Annual Limit on Tier 2 of the Points Based System
As of the 6th April 2011, the interim limit on Tier 2 migration will be replaced by a new Annual Limit. The main effects of this are outlined below.
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)
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)
As with the Tier 2 (General) scheme, the Tier 2 (Intra-Company Transfer) scheme will be restricted to Graduate level (NVQ 4) roles only.
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.