On 14^th November 2011 the UK Border Agency introduced changes to the Shortage Occupation List. These changes are based on recommendations received from the Migration Advisory Committee (MAC) in relation to skills that are in shortage in the UK, or are no longer in shortage.

Positions on the Shortage Occupation List do not need to be advertised by the employer before a migrant worker can be employed, as there is an accepted shortage of resident workers able to fill these skilled roles.

These positions have been added to the Shortage Occupation List:

• actuaries;
• high integrity pipe welders;
• environmental scientists; and
• geochemists.

The following positions have been removed from the Shortage Occupation List:

• secondary education biology teachers;
• speech and language therapists;
• pharmacists;
• orthoptists;
• veterinary surgeons; and
• rank and file orchestral musicians.

Those positions that have been removed from the Shortage Occupation List will now be subject to the Resident Labour Market Test, i.e. they will need to be advertised to check that there is no resident worker who can fill the role.

Advertising must be carried out in line with the UK Border Agency’s guidelines, and appropriate evidence must be kept.

If you need help completing the Resident Labour Market Test, or with any other requirement, please contact us.

The UK Border Agency has recently released a public consultation, looking mainly at routes to settlement.

It is important to note that the possible changes outlined below are only at consultation stage. No changes will be finalised before the consultation closes on 9^th September.

Changes to the Immigration Rules are usually introduced in April of each year, so we expect that any changes adopted from this consultation will come into force in April 2012.

The UKBA has stated that any changes will apply to people who first entered the affected categories from April 2011 onwards, thereby affecting a small number of people already in the UK as well as people entering the UK after the changes have been implemented. We await further clarification on this point.

Tier 1

The UKBA has proposed that limited leave (visas with expiry dates) under Tier 1 be restricted to 5 years in total. Migrants will continue to qualify for settlement (ILR) as they do currently. However, any migrants that do not qualify for settlement would not be able to extend their temporary leave. They would therefore need to leave the UK after 5 years.

Tier 2

The UKBA has proposed that Tier 2 become a temporary category, with Tier 2 migrant having no automatic route to settlement (ILR) in the UK. They suggest that the ‘best’ Tier 2 migrants could either be given a different visa from the start, leading to settlement, or be allowed to switch into a new category after 3 years in the UK. In both cases, the qualifying period for ILR would remain 5 years. The UKBA has suggested several possible methods of choosing which Tier 2 migrants should be able to qualify for settlement, including a lottery system or a points test. There may also be a limit on the number of people allowed to qualify for settlement.

Any migrants who were not chosen to enter or switch into the new category leading to settlement would have their total leave under Tier 2 capped at 5 years. Therefore, any Tier 2 migrants not selected to settle would have to leave the UK at the end of 5 years.

Furthermore, the UKBA suggests that these migrants would then have to spend a minimum period of 12 months outside the UK before applying for another Tier 2 visa.

As outlined above, the UK Border Agency has stated that those who entered Tier 2 before April 2011 should not be affected by any potential changes brought into force after the consultation.

English language for dependants

The UKBA proposes to introduce an English language requirement for dependants, where the main applicant’s visa leads to settlement. The suggested level would be A1 of the CEFR; a basic English language level.

Potentially, dependants of Tier 2 migrants entering with the new visa leading to settlement, or switching into the new route for settlement after 3 years in the UK, would have to demonstrate their English language ability at this stage.

Tier 4

There are no further proposed changes to Tier 4, as it does not lead to settlement.

Tier 5

The UKBA has suggested capping the total leave of migrants in the UK under the Tier 5 temporary workers category to 12 months. Currently, some Tier 5 leave can be extended for up to 6 years.

In addition, the UKBA proposes to remove the provision for dependants to join Tier 5 migrants in the UK. Currently, the spouse and children of some Tier 5 migrants are able to join them in the UK, and are usually free to work in the UK.

The Tier 5 Youth Mobility Scheme will be unaffected by these proposals.

Overseas domestic workers – in private households

The UKBA has suggested that most overseas domestic workers should be granted entry to the UK as visitors, thereby limiting their stay to 6 months. Only overseas domestic workers employed by Tier 1 and Tier 2 migrants would be allowed to stay for a longer period, with their leave being capped at 12 months. Currently, overseas domestic workers can extend their stay in the UK, and can qualify for settlement after 5 years.

In addition, the UKBA proposes removing the provision for dependants to join overseas domestic workers. Currently, the spouse and children of overseas domestic workers in private households are able to join them in the UK, and are usually free to work in the UK.

UK Ancestry

There are no proposed changes to the UK Ancestry category.

10 years Long Residence route to Indefinite Leave to Remain

The 10 years Long Residence route has not been mentioned in the UKBA’s current consultation document. However, it has previously been made clear that the UKBA would like to abolish this route to settlement. Unfortunately, there is no confirmation at this stage of whether the 10 years Long Residence route to settlement will remain unchanged.

Your opinion

This consultation is open to the public, and anyone is able to respond to the UKBA’s proposals.

The full consultation document is available here.

The response form is available here.

UK Work Permits would advise anyone who wishes to apply for a visa in any of the affected categories to apply as soon as possible. Please contact us for up to date information and guidance.

Further to earlier posts, the UK Border Agency has recently revealed more details on how the Annual Limit on Tier 2 migration will operate from 6th April 2011

Certificates of Sponsorship

From 6th April, Tier 2 Certificates of Sponsorship will be divided into two ‘notional’ categories, based on whether they will fall under the Limit:

Restricted Certificates of Sponsorship (Re CoS)

There will be an annual limit of 20,700 restricted CoS available to Tier 2 sponsors for the year commencing 6th April 2011.

In general, employers will need a Restricted CoS in order to sponsor a non-EEA national who is currently outside of the UK, so it is perhaps easier to define the situations that will not require Restricted CoS:

Unrestricted Certificates of Sponsorship (Un CoS)

From 6th April, there will be situations where Sponsors do not need to apply for a CoS that is subject to the Annual Limit. These situations are as follows:

• Tier 2 (Intra-Company Transfers);
• Tier 2 migrants or Work Permit holders with valid leave who are extending their stay or changing employer;
• Those in another category of stay applying to switch into the Tier 2 (General) category (where switching rules allow this). This includes those currently holding Student, Tier 4, or Tier 1 (Post-Study Work) visas;
• Those seeking admission to fill a vacancy attracting a salary of £150,000 or more.

There will be no limit on the number of CoS that Sponsors can issue to migrant workers in the situations described above. However the UKBA will expect employers to be reasonable in their requests for Unrestricted CoS, and Sponsors will need to provide reasons for requesting a particular number of these.

Restricted Certificates of Sponsorship

In order to obtain a Restricted Certificate of Sponsorship, Sponsors will need to apply to the UK Border Agency, in a manner similar to the system that has been in place since July 2010. The Annual Limit of 20,700 CoS will be divided up into a monthly limit of 1,500 (with 4,200 being available in the first month of the Limit, April 2011). The UKBA will award CoS to those applications that score the highest number of points in a specific published points test.

Points gained for Shortage Occupation List jobs will put these requests in front of the vast majority of non-Shortage Occupation requests. The UKBA has also defined a very short list of ‘PhD level’ jobs which gain additional points.

At each monthly panel meeting, the UKBA will award CoS to requests with the most points first. Where awarding CoS to all requests at a certain points level would exceed the number of CoS left for that month, the UKBA will only award up to 100 extra CoS per month, for requests which meet that particular points level. In this way, the actual monthly quota will probably fluctuate slightly each month (from the preliminary 1,500).

The UKBA accepts requests for Restricted CoS quotas via a new online system, and these requests can only be made within 3 months of the intended start date. Requests submitted by the 5th day of a month will be decided on the 11th day of the same month (the ‘Allocation Date’). Unlike under the Interim limit, it will no longer be possible to provide an ‘explanation’ as to why it is vitally important to the company that a CoS be issued. Requests will be decided purely on the basis of the number of points they score.

Once a Restricted CoS has been granted, it must be assigned within 3 months.

Unrestricted Certificates of Sponsorship

Where employers wish to sponsor migrant workers in situations that only require Unrestricted CoS (as defined above), this will be much more straightforward: employers will be given an annual quota of Unrestricted CoS at the start of each year. Sponsors have previously been given quotas to run for twelve months from the date of the approval of their Sponsor’s Licence. All annual quotas will now run from 6th April 2011 – 5th April 2012.

On 6th April, all Certificates of Sponsorship (both General and ICT) will be wiped from all Sponsor Management Systems. Employers will only receive a quota of Unrestricted CoS where they make a one off request for such a quota. For employers who applied by 11th March, a quota for Unrestricted CoS should be in place as of 6th April. If a sponsor has not applied before this deadline, they should apply as soon as possible: it isn’t clear how long the UKBA will take to consider these applications.

Changes to Tier 2 (General)

Graduate level

Significantly, as of 6th April, Tier 2 will be restricted to Graduate level jobs, or, to be more specific, jobs deemed to be at NVQ level 4. The UK Border Agency has published new sub-sets of the ‘Codes of Practice’, identifying roles and occupations in each level. The requirements apply as follows:
• In order to qualify for a Restricted CoS, the role will need to be identified as being at NVQ level 4.
• In order to qualify for most unrestricted CoS, the role in question will need to be at NVQ level 4.
• However, in the case of Change of Employment and work permit / Tier 2 extensions, a role deemed to be at NVQ level 3 will be adequate.

It will not be necessary for the applicant to hold a degree level qualification – the new requirement is merely an indication of the skill level of the role that the applicant will be engaged in.

This list of Graduate Level jobs is likely to prove highly contentious. It will not normally be possible for sponsors to successfully argue that a particular role is at graduate level if it appears to not be included in the NVQ 4 list. However in some industries it may be possible to ‘move’ the role up into a Code of Practice that is deemed to be at NVQ 4.

The requirement for roles to be at NVQ 4 (or higher) has also meant that all positions deemed to be below this level have been removed from the Shortage Occupation List, which has now been revised. More information on the revised Shortage Occupation list can be found here.

English Language requirement

Where applicants under the Tier 2 (General) scheme are not from a 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.

Changes to Tier 2 (Intra-Company Transfers)

Graduate level

As with the Tier 2 (General) scheme, the Tier 2 (Intra-Company Transfer) scheme will be restricted to Graduate level (NVQ 4) roles only.

Minimum salaries

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.

In both of the above cases, a migrant worker will not be able to apply for a new Tier 2 (ICT) visa until 12 months after their last visa has expired, i.e. they will need to leave the UK for a year before coming back in under this scheme.

The annual limit means that CoS are in limited supply, and it is crucial that employers submit the correct requests in the correct timeframes and with appropriate explanations. Any employer requiring more information or assistance in this area should call one of our Consultants on 0845 226 4030.

The Government announced on 14^th March 2011 that it will remove 8 occupations from the Points Based System’s Shortage Occupation List in order to comply with the new requirements for all Tier 2 occupations to be skilled to at least National Qualifications Framework (NQF) level 4. Positions below this level will no longer be considered highly skilled enough to qualify for Tier 2 whether the position is in the Shortage Occupation List or not.

This requirement will apply to all Tier 2 (General) applications from 6^th April 2011, except for extensions from Tier 2 and Work Permits where the role is unchanged. I.e. individuals who already have a Tier 2 or Work Permit visa for a role on the ‘old’ shortage occupation list will still be able to extend their visas, even where the role has now been removed.

The occupations that will be removed will include skilled senior care workers as well as certain chef positions.

If an occupation is on the Shortage Occupation List, the likelihood of a request for a ‘restricted’ Certificate of Sponsorship for this position being successful is much higher than for an occupation not on the Shortage Occupation List. This is due to the way the UK Border Agency will now prioritise restricted Certificate of Sponsorship requests. The fact that a position is on the Shortage Occupation List also means that the company is not required to meet the residential Labour Market test for the position.

The full list of occupations to be removed from the Shortage Occupation List is as follows:

• High integrity pipe welder;
• Skilled meat boner;
• Skilled meat trimmer;
• Airframe fitter;
• Site supervisor within electricity transmission of distribution industry;
• Skilled work rider;
• Skilled sheep shearer;
• Skilled senior care worker.

Please note that the removal of the skilled senior care worker role will not affect those seeking sponsorship as care home managers or nurses working in care homes. These are separate roles which are considered to be skilled to NQF level 4.

Additionally, some job titles are subject to amendment. Chef jobs on the list will be restricted to those requiring a minimum of 5 years experience at the same or higher status, and paying at least £28,260 per year (after deductions for meals and accommodation). The position must not be in a fast food outlet or an establishment which provides take-away services, or where ‘standard fare’ is served (where dishes are not prepared from fresh/raw ingredients). The position itself must also be one of the following:

• Executive chef (limited to one per establishment)
• Head chef (limited to one per establishment)
• Sous chef (limited to one for every four kitchen staff per establishment)
• Specialist chef (limited to one per speciality per establishment)

For advice and information on whether a role will be considered for Tier 2 under the Shortage Occupation List, click here to contact us.

Results of January 2011 UK Border Agency Panel Meeting

The UK Border Agency has recently published the results of its Panel Meeting from the beginning of January 2011. For an explanation of this process, please refer to our previous news article here.

This month, the UK Border Agency has awarded Tier 2 (General) Certificates of Sponsorship to requests for roles with a salary at or above the following:

For shortage occupation roles:                      £28,000 per annum

For non-shortage occupation roles:               £36,000 per annum

For several months prior to January 2011, the threshold salaries were set at £20,000 for shortage occupation roles and £32,000 for non shortage occupation roles. These new figures indicate that these thresholds are subject to change from month to month, and may well go down again for the two monthly panel meetings left before the permanent cap is introduced in April this year.

UK Work Permits would not discourage sponsors from submitting requests this month even if the request is for a role with a salary below the thresholds stated above. There is no fee for submitting a request, and if it is rejected, there is nothing to stop it being submitted the following month.

UK Work Permits is always happy to give free initial advice regarding the viability of requests for Certificates of Sponsorship, and the process of issuing those CoS once granted. If you would like to make a request or have any further queries, please contact us.

Interim immigration cap ruled unlawful following High Court judgment

The interim immigration cap which was introduced in July 2010 to prevent a ‘rush’ of applications prior the permanent limit in April 2011 has been ruled unlawful by the High Court, following a challenge by the JCWI and ECCA.

The High Court judges concluded that the home secretary had not gone through the proper parliamentary procedures before implementing the cap.

Our understanding of this judgment is that the interim cap is no longer in force. This means there is no current restriction on the number of Tier 1 (General) visas that may be granted from outside of the UK, or the number of Certificates of Sponsorship which may be issued to employers in the UK. However, it should be mentioned that the granting of Certificates of Sponsorship was always subject to the discretion of the UK Border Agency.

Damian Green, immigration minister, has suggested that the Government may appeal the verdict and has stated “We will do all in our power to continue to prevent a rush of applications before our more permanent measures are in place.”

We would recommend that individuals wishing to apply for Tier 1 (General) from outside of the UK should apply as soon as possible, so as to take advantage of the apparent ‘stop’ in the interim immigration cap.

We would also recommend that any companies wishing to sponsor migrant workers proceed as soon as possible.

Many of the precise implications of this judgment are as yet unclear. We will publish more information as soon as it becomes available.

UK Work Permits is always happy to give free initial advice regarding the viability of visa applications. If you would like to make an application or have any further queries, please contact us.

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.

UK Home Secretary announces important changes to Tier 1 and Tier 2 routes in April 2011

Further to a speech by the Home Secretary, Theresa May, on 23rd November 2010, the UK Government is to introduce the following changes to Tier 1 of the points based system:

• The Tier 1 (General) route will be closed entirely from April 2011;
• A brand new category will be introduced as part of Tier 1. This route will be for individuals with ‘exceptional talent’ i.e. scientists, academics and artists who have achieved international recognition or are likely to do so. There will be an annual cap of 1000 visas for this category;
• There will be no cap on the number of visas granted under the Entrepreneur and Investor categories. Under this category the Government will create a new route for start-up companies which do not meet the current investment threshold;
• The UK Government has announced that they are investigating closing the Tier 1 (Post-Study Work) category. No decision on this has yet been made.

The Government will also introduce the following changes to Tier 2 in April 2011:

• An annual limit of 20,700 Tier 2 (General) out of country applications. This is an increase of 7000 in comparison to last year’s number;
• The Tier 2 (General) category will be limited to graduate level jobs. Although individuals already in the UK holding Tier 2 (General) in jobs below graduate level will be able to extend their permission to stay;
• A salary threshold of £40,000 on Tier 2 (Intra-Company Transfers) where the migrant employee will be here for longer than 12 months.
• Individuals entering the UK on a Tier 2 (Intra-Company Transfer) will be restricted to 5 years’ stay in the UK.

We would advise anyone who is currently outside of the UK and intending to apply under the Tier 1 (General) scheme to apply as soon as possible. Due to the current ‘limit’, out of country applications are subject to delays. Any applications that are pending upon the removal of the Tier 1 (General) scheme are likely to be automatically refused.

We will keep you updated on these changes and further information will be published shortly. If you have any queries, please contact us.

UK Border Agency overhauls Interim Limit on granting Certificates of Sponsorship under the Tier 2 (General) scheme

Further to the introduction of an Interim Limit on the number of Certificates of Sponsorship (CoS) Tier 2 Sponsors can issue, the UK Border Agency has announced important changes to the way in which requests for CoS are handled and decided.

The most significant change is that the UK Border Agency has now confirmed that it will grant all applications for CoS where the Certificate is to be used in an extension application. In order to qualify for consideration as an extension, the CoS must be required for an existing migrant worker who:

Is currently employed by the sponsor requesting the CoS; and

Currently holds a Work Permit or Tier 2 (General) visa.

Requests for holders of Tier 1 (Post Study Work) and Tier 1 (General) visas would not be considered as extensions.

Once all requests for CoS for extension applications have been granted each month, the remaining CoS will be split into two categories, Shortage Occupation roles, and non-Shortage Occupation roles. The UK Border Agency has said that the number of CoS available for each of these two categories will be proportionate to the number of requests received in these two categories (in relation to each other). For example, if, in any given month, the UKBA receives 5000 non-Shortage Occupation requests and 1000 Shortage Occupation requests, they would be likely to award the remaining CoS to the two categories in the ration of 5:1.

It should be noted that previously, Shortage Occupation requests were supposedly granted preference over non-Shortage Occupation requests. This is no longer the case, and seemingly the only advantage gained by a Shortage Occupation request is that its salary will only be ‘competing’ against other Shortage Occupation requests (rather than non-Shortage Occupation requests, which would typically have a higher salary).

Once the requests have been sorted into the two categories specified above, the UK Border Agency will rank them (separately in each of the two categories) according to the following criteria:

Salary is at or above £40,000

Salary is between £36,000 and £39,999.99

Salary is between £32,000 and £35,999.99

Salary is between £28,000 and £31,999.99

Salary is between £24,000 and £27,999.99

Salary is between £20,000 and £23,999.99

Salary is less than £20,000 (shortage occupations only)

The decision of whether or not to grant CoS will be made on the basis of the above criteria. Within salary brackets, it is likely that the ‘explanation’ offered by the sponsor (as to why it is so important to sponsor a migrant worker in the particular role) will offer the UKBA further opportunity for differentiation.

The UK Border Agency has also announced that the total number of CoS available during the interim limit (i.e. 19th July 2010 – 31st March 2011) is 18,700. This is equivalent to approximately 2209 per month although the UK Border Agency has previously denied that it will grant a predetermined number each month.

There are still plenty of unanswered questions concerning the Interim Limit. UK Work Permits is currently requesting answers to these questions, so as to provide greater certainty to our clients. We would advise employers looking to sponsor migrants to get in touch with us so that we can offer advice on the viability of such an application.

Industry opposition to the Tier 2 limit continues to increase

Update on the Tier 2 interim limit

The interim limit

The interim limit on Tier 2 (General) visas was introduced on 19^th July 2010 and is intended to continue until 31^st March 2011. The current interim limit was introduced to stop a surge of applications before the permanent cap is introduced in 2011.

For further information on the interim limit, please see our previous news story here.

Reactions

The interim limit has caused strong reactions in many areas, including from UK business leaders, and those representing the rights of the migrant workers  UK Work Permits Ltd has also experienced, first hand, severe difficulties in obtaining Certificates of Sponsorship, and the problems that this can cause potential employers, who are left without essential skilled staff. Some particularly notable reactions are highlighted below: 

Vince Cable

Business secretary Vince Cable, has recently described the immigration limit as “very damaging” to the British economy. He argues that businesses will be forced to move jobs abroad.

He has made his continued opposition to the current limit clear, and is apparently looking for a more flexible solution, which would allow variation in the limit according to the economic climate.

A news story in the Guardian regarding Vince Cable’s comments can be found here.

British Chambers of Commerce

The British Chambers of Commerce have made their concerns regarding the interim limit clear, describing the potential “damage to the economy” that a poorly considered immigration limit could have. They believe that a balance needs to be struck to ensure future economic growth in the UK.

A news story in the Independent regarding the British Chambers of Commerce’s comments can be found here.

General Electric

Mark Elborne, General Electric’s Chief Executive for North Europe, has made public the difficulties that he has encountered due to the interim limit. He has been unable to hire key staff and believes the interim limit has made the UK less attractive for potential investors. International businesses, he states, will see the UK as a “difficult place to do business”, threatening long-term growth.

A news story in the Telegraph regarding General Electric’s opinions of the interim limit can be found here.

CBI

The Confederation of British Industry (CBI), a business organisation which represents 240,000 businesses in the UK, has also spoken harshly of the way in which the interim limit has been put in place.

John Cridland, the Deputy Director-General of the CBI, has spoken of the “serious problems” caused by the interim limit, and points out that the figures used to calculate the level of the limit were “artificially low”. He states that companies have been left without the employees they need for growth, struggling with only “a handful of non-EU specialist staff.”

The CBI’s news release regarding the interim limit can be found here.

JCWI

The Joint Council for the Welfare of Immigrants (JCWI) is a charity which campaigns for justice in immigration matters.

The JCWI has maintained since its introduction that the limit on the number of migrant workers is not in the “economic interests of the UK”. Habib Rahman, chief executive of the JCWI, has called the limit “unnecessary” and “economic suicide”.

In accordance with this view, the JCWI are now fighting for a judicial review of the interim limit. Permission for the judicial review has yet to be granted.

The JCWI consultation response can be found here.

Habib Rahman’s comments on the interim limit can be found here.

What would a Judicial Review achieve?

The aim of a judicial review, if granted, will be to revoke or significantly alter the interim limit, in the favour of UK business and individual migrant workers. The JCWI claim that the interim limit was introduced without proper parliamentary approval, since neither the level of the limit nor details of how it would operate were presented to parliament.

The case is expected to be heard in the coming months if permission is granted for judicial review and hopes remain high that this challenge will be successful. Previous changes to the Points Based System have been recognised as having been made unlawfully and judicial reviews of immigration rules have had positive outcomes in the past.

A news story in the Independent regarding the JCWI’s attempt to bring about a judicial review can be found here.

Home Office response to the threat of a Judicial Review

Damian Green, the immigration minister, has announced that the government will “rigorously defend” any challenge made against the limit, which it introduced in order to decrease immigration by 5%.

A news story on the UK Border Agency website regarding the challenge against the interim limit can be found here.

Summary

There is clearly a significant backlash against the Tier 2 interim limit (and crucially, the rationale behind the current level, and the way the limit is being administered). It is affecting a large number of industries within the UK, and employers of all sizes (including many with significant influence and lobbying power).  The Government / UKBA is under significant pressure, including an attempted Judicial Review.  UKWP predicts that this  pressure is likely to increase until or unless something is done to reduce the negative impact of the limit, or until the long term limit is introduced in Spring of 2011. UKWP will continue to direct resources towards conveying our clients’ requirements to the UKBA, however, our resources are subject to practical limits, and it appears that currently, the Government / UKBA are taking an extremely rigid approach, regardless of very significant resistance from many sources.

There is certain to be more news on this subject in the near future. UKWP will post more nformation on this topic as soon as there are any significant developments.