusted.

To clarify, Tier 2 (Intra-Company Transfers) will not be covered by the overall annual limit described above, that applies only to Tier 2 (General) applications.

Indefinite Leave to Remain

The Home Secretary has announced an intention to ‘end the link between temporary and permanent migration’. This rhetoric suggests that the UK Border Agency will make fairly significant changes to the ILR rules in the future, but for the moment, only a few minor changes have been announced. Again, these will occur in April 2011.

Firstly, applicants who have unspent convictions will not qualify for Indefinite Leave to Remain. This requirement would appear to extend to dependants.

Secondly, applicants applying for ILR from a Tier 1 (General) or Tier 2 visa will be required to show that their salary has remained at the level for which their current PBS visa was approved.

Lastly, applicants who do not pass a minimum English Language requirement will not be eligible to apply for ILR. We are currently unaware of how this requirement will differ from the current requirement that applicants pass either the Life in the UK Test or an ESOL course.